The following questions are essential for determination in order to dispose of this writ: (1) Is the proceeding for the removal of officers provided for in section 23, art. 3, c. 69, p. 611, Sess. Laws 1907-08, a civil action? (2) Is the judge of a district court vested with judicial discretion in determining whether or not a change of venue shall be granted on application, under section 4256, Wilson's Rev. Ann. St. 1903 (Code Civ. Proc. § 58)?
1. Said section 23 in part provides:
"For the purpose of such removal a petition may be filed in the district court of the country wherein such officer resides, in the name of the state, on the relation of any citizen thereof, upon the recommendation of a grand jury, grand juror, or on the relation of the board of county commissioners, or of any attorney appointed by the Governor under the provisions of this act. Summons shall be issued and proceedings had therein to final judgment as in other civil cases. (Italics ours.) * * *"
It clearly appears that when the proceedings is brought under this provision, it is a civil action. It was evidently the intention of the Legislature to place this particular action in the same classification as quo warranto, which is a civil action under all the authorities. State v. Huston et al.,21 Okla. 782, 97 P. 989; State v. Price, 50 Ala. 568, 571; Mabenv. Rosser, Judge, etc., et al. (decided at this term), post, p 588, 103 P. 674. *Page 439
2. Section 10, c. 68, art. 1, p. 592, Sess. Laws 1907-08, of an act entitled "An act designating the counties in which civil actions may be brought, and declaring an emergency," provides:
"In all cases in which it is made to appear to the court that a fair and impartial trial cannot be had in the county where the suit is pending, the court may, on application of either party, change the place of trial to some county where such objections do not exist. Or, when the judge is interested or has been of counsel in the case or subject-matter thereof, or is related to either of the parties by affinity or consanguinity within the third degree, or is otherwise disqualified to sit, the court shall grant a change of judge in accordance with the laws and Constitution of this state."
Without determining the question as to whether or not said section 10 is embraced within the title of the act, in accordance with the provisions of section 57, art. 5 (Bunn's Ed. § 130; Snyder's Ed. p. 173), of the Constitution, we pass to the question as to what difference there is, if any, between this section and section 4256 (chapter 66, art. 5, § 58, Code Civ. Proc.) Wilson's Rev. Ann. St. 1903, which provides:
"In all cases in which it shall be made to appear to the court that a fair and impartial trial cannot be had in the county where the suit is pending, or when the judge is interested or has been of counsel in the case or subject-matter thereof, or is related to either of the parties, or is otherwise disqualified to sit, the court may, on application of either party, change the place of trial to some county where such objection does not exist."
It is insisted that section 10 superseded section 4256, and that when under section 10 the disqualifying affidavit is filed, it is ipso facto incumbent upon the presiding judge to grant a change of judge. The only practical change that is made from section 4256 by said section 10 is that when the judge is interested, or has been of counsel in the case or subject-matter thereof, or is related to either of the parties, or is otherwise disqualified to sit, the court shall grant a change of judge. In said section 4256 the court, on application of either party, may change the place of trial to some county where such objection does not exist. Section *Page 440 4256, before it was transplanted to Oklahoma Territory from Kansas, was construed by the Supreme Court of that state in the case of Kansas Pacific Ry. Co. v. Reynolds, 8 Kan. (2d Ed. 424) 630. Justice Brewer, in delivering the opinion of the court, said:
"When a case is for trial, if the judge has been of counsel, and neither party moves in the matter, he orders the election of a judge pro tem. under section 4, c. 28, above cited (Gen. St. 1868). If, however, either party desires, he may apply under the law of 1870 (section 4256), and by that is entitled to a change of the place of trial. The two acts harmonized do not vest a discretion in the judge, but grant a right to the parties. It is not left with him, but with them, to decide whether to proceed under a judge pro tem., or to take a transfer. The law of 1870 thus adds a condition which is not in the General Statutes. It is not harmonizing, it is legislating, to ignore this condition, and then leave to an officer the choice as to which statute he will act under, especially when such choice might materially affect the rights of a party."
