This cause is now before the court upon motion of defendant in error to dismiss the appeal.
The appeal is from the judgment denying a writ of mandamus against the county election board of Creek county upon a hearing of an alternative writ commanding the county election board to convene, hear, and determine an election contest between W.F. Pardoe and C.O. Beaver for the office of judge of the superior court of Creek county, or show cause for not so doing.
The motion to dismiss is based upon the ground that the district court was without jurisdiction to entertain the application or grant the writ for the reason that the office of judge of the superior court is a state and not a county office, and that the county election board, for that reason, was without power or authority to hear and determine said contest, and that jurisdiction to hear and determine the same is in the State Election Board.
The superior court of Creek county was created by S. L. 1917, c. 138, sec. 1, now section 3153, C. O. S. 1921, wherein it is provided: "Said court shall be known as the superior court of Creek county." Its jurisdiction is concurrent in all matters, both civil and criminal, with the district court and county court, except in probate matters, and is co-extensive with the county. The judge of the superior court is elected each four years by the electors of Creek county.
This court has twice held that the office of judge of the superior court is a state office. It was so held in Chickasha Cotton Oil Co. v. Lamb Tyner, 28 Okla. 275, 114 P. 333, where the court was created by a special act somewhat similar to the one creating the court in Creek county. It is also so held in State ex rel. Attorney General v. Breckenridge, 34 Okla. 649,126 P. 806, where the court was created under the general act of March 6, 1909. In neither of these cases was an election contest involved. The question involved in the motion to dismiss the appeal has been settled by this court adversely to the motion in McCain v. St. Election Board, 144 Okla. 85,289 P. 759, wherein it is held:
" 'State officers' referred to in law relating to filing of nomination petitions are officers of executive branch of state government."
In the body of the opinion it is said:
"It is the contention of the plaintiff that the office of judge of the court of common pleas of Tulsa county is a state office, and that the term 'state officers,' as used in section 6101, supra, includes such office, and that, therefore, his nomination petition for such office should be filed with the Secretary of the State Election Board. We are of the opinion that the Legislature in enacting the state election laws, set forth above, did not have in mind the character of the office or the functions to be performed by the particular officer, but had in mind primarily the territory from which such officers were to be nominated or elected. Had it been the intention of the Legislature for the term state officers,' as used in the statute, to cover all officers exercising functions of state concern, then it would have been wholly unnecessary for the Legislature to have mentioned in the act, district judges, members of the Senate, etc. It will be observed that the Governor, Secretary of State, Attorney General, and all other officers of the executive branch of the state government are nowhere mentioned in the act. Clearly it was these officers that the Legislature had reference to and meant to include in the term 'state officers'."
It was not specifically held therein that the office of judge of the court of common pleas of Tulsa county is a state office, as defined in Chickasha Cotton Oil Co. v. Lamb Tyner, supra, and State ex rel. Attorney General v. Breckenridge, supra, but held that it is not a state office within the meaning of section 6101, C. O. S. 1921.
In the McCain Case, supra, the question involved was whether candidates for nomination in the primary election for the office of judge of the court of common pleas of Tulsa county should file their petitions for nomination with the county election board or with the State Election Board.
In the instant case the question is which of the two election boards has original jurisdiction to hear and determine a challenge to the correctness of the announced result of the general election for the office of judge of the superior court of Creek county.
By section 3 of chapter 63, S. L. 1927, such challenge must be filed by any candidate for a county office with the county election board of the county, whose duty it is to canvass the returns.
By section 7 of the same act, it is provided that as to candidates for district or state offices over which the State Election Board has jurisdiction, such contest shall be filed with the Secretary of the State Election Board.
Section 6101, C. O. S. 1921, is the only law by which the jurisdiction of the county and State Election Boards is fixed. Said section provides: *Page 82
"All nominating petitions for presidential electors, United States Senators, Representatives in Congress, state officers, members of the Senate and House of Representatives, district judges, and for all other offices for which the electors of the entire state, or subdivision thereof greater than a county, are entitled to vote, shall be filed with the Secretary of the State Election Board. All nominating petitions for county and township officers or offices for which the electors of a subdivision of a county are entitled to vote, shall be filed with the secretary of the county election board."
By the McCain Case, supra, it is held that it is not the character of the office nor the functions to be performed by the particular officer that was intended to control as to the jurisdiction of each board, but the territory from which such officers were to be elected. The office of district judge is specifically mentioned as coming within the jurisdiction of the State Election Board, not because they were not considered as state officers, but because in most instances the territory from which they are elected includes more than one county. But in some instances but a single county constitutes a district. There was no occasion for mentioning other higher judicial officers, for the reason that they are included in the general or state officers, and because nominated in districts larger than a county and elected in the state at large.
It appears clear that for the purpose of administering the election laws, it was the intention of the Legislature to confer jurisdiction on the State Election Board only in those cases where the electors of the state or subdivision thereof greater than a county were entitled to vote, district judges, members of the Senate and House of Representatives, being specifically excepted; and to confer jurisdiction upon the county election board as to all offices where the voters of a county or a lesser subdivision were entitled to vote, and that "state officers," as used in section 6101, C. O. S. 1921, means only the general elective officers of the state, and without regard to what are or are not state officers within the meaning of other statutes.
The motion to dismiss the appeal must be, and is, denied.
HEFNER, CULLISON, SWINDALL, McNEILL, and KORNEGAY, JJ., concur. LESTER, C. J., and CLARK, V. C. J., dissent. ANDREWS, J., absent.