Nichols v. Levy

This is an original proceeding in this court for a writ of prohibition against the defendant to prohibit him from acting as county judge of Oklahoma county. It is alleged and admitted that the defendant is attempting to act as county judge of Oklahoma county under the authority of House Bill No. 131 of the Thirteenth Legislature. The defendant contends that when section 11, art. 7., of the Constitution is read and construed in connection with section 2, art. 17, of the Constitution, the legislative enactment in question is valid and constitutional. The real issue, as stated by the defendant, is, "Does our Constitution prohibit the Legislature from providing for more than one judge for the county court regardless of the size of the county or the amount of court work?"

The defendant presents four contentions as follows:

"1. Our state Constitution, so far as it relates to the legislative department, is not a grant of enumerated powers to the state government, but is a limitation thereon, and that department possesses all the legislative powers not prohibited or restricted by the provisions of the Constitution. Burks v. Walker, 25 Okla. 353, 355, 109, Pac. 544.

"2. 'A restriction or limitation upon the power of the Legislature, on any subject of legislation, will not be presumed or implied, unless from the entire instrument it appears that it was so intended.' State ex rel. v. Hooker,22 Okla. 712, 98 P. 964.

"3. 'It is not on slight implication and vague conjecture that the Legislature is to be pronounced to have transcended its powers, and its acts are to be considered void. The opposition between the Constitution and the law should be such that the judge feels a clear and strong conviction of their incompatibility with each other.' Chief Justice Marshall in Fletcher v. Peck, 6 Cranch, 87. 128, 3 L.Ed. 162; Anderson v. Ritterbusch, 22 Okla. 761, 98 P. 102. See, also, Rakowski v. Wagoner, 24 Okla. 282, 103 P. 632; McCord v. State,2 Okla. Cr. 214, 101 P. 280; Stout v. State ex rel. Caldwell,36 Okla. 744, 130 P. 553.

"4. Two constitutional provisions relating to the same subject-matter must, if possible, be so construed as to give effect to every part."

The defendant contends that under section 2, art. 17, supra, the Legislature has express power to make changes in county offices unless in conflict with section 11, art. 7, supra, and calls attention to the abolishment of the office of register of deeds by the consolidation of the duties of that office with those of the county clerk (chapter 181, Session Laws 1913), the consolidation of the duties of the clerk of the county court and clerk of the district court in a court clerk (chapter 161, Session Laws 1913), additional duties imposed upon the county court in the care of delinquent and dependent children, and service upon the excise board. The power to increase the duties has been sustained by the decision of this court in Anderson v. Ritterbusch, 22 Okla. 761, 98 P. 1002.

The defendant contends that "there is nothing in the nature of the county court or in the office of county judge, as defined by the Constitution, which inhibits the idea of more than one judge" and calls attention to the fact that "district courts have their plural judges to meet the exigencies of court business and such plurality has been upheld by this court."

The defendant states the rule of construction to be:

"When words and phrases are employed in one part of a statute or written Constitution in a plain and manifest sense, they are to receive the same interpretation when used in every other part unless it manifestly appears from the context, or otherwise, that a different meaning was intended to be applied to them. Walton v. Donnelly, 83 Okla. 233, 201 P. 367."

He calls attention to the fact that "a," "the," "he," and "his" are used in precisely the same manner in sections 9 and 11, art. 7, supra.

By virtue of section 1, art. 7, of the Constitution, the judicial power of this state is vested in the Senate, sitting as a court of impeachment, certain courts therein named, "and such other courts, commissions or boards, inferior to the Supreme Court, as may be established by law." The jurisdiction of the Supreme Court is fixed by section 2, art. 7, and there is no provision therein for the changing thereof, except as to criminal cases when a Criminal Court of Appeals "shall be established by law." By section 3, art. 7, of the Constitution, it is provided that the Supreme Court shall consist of five Justices "until the number shall be changed by law;" the state shall be divided into five Supreme Court judicial districts "until the Legislature shall change the number of members of the court," and candidates for Justices of the Supreme Court shall be nominated "in the manner provided by law." The manner of the election of a Chief Justice is prescribed by section 6, art. 7, of the. Constitution, and "thereafter the Chief Justice shall be elected in the manner provided by law." The manner of invoking the appellate and original jurisdiction of the Supreme Court is prescribed by section 8, art. 7, "until the Legislature shall otherwise provide." It is clear that provision is made throughout those sections for certain legislative changes in the constitutional provisions. Similar provisions for changes with reference to district judges appear. By section 9, art. 7, the state shall be divided into 21 judicial districts "until otherwise provided by law." The original jurisdiction of district courts, by section 10, art. 7, may be changed "by law" except as therein limited, and the appellate jurisdiction of district courts may be changed "by law" except as therein limited. By that section the district courts, "or any Judge thereof," shall have power to, issue certain writs.

