Ex Parte Brown

This proceeding presents but one question. Did the county court of Payne county, convened at the court town of Cushing, have jurisdiction of the party and of the offense for which he was tried?

Article 13, c. 19, p. 255, of the Session Laws of 1907-08 entitled "An act to provide for holding sessions of the county court of Payne county, Oklahoma, at the town of Cushing, in said county," provides for holding sessions of the county court of Payne county at the town of Cushing. Section 2 of said act reads as follows:

"Sec. 2. The jurisdiction of said court shall be the same in all respects as if exercised at the county seat. Any person instituting proceedings in said court may file, at the time, an affidavit, showing that the convenience of the parties in interest requires the hearing to be had at said town, and it shall be so ordered; provided, that such parties may subsequently agree to transfer such hearing to the county seat."

The petitioner at every stage of the proceedings objected to being tried at Cushing. Counsel for petitioner contends that the trial, conviction, and sentence in the county court of Payne county convened at Cushing was illegal, null, and void for want of jurisdiction, and argues ingeniously that the affidavit provided for in said section 2 is a necessary prerequisite to obtaining jurisdiction to try the cause at the town of Cushing. He places particular stress upon the clause fixing the time the affidavit should be filed. That portion of said section reads as follows:

"Any person instituting proceedings in said court may file, at the time, an affidavit, showing that the convenience of the parties in interest requires the hearing to be had at said town, and it shall be so ordered."

Counsel in his brief says:

"The phrase ``at the time' can refer to no time other than the time when the proceedings are instituted, and in this case they were instituted when the information was filed on September 30, 1909. They certainly had been ``instituted' long before October 4, 1909, when defendant was arraigned and entered his plea of not guilty to the charge, and long before October 15, 1909, when the defendant's written demand for a trial at Stillwater was overruled by the county court and when the county attorney filed the affidavit for a transfer of the cause to the town of Cushing. As we view it, the law simply means that the county court at Stillwater never has jurisdiction to try a cause except by retransfer under the agreement of the parties if the affidavit for transfer has been filed at the time the proceedings are instituted, and, on the other hand, if the affidavit is not filed ``at the time' the proceedings are instituted, the court at Stillwater has full and complete jurisdiction of the case, from which it cannot be ousted by an affidavit subsequently filed, after arraignment and plea and written demand for trial by the court at Stillwater."

We cannot believe that this contention is well founded. As we view this provision, it furnishes merely a rule of practice applicable in a certain class of cases. The jurisdiction of the county court of Payne county is the same in all respects, whether the sessions are held at the county seat or at Cushing.

Section 1, art. 7, of the Constitution, provides:

"The judicial power of this state shall be vested in the Senate, sitting as a court of impeachment, a Supreme Court, district courts, county courts, courts of justices of the peace, municipal courts, and such other courts, commissions or boards, inferior to the Supreme Court, as may be established by law."

In section 11 of said article 7 it is provided:

"There is hereby established in each county of this state a county court, which shall be a court of record."

In section 12 of said article 7 it is provided:

"County courts shall have jurisdiction concurrent with justices of the peace in misdemeanor cases, and exclusive jurisdiction in all misdemeanor cases of which justices of the peace have not jurisdiction."

In section 13 of said article 7 it is provided:

"The county court shall be held at the county seat, but the Legislature may provide for holding sessions of the county court at not more than two additional places in the county."

Section 2007, Snyder's St., provides:

"In the several counties of this state commencing on the first Mondays of January, April, July and October of each year, except as otherwise herein provided, county court shall convene at the county seat and continue in session so long as the business may require: provided, that said court shall always be open for the transaction of all probate business in their respective counties.'"

Section 2009, Snyder's St., further provides:

"If there is only one place other than the county seat at which it is provided by law for holding terms of the county court, the terms of said court at such place shall commence on the first Mondays of February, May, August and November of each year, and continue in session for the period of 3 weeks, if the public business requires it."

It appears from the agreed statement that the October term of the county court of Payne county convened at Cushing on Monday, November 1st, as prescribed by section 2009, Snyder's St., above quoted, and, in the exercise of its exclusive jurisdiction to try this class of misdemeanors, the petitioner was there tried, convicted, and sentenced for a violation of the prohibition law. Where the power of a court in a particular matter is derived directly from the Constitution, it is not a special jurisdiction, and jurisdiction will be presumed unless the contrary appears of record. Ex parte Earl Howard, 2 Okla. Cr. 563, 103 P. 663. Section 5137, Snyder's St., provides:

"The proceedings of this court are construed in the same manner, and with like intendments, as the proceedings of courts of general jurisdiction, and to its records, orders, judgments and decrees, there are accorded like force, effect and legal presumption as to the records, orders, judgments and decrees of district courts."

We are of opinion that the manner and method of assigning criminal cases for trial by the county court of Payne county, at the county seat or at the town of Cushing, is not jurisdictional, and therefore does not present a question that will be reviewed in a habeas corpus proceeding. In section 6207, Snyder's St., it is provided that:

"No court or judge shall inquire into the legality of any judgment or process, whereby the party is in custody, or discharge him when the term of commitment has not expired in either of the cases following: * * * (2) Upon any process issued on any final judgment of a court of competent jurisdiction."

Upon principles which may be considered well settled by a series of decisions of this court, the writ of habeas corpus does not lie to correct mere irregularity of procedure, where there is jurisdiction. There must be illegality or irregularity sufficient to render the proceedings void for want of jurisdiction. Ex parteCharles Johnson, 1 Okla. Cr. 414, 98 P. 461; In re Geo.McNaught, 1 Okla. Cr. 528, 99 P. 241; Ex parte Flowers,2 Okla. Cr. 430, 101 P. 860; Ex parte Earl Howard, supra; Ex parteMingle, 2 Okla. Cr. 708, 104 P. 68; Ex parte Justus, ante, p. 111, 104 P. 933.

The statutes contain 37 acts creating county court towns. It is to be regretted that many of these acts were drawn carelessly and with a total disregard of legal certainty, and there seems to have been no effort to secure uniformity in their various provisions. The various acts were necessarily fruitful of legal questions. To relieve this condition the general law was passed, to wit, article 9, c. 14, p. 191, Sess. Laws 1909, providing for uniformity in the sessions of county courts in the several counties in the state, and repealing all laws in conflict therewith. This act became effective June 11, 1909. The constitutionality of this law is unquestionable.

Viewing the law as we do, the application for writ of habeascorpus for the release of the petitioner will be denied.

FURMAN, PRESIDING JUDGE, and OWEN, JUDGE, concur.