Dabney v. Hooker

I concur in the conclusion reached herein. I do so reluctantly, and only by reason of feeling impelled by reason of the Act of the Legislature of 1925 (chapter 96, Senate Bill 395, Session Acts 1925). Prior to the passage of this act, an action such as instituted in the district court in this case was within the jurisdiction of such court to entertain, try, and render judgment. If the law stood now as it did prior to the passage of the said Act of 1925, this court would be compelled to deny the writ of prohibition prayed.

Section 6123, C. O. S. 1921, provides:

"All contests arising out of primary elections shall be settled and decided in the same manner as is now or may hereafter be by law provided for general elections. * * *"

This section is found in the primary law adopted in 1908 by the first Oklahoma State Legislature. The primary law, therefore, gave by reference to the provisions of the general election law and the procedural statutes existing in aid thereof, a complete right to be heard in the courts. At the basis of this right was the statute on procedure which existed in Oklahoma Territory, adopted in 1893, and which up to the 1925 Legislature read:

"The writ of quo warranto and proceedings by information in the nature of quo warranto are abolished and the remedies heretofore obtainable in those forms may be had by civil action."

The section following 458 provides the circumstances and conditions under which such civil action might be brought and maintained, and incorporates the conditions in the instant case pleaded in the trial court. This section, along with the general election sections, was drawn to the primary election scheme by the said section 6123, which was a part, as aforesaid, of the primary election law passed by the first Oklahoma State Legislature. The last-quoted section (458) was the section that lay at the base of the power of the district court to exercise jurisdiction upon a petition duly filed, as here, in the nature of a civil action, to contest a nomination and pursue the same to final judgment.

But, for some reason beyond the sphere of this court to ascertain by inquiry or otherwise, the Legislature of 1925 rewrote the said section 458; wrote the same out of existence and substituted in lieu thereof a new section, set out in the opinion, and at the conclusion thereof expressly said:

"That this act shall not apply to primary election."

Thus, we find that the very statute which lay at the basis of the power of the trial court to entertain a civil action from statehood down to 1925 was stripped from the provisions of the law and the very thing on which the district court could have, prior to 1925, rested its jurisdiction in such a case was specifically taken from such court by the re-enactment and change of the section. Whether the Legislature at the time of the passage of this act fully realized its far-reaching and destructive effect upon contests arising out of primary elections cannot of course be ascertained by us. Apparently it did not, for an examination of the Journal of the Senate as to the vote on the final passage of this bill shows that only one Senator (Brown of Marietta) voted against it. (Senate Journal, 1925, Legislature, page 1828.) And, on the final passage of this bill in the House (House Journal, 1925, Legislature, page 1996), out of a total membership of 96 there were only ten votes against it. But, whether the Legislature fully realized the effect of the re-enactment of this section or not, the acts of the Legislature are binding upon the court as the court finds them to have been passed.

I am, therefore, impelled to concur in the conclusion reached in this opinion.