Section 11, art. 7, supra, provides for the establishment in each county of "a county court;" that there shall be elected in each county "a county judge" who shall hold "his" office until the time fixed therein, and that thereafter the term of office of "the county judge" shall be two years and that "he" shall be elected at each biennial general election. The qualifications of "the county judge" are prescribed. "The county judge" shall be "judge of the county court." Nowhere is there any provision therein for the changing of any of those constitutional provisions. The next section, section 12, art. 7, provides for original jurisdiction of the county court "until otherwise provided by law" under the limitations therein contained and for the appellate jurisdiction "as may be provided by law." While section 10, Id., provides that the district courts "or any judge thereof" shall have power to issue writs, section 12, Id., provides that the county court "or judge thereof" shall have power to issue writs. Section 9, art. 7, Id., provides that, in the event "any judge" shall be disqualified, a judge pro tempore may be agreed upon, while section 12, art. 7, Id., provides that when "the county judge" is disqualified, a judge pro tempore may be selected. The appellate jurisdiction of the county court is prescribed by section 14, art. 7, Id., "until otherwise provided by law." Appeals in probate matters in the county court to the district court are provided by section 16, art. 7, Id., "until otherwise provided by law." Section 18, art. 7, Id., provides for the jurisdiction of the justices of the peace "until otherwise provided by law."

Section 9, art. 7, Id., authorizes the Chief Justice to designate another district judge to hold any term of court in a district in lieu of the district judge elected therein; to appoint any district judge of the state to hold court in any district court, and to designate some other district judge to try cases in which the district judge elected shall be disqualified and no judge pro tempore shall have been elected. It further provides that two or more district judges may sit separately in any district at the same time. Section 11, art. 7, Id., contains none of those provisions. Certainly there is as much reason for such provisions with reference to county judges as there is for them with reference to district judges and the fact that those provisions were not included in section 11, Id., must be given some effect.

An examination of article 7, Id., entitled "Judicial," discloses that the makers of the Constitution repeatedly provided for changes in certain of the provisions thereof by law, but nowhere therein does it appear that there was any provision made for increasing the number of county judges in any county by law. It seems that a constitutional convention would not in terms provide for the changing of the jurisdiction of a justice of the peace by the Legislature and at the same time intend to change the number of county judges, without saying so in plain and unambiguous terms. It seems that a constitutional convention would not in terms provide for the changing of the jurisdiction of a county court by the Legislature and at the same time intend to have the number of county judges changed, without saying so in plain and unambiguous terms. The context of the article discloses that the makers of the Constitution understood the peculiar conditions affecting the county court and that they considered it important that the office of county judge should not be increased in number.

In our opinion, no other conclusion can be reached when we find that provision was made for sending other district court judges into the district to preside over the district courts in the case of illness of the district judge, or if for any other cause he shall be unable to preside; for sending additional district judges into the district to hold court when the public business required it, and for designating some district judge to try cases where the elected district judge is disqualified and no judge pro tempore has been elected, and that no such provisions were made with reference to the county judge. The makers of the Constitution must have understood that a county judge as well as a district judge might become ill or for other causes be unable to preside over the county court to which he was elected, and it might have been advantageous to have had a provision authorizing the Chief Justice to designate any county judge in the state to hold any term of court in the county in lieu of the judge elected to hold the county court in that county, but no such provision was made. It was doubtless recognized that public business might require other county judges of a state to hold court in the county court in the county when public business should require it, but no provision was made therefor. It was doubtless recognized that it might be advisable for two or more county judges to sit in the county separately at the same time, but no provision was made therefor. Such a provision is attempted to be made by the legislative act under consideration and we are asked to hold that the Legislature had authority to make that provision when the makers of the Constitution made provision therefor with reference to district judges and failed to make provision therefor for county judges. The makers of the Constitution doubtless understood that county judges might be disqualified from trying cases in the county court and that a judge pro tempore might not be elected and that it might be advisable to authorize the Chief Justice to designate some other county judge to try such case, but no provision therefor was made. The obvious reason for the failure, in the sections dealing with the county judge, to include the provisions made with reference to district judges was the particular duties of the county judge. We do not consider it necessary to discuss those duties further than to say that the county judge, sitting in probate matters, has a fiduciary relationship that ought not to be disturbed by any other person. To him is given considerable discretion in such proceeding.

The defendant relies upon section 2, art. 17, of the Constitution, and contends that thereby authority is granted the Legislature to "change the county offices therein named, including the judge of the county court," but the concluding language of that section is, "except as in this Constitution otherwise provided." That section was intended to create, subject to change by the Legislature, certain county offices, including the county attorney, sheriff, and so forth. It cannot be said to have created the office of county judge, for the office of county judge was created by section, 11, art. 7, Id. Section 2, art. 17, Id., provides that there are hereby created, subject to change by the Legislature, certain county offices, except as in this Constitution otherwise provided. No one of the offices enumerated in section 2, art. 17, Id., other than that of county judge, is created elsewhere in the Constitution, and the exception at the end of this section must have referred to the county judge, thereby excepting that office from the legislative authority to make changes in county offices.

It is said that section 18 of the schedule affords some authority for the legislative enactment under consideration, but it will be noted that that section provides for changes in "the terms, duties, powers, qualifications and salaries and compensation" and has no reference to number, and it is likewise limited by the language, "not otherwise provided by this Constitution." The terms, duties, powers, and qualifications of the county judge are otherwise provided by the Constitution.