And in the same opinion the word "may," as used in the statute, was construed to mean "must," and that construction has been followed in Oklahoma Territory. See In re Brown,2 Okla. 598, 39 P. 469; Richardson et al. v. Augustine,5 Okla. 667, 49 P. 930. The Legislature, by using the term "shall grant a change of judge," instead of the term "may, on application of either party, change the place of trial to some county where such objection does not exist," in view of the construction of the word "may" in the case of Kansas PacificRy. Co. v. Reynolds, supra, did not render the statute in that respect any more mandatory, and there can be no special significance in the use of the word "shall" instead of the word "may," unless it be to follow literally the express construction of the highest courts of Kansas and Oklahoma Territory. It seems to have been surely the purpose of the Legislature of this state, in enacting said section, to prevent a change of venue or place of trial from one county to another on account of the disqualification of the presiding judge.
The procedure for the disqualification of a district judge in criminal cases, on account of bias or prejudice, is prescribed by *Page 441 subdivision 4 of section 5427, Wilson's Rev. Ann. St. 1903 (Code Cr. Proc. § 291). This statute has been construed by the Supreme Court of the territory of Oklahoma, in the case ofLincoln v. Territory, 8 Okla. 546, 58 P. 730, by the Circuit Court of Appeals for the Eighth Circuit, in the case of Cox v.United States, 100 Fed. 293, 40 C. C. A. 380, and the Criminal Court of Appeals of the State of Oklahoma, in the case ofBuchanan v. State, 2 Okla. Cr. 126, 101 P. 295, holding that when an affidavit was filed in accordance with the provisions of said section, as a matter of right the accused was entitled to a change of judge. A different construction, however, seems to have been placed upon section 4256, supra, relating to judges in the trial of civil cases. In the case of Horton v.Haines et al, recently decided by this court, 23 Okla. 878,102 P. 121, it is held that said section 4256, relating to change of venue, is not imperative or mandatory, and does not require the granting of a change of venue upon any showing made therefor, but that the court is vested with a sound discretion upon the showing made by the applicant to grant or refuse the same, and that on appeal, unless it appears to this court that there has been an abuse of such discretion by the lower court, its action will not be disturbed. In that case an application was made for a change of judge on the ground that the trial judge was biased and prejudiced against the applicant, and for that reason he could not obtain a fair and impartial trial before him. This court held that on the record disclosed it did not appear that the trial court had abused its discretion in overruling the application for a change of judge. See, also,Maharry et al. v. Maharry, 5 Okla. 371, 47 P. 1051;Richardson et al. v. Augustine, 5 Okla. 667, 49 P. 930.
It is a well-settled rule that, where an inferior court has jurisdiction to take the action contemplated under any circumstances, the exercise of such power by him involving a judicial discretion, a writ of prohibition will not lie. It is only where an inferior tribunal is about to do some act wholly unauthorized by law, or in excess of its jurisdiction, that the writ will lie. Ex parte *Page 442 Engles, 146 U.S. 357, 13 Sup. Ct. 281, 36 L.Ed. 1005; In reFassett, 142 U.S. 479, 12 Sup. Ct. 295, 35 L.Ed. 1087; Peopleex rel. Graver v. Circuit Court of Cook County et al., 173 Ill. 272, 50 N.E. 928; State ex rel. Hofmann v. Scarritt, Judge, etal., 128 Mo. 331, 30 S.W. 1026; State ex rel. Franklin v.Raborn, 60 S.C. 78, 38 S.E. 260; Board of Education, etc., v.Holt, 41 W. Va. 435, 41 S.E. 337. In the case of State ofWashington ex rel. Gardner v. Superior Court of Yakima Countyet al., 9 Wn. 308, 37 P. 448, the court said:
"In State ex rel. Cline v. Campbell, 5 Wn. 517, 32 P. 97, we held that a motion of this kind is addressed to the discretion of the superior court, and such court, in the exercise of a matter intrusted to its discretion, will not be interfered with by a writ of prohibition."
