Rose v. Arnold ( 1938 )

I am of the opinion that the district court had jurisdiction to suspend the petitioners without giving them notice and a hearing. The statutes and decisions of this court are silent on the subject, but text writers and courts of other states, where the question has been determined, sustain the right. In 22 R. C. L. 564, it is said that "notice and hearing are not prerequisite to suspension unless required by statute." The rule is stated in 46 C. J. 982, that "the power to suspend may, in the absence of a constitutional or statutory provision to the contrary, be exercised without notice to the person suspended."

The case of Griner v. Thomas (1907, Tex.) 104 S.W. 1058, construing a statute that authorized suspension but was silent as to notice and a hearing, held that notice and a hearing are not necessary. The cases of State v. Police Commissioners (1884) 16 Mo. App. 48, and Chase v. City Council of Providence (1914, R.I.) 89 A. 1066, sustained suspension orders where no notice was given. Petitioners have cited no authorities, and I have found none, contrary to the foregoing.

It must be borne in mind that suspension is not the same as removal. Removal contemplates the permanent separation of the officer from the office, and before it can be accomplished, the accused officer must be given the right to face his accusers before a jury, and the removal order cannot be made until he has been found guilty. On the other hand, suspension merely ties the hands of the officer, for the time being, so that he cannot use the power or influence of his office "to seriously embarrass his triers in their approaches to the ends of justice." Maben v. Rosser (1909) 24 Okla. 588, 103 P. 674. It does not determine the guilt or innocence of the accused.

Prohibition is not a writ of right, but one of sound discretion, and should be granted or refused according to the circumstances of each case. Kedney v. Hooker (1930)144 Okla. 148, 289 P. 1108. It is an extraordinary remedy, and "should be used with caution and forbearance, for the furtherance of justice." Hirsh v. Twyford (1913) 40 Okla. 220, 139 P. 313. It should issue only where the absence or excess of jurisdiction is clear. 50 C. J. 657. Can it be clear that the district court in the instant case acted in the absence or excess of jurisdiction in making the suspension orders complained of, when the authorities are practically, if not entirely, unanimous in holding that he did not?

We are free to follow the rule adopted in the other jurisdictions, and to commit to the discretion of the trial judges the question of when the public interest requires an immediate suspension, without notice, and when it is safe to give notice and an opportunity to be heard before it is decided whether suspension shall be ordered. The trial judges should, and can be expected to exercise that discretion with wisdom and proper regard for the rights of the accused officer and the superior rights of the public. I think this is the rule we should adopt, rather than promulgate a new rule, peculiar to Oklahoma, that may, in many cases, be detrimental to the public interest.

Here a grand jury has inquired into the official conduct of the petitioners. They have heard evidence and found therefrom that petitioners have been guilty of official misconduct, and have filed removal charges against them. They have thought the circumstances such that petitioners should be suspended pending the trial of the accusations, and have so recommended. The county attorney and Assistant Attorney General, who presented the evidence to the grand jury, recommended the suspension. The district judge examined the charges and followed the recommendations by entering the orders of suspension. There are no emoluments attached to the office. Petitioners have no property right in the office. They are entitled to an early trial, and will, no doubt, be given one. In the meantime, I am of the opinion that no great wrong will be done the petitioners to keep them under suspension, and it may be very much in the public interest to do so. This view was evidently entertained by the grand jury and district judge, who are more familiar with the circumstances than we are. I think it would be in keeping with our duty to exercise caution and forbearance and a sound discretion to refuse to issue the writ.

For the foregoing reasons. I dissent.