The language and reasoning of this court in Oklahoma City Land Development Co. v. Hare, 66 Okla. 190, 168 P. 407, and in Re Byrd, 31 Okla. 549, 122 P. 516, is to the effect that one district judge was to be elected in each district except the Thirteenth judicial district, wherein two district judges were to be elected, "until otherwise provided by law." That construction must be given section 11, art. 7, Id., except as to "otherwise provided by law," and the construction to be given section 11, Id., may not include that phrase, for that phrase is conspicuous by its absence from that section.

We cannot follow the reasoning of the Supreme Court of Arkansas in State v. Martin, 30 S.W. 421, to the effect that the articles used in a constitutional provision are too indefinite to define or limit the number of judges which may be provided by legislation. We cannot hold that "a county judge," "the county judge," "his election," and "a lawyer" refer to two or more judges. As well might it be said that the provision in the Constitution for "a Governor" would authorize a legislative enactment for two Governors. The illustration used by the plaintiff is that an agent authorized to buy "a horse" would not thereby be authorized to buy two horses.

In Dixon v. Shaw, State Auditor, 122 Okla. 211, 253 P. 500, this court said:

"When said provisions are called in question, as here, we reach no conclusion but the language used is to be measured by such a well-recognized rule existent at the time of the adoption of the Constitution. But, irrespective of rules of interpretation, we think that the language employed by the makers of the basic law of the state should not be given a strained or subtle meaning, but such meaning as the average citizen would conclude the language imports. This for the reason that the electorate, in ratifying the document and thereby breathing life into the same, considered the provisions as the language used fairly imports."

Judge Cooley, in his work on Constitutional Limitations, at page 69, says:

"In this way a solemn instrument — for so I think the Constitution should be considered — is made to mean one thing by one man and something else by another, until, in the end, it is in danger of being rendered a mere dead letter; and that, too, where the language is so plain and explicit that it is impossible to mean more than one thing, unless we first lose sight of the instrument itself, and allow ourselves to roam at large in the boundless fields of speculation. For one, I dare not venture upon such a course. Written Constitutions of government will soon come to be regarded as of little value if their injunctions may be thus lightly overlooked; and the experiment of setting a boundary to power will prove a failure. We are not at liberty to presume that the framers of the Constitution, or the people who adopted it, did not understand the force of language."

The average citizen who voted for the adoption of the Constitution of Oklahoma noted that there was no "until otherwise provided by law" in the section dealing with the county judge. He had before him section 9, dealing with the district judge, and had an opportunity to observe the distinction in the language of the two sections. The language used was such as to indicate to him that one county judge for each county was to be elected. There was nothing therein to indicate to him that the language meant "at least one county judge" and there was nothing therein to indicate that the Legislature was authorized at some future date to provide for four or five county judges if it saw fit to do so. If the Legislature is authorized to provide for two county judges in Oklahoma county, it is authorized to provide for five if it cares to do so.

The construction placed on statutes or constitutional provisions by officers in the discharge of their duties or by the executive and legislative departments of government, though not controlling, is highly persuasive. Foote v. Town of Watonga, 37 Okla. 43, 130 P. 597; Glasco v. State Election Board, 121 Okla. 119, 248 P. 642; Cooley on Constitutional Limitations, pages 81-84. The legislation prior to the adoption of the act in question indicates the legislative understanding that there was to be only one county judge in each county. When the terms of county offices were increased to, four years, the term of the county judge was not so increased. Chapter 121, Session Laws 1923-24. The history of Oklahoma for more than 20 years discloses no prior attempt on the part of the Legislature to provide for more than one county judge in each county of the state.

The maxim, "Expressio unius est exclusio alterlus" — the expression of one thing is the exclusion of another — was approved by this court in Cornell v. McAlester, 121 Okla. 285,249 P. 959, wherein the court said:

"Although the Constitution does not expressly inhibit the power of the Legislature to so do, yet the affirmation of a distinct policy upon any specific point in a state Constitution implies the negation of any power in the Legislature to establish a different policy."

The Arkansas decision, State v. Martin, supra, is in conflict with the decision of this court in Dancy, Sheriff, v. Owens,126 Okla. 37, 258 P. 879, wherein this court, in considering the constitutional provision with reference to the establishment of this court, with knowledge that the Supreme Court of New York was not the supreme court of that state, said:

"We pause and call attention to certain language, 'a Supreme Court.' The article 'a,' as used here, can have no meaning except one — one Supreme Court."

We hold that the language, "a county judge," as used in section 11, Id., has no meaning except one — one county judge.

We therefore hold that, under the Constitution of Oklahoma, the Legislature of Oklahoma is without authority to provide for the election or appointment of more than one county judge for any county in the state of Oklahoma and that the legislative act under consideration is unconstitutional and void.

The prayer of the plaintiffs is granted and the defendant, D.S. Levy, is prohibited from acting as county judge of the county court of Oklahoma county. Let a peremptory writ of prohibition issue.

CLARK, V. C. J., and RILEY, CULLISON, SWINDALL, and McNEILL, JJ., concur. LESTER, C. J., absent. HEFNER and KORNUGAY, JJ., dissent.