It is further insisted that section 23, art. 3, c. 69, Sess. Laws 1907-08, under which this action is brought, is in contravention of section 59, art. 5 (Bunn's Ed. § 132; Snyder's Ed. p. 181), of the Constitution, which provides that "laws of a general nature shall have a uniform operation throughout the state, and where a general law can be made applicable, no special law shall be enacted." The general provision referred to (section 5201, c. 68, art. 4, § 65, Wilson's Rev. Ann. St. 1903) relates to wilful or corrupt misconduct in office, as to county, township, or municipal officers. Said section 23, art. 3, c. 67, p. 611, Sess. Laws 1907-08, relates to sheriffs, constables, marshals, and police officers, and all county and city attorneys, enforcing the prohibition laws of the state, and provides that upon their failure so to do they may be removed from office in a civil proceeding. Laws are general and uniform, not because they operate upon every person within the state, for they do not, but because every person that is brought within the relation and circumstances provided for is within the law, and the fact of their being uniform is not affected by the number of those within the scope of their operation. Arms v. Ayer, 192 Ill. 601, 61 N.E. 851, 58 L. R. A. 277, 85 Am. St. *Page 443 Rep. 357. In the case of City of Pond Creek v. Haskell,21 Okla. 711, 97 P. 358, this court said:
"It is a general act, applicable to every county in the state alike, and to every county seat in the state alike. It is no more a special act than would be a law providing for special deputy sheriffs, special policemen, or for a special jury venire, applicable generally throughout the state. Neither is it a local law requiring publication, but equally general with all other laws."
But it is further insisted that it creates a different procedure from that prescribed in article 4, c. 68, Wilson's Rev. Ann. St. 1903. In said article it is provided (section 5201) that the accusation must be in writing against any county, township, city, or municipal officer, for wilful or corrupt misconduct in office, and may be presented by the grand jury to the district court of the county in or for which the officer accused is elected or appointed (section 5202), and state the offense charged in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended; (section 5203) the judge to whom it is delivered, after receiving the same, must forthwith cause it to be transmitted to the district attorney of the county or subdivision, except when he is the officer accused, who must cause a copy thereof to be served upon the defendant, and require, by written notice of not less than 5 days, that he appear before the district court of the county or subdivision, and answer the accusation at a specified time, when the original accusation must be filed with the clerk of the court; (section 5204) the defendant must appear and answer; if not, an adjudication may be had in his absence; (section 5205) defendant may answer either by objection to the sufficiency thereof, or of any article therein, or by denial of the truth of the same; (section 5209) on plea of guilty, or refusal to answer the accusation, judgment of conviction to be rendered against him; and (section 5210) trial to be by jury, in all respects in the same manner as the trial of an indictment for misdemeanor.
Section 23, art. 3, c. 69, Sess. Laws 1907-08, being a portion of an act relating to the enforcement of the prohibition provision *Page 444 of the Constitution, provides that all sheriffs, constables, marshals, police officers, and all county and city attorneys shall diligently enforce such act; and, if any officer fails or refuses to do or perform any duty required by the provisions of said act, he shall be removed from office as therein provided, by petition filed in the district court of the proper county in the name of the state, on the relation of any citizen, upon the recommendation of a grand jury, grand juror, or on the relation of the board of county commissioners, or any attorney appointed by the Governor under the provisions of said act, summons to be issued and proceedings had to final judgment as in other civil cases, with a proviso that when an order is made suspending such officer, he shall be entitled to demand and have a trial within 10 days, if the court be in session, etc.; a change of judge or change of venue to be allowed as in other civil cases. This act relates to a class, and includes all of that class, to wit, all of the local officers upon whom is imposed the duty of enforcing the prohibitory law.
Section 17, art. 2, of the Constitution of Kansas of 1859 is practically identical with section 59, art. 5 (Bunn's Ed. § 132; Snyder's Ed. p. 181), of the Constitution of Oklahoma. In the case of State ex rel. Johnson v. Hitchcock, 1 Kan. 184, 81 Am. Dec. 503, the court, in construing said section 17, said:
"We understand this section of the Constitution as leaving a discretion to the Legislature, for it would be difficult to imagine a legislative purpose which could not be accomplished under a general law. If it is possible, as we think it is, to frame a general law under which the purpose of any special law could be accomplished, then that provision of the Constitution, if literally construed, would absolutely prohibit all special legislation. Such is not its purpose. It recognizes the necessity of some special legislation, and seeks only to limit, not prohibit it."
The following Kansas decisions support that case: Beach v.Leahy, 11 Kan. 23; Commissioners of Norton County v. Shoemaker,27 Kan. 77; Harvey v. Commissioners of Rush County,32 Kan. 159, 4 P. 153; Weyand v. Stover, 35 Kan. 545, 11 P. 355;City of Wichita v. Burleigh, 36 Kan. 34, 12 P. 332; State *Page 445 v. Sanders, 42 Kan. 228, 21 P. 1073; Hughes v. Milligan,42 Kan. 396, 22 P. 313; Commissioners of Linn County v. Snyder,45 Kan. 636, 26 P. 21; Commissioners of Barber County v.Smith, 48 Kan. 332, 29 P. 565; Elevator Company v. Stewart,50 Kan. 378, 32 P. 33; Eichholtz v. Martin, 53 Kan. 486, 36 P. 1064; In re Greer, 58 Kan. 271, 48 P. 950. See, also, Weston v. Ryan, 70 Neb. 211, 97 N.W. 347, 6 Am. Eng. Ann. Cas. 926, and notes thereto; Guthrie National Bank v.Guthrie, 173 U.S. 528, 19 Sup. Ct. 513, 43 L.Ed. 796; Davis v.Gaines, 48 Ark. 370, 3 S.W. 184; Waterman v. Hawkins,75 Ark. 120, 86 S.W. 844; Sanitary District v. Ray, 199 Ill. 63, 64 N.E. 1048, 93 Am. St. Rep. 102; Mt. Vernon v. Evans, etc.,Company, 204 Ill. 32, 68 N.E. 208; Board of Commissioners ofJackson County v. State, 147 Ind. 476, 46 N.E. 908; Schneck v.City of Jeffersonville, 152 Ind. 204, 52 N.E. 212; Smith v.Grayson County, 18 Tex. Civ. App. 153, 44 S.W. 921; State exrel. Henderson v. Boone County, 50 Mo. 317, 11 Am. Rep. 415;State v. Wilcox, 45 Mo. 458; State v. Pinger, 50 Mo. 486;State v. New Madrid County, 51 Mo. 82; Hall v. Bray, 51 Mo. 288; St. Louis v. Shields, 62 Mo. 247; Ensworth v. Curd, 68 Mo. 282; State v. Aubuchon, 8 Mo. App. 325:
In the case of Oklahoma City v. Shields, 22 Okla. 265,100 P. 576, this court said:
"To determine, under a state Constitution, what can be accomplished by general or special legislation has been, with but few exceptions, held to be a question solely for the Legislature. Martin v. Mott, 12 Wheat. 28, 6 L.Ed. 537; Clarkeet al. v. Jack et al., 60 Ala. 278; In re Greer, 58 Kan. 270, 48 P. 950; Evansville v. State, 118 Ind. 426, 21 N.E. 267, 4 L. R. A. 93; Wiley v. Bluffton, 111 Ind. 152, 12 N.E. 165;Brown v. Denver, 7 Colo. 305, 3 P. 455; People v.McFadden, 81 Cal. 489, 22 P. 851, 15 Am. St. Rep. 66; Richmanv. Supervisors, Muscatine County, 77 Iowa, 513, 42 N.W. 422, 4 L. R. A. 445, 14 Am. St. Rep. 308; Owners of Land v. People,113 Ill. 296; State v. Boone County, 50 Mo. 317, 11 Am. Rep. 415; McGill v. State, 34 Ohio St. 228; State v. Hitchcock,1 Kan. 178, 81 Am. Dec. 503; Carson v. St. Francis LeveeDistrict, 59 Ark. 513, *Page 446 27 S.W. 590; Stockton v. Powell, 29 Fla. 1, 10 So. 688, 15 L. R. A. 42; Whited v. Lewis, 25 La. Ann. 568; People v. Bowen, 21 N.Y. 517;Edmonds et al. v. Herbrandson et al., 2 N.D. 270, 50 N.W. 970, 14 L. R. A. 725; Wheeler v. Chubbuck, 16 Ill. 362."
Section 6, art. 2 (Bunn's Ed. § 15; Snyder's Ed. p. 21), of the Constitution, provides:
"The courts of justice of the state shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation; and right and justice shall be administered without sale, denial, delay or prejudice."
This provision is self-executing, and is sufficient, in the absence of statute, to disqualify a judge on account of bias or prejudice. This construction is supported by the case ofDay v. Day, 12 Idaho, 556, 86 P. 531; the Constitution of that state having a similar provision. Whilst under all events by said section a district judge may be disqualified on account of bias or prejudice, yet the Legislature may prescribe how that disqualification should be determined; and it appears from said section 10 that it is to be determined by the court examining the showing made for such purpose, and that if "it appears" that he is disqualified, then the change of judge shall be allowed. In this the court exercises a discretion, and under such circumstances prohibition is not the remedy. Hortonet al. v. Haines, supra; Maharry et al. v. Maharry, supra.
It is earnestly insisted, in the very able and elaborate brief filed by counsel for relator, that prohibition is the proper remedy in this case, and we are cited to the case ofState v. Huston, 21 Okla. 782, 97 P. 982, wherein it is said:
"Prohibition is the proper remedy, where an inferior court assumes to exercise judicial power not granted by law, or is attempting to make an excessive and unauthorized application of judicial force in a cause otherwise properly cognizable by it."
We adhere to the rule there announced. But it is not a question in this case of the lower court exceeding its legitimate powers, but as to whether or not it commits error therein in passing *Page 447 upon the sufficiency of what "is made to appear" relative to such disqualification. That can only be reviewed by appeal.
It is further earnestly insisted that if a wrong is done the relator by wrongfully or erroneously removing him from office, an appeal is not an adequate remedy; that if he is suspended from office and ousted therefrom by the trial court, and on appeal should be sustained, although he would not be deprived of the emoluments of his office, yet that remedy could not compensate him for the obloquy, shame, and disgrace suffered by reason of such wrongful suspension and ouster from office, and he would thereby suffer an irreparable wrong. This is an argument that may not only be addressed to the Legislature, in providing for fair and speedy trials, with expeditious appeals, in such cases, but also to the judgment and conscience of the trial judge, but is not a legal cause for the intervention of the writ of prohibition. In this state, where there is such ample and complete provision made for the transfer of one judge to another district, so that in such cases trials may be had without delay, if there is any question as to whether or not the trial judge is disqualified, the doubt should be resolved in favor of the accused. But when the power is lodged with the trial court authorizing it to pass on a question, the arm of this court cannot be used by means of a writ of prohibition to stay an erroneous act of such court. Under the laws in force in this state the only way for the correction of such error is by appeal.
We express no opinion as to whether or not the affidavit for a change of judge, filed by the relator before the respondent, is sufficient. That question is not now properly before this court for review.
Dunn, Hayes, and Turner, JJ., concur; Kane, C. J., not participating. *Page 448