Ex Parte Hudson

FURMÁN, PRESIDING Judge.

On the 3rd day of .November, 1909, the defendant was convicted in the county court of Adair county of the offense of selling whisky. On the 6th day of November, 1909, defendant applied to this nourt for a writ of habeas corpus,. alleging that, he was in the custody of the sheriff of Adair county by virtue of such conviction, and that the conviction was illegal for want of jurisdiction of the county court to try said cause upon the ground that before the beginning of the trial th'e' defendant had • filed in said court his affidavit, alleging that the county judge who was presiding at said trial was so biased and prejudiced against the defendant that he could not obtain a fqir and impartial trial before said county judge on account of such bias and prejudice, and that said county judge had disregarded said affidavit, and refused to allow defendant a change of judge, and that on this account the judgment of conviction was void and the restraint of the • defendant illegal.

Section 15, Bunn’s Const. Okla., is as, follows:

“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.”

The clear meaning of this provision is to prohibit the trial of any c.ause by a judge o.r juror who are prejudiced against either party to the cause. Prohibitive clauses of' a constitution are always self-executing, and. require no legislative provisions for their enforcement. In Davis v. Burke, 179 U. S. 403, 21 Sup. Ct. 210, 45 L. Ed. 251, the Supreme Court of the'United States says:

“* * * Where a constitution' asserts' a certain right, or lays down-a certain principle of law ,-or procedure, it speaks for the entire people as their supreme law, and is full authority for all that is done in pursuance of its provision. In short, if complete in itself, it executes itself. * * '

This question was considered and decided in Rea v. State, ante, p. 276, 105 Pac. 384. It is not necessary to repeat here what we said there. In Lincoln v. Territory, 8 Okla. 546, 58 Pac. 730, the Supreme Court of Oklahoma Territory, in construing the territorial statute upon this 'subject, said:

“It follows, then, as a matter of course, that the judge who would proceed with the trial after the making and filing of such an affidavit would do so without power or .authority, and the trial would b,e a .nullity.” •

If a trial would be a nullity on account of the violation of a statutory provision, it would certainly be a violation on account of the violation of a constitutional provision. Finding this provision in the Constitution, it is our plain duty to enforce it.

' The Legislature of Oklahoma, on March 22, 1909, passed an act (Sess. Laws 1909, p. 167, c. 14, art. 1) providing for the disqualification of judges, the title of which is as follows:

“An act. prescribing the disqualifications of judges of courts of record. and- providing for the selection or appointment of a special judge or judge pro tempore when the regular judge is disqualified and repealing section 8, article 1, chapter xxvii of the Session Laws of 1907-08.”

The first section provides:

“No judge of any court of record shall sit in any cause or proceeding in which he may be interested, or in the result of which he may be interested or related to any party to said cause within the fourth degree of consanguinity or affinity, or in which he has been of counsel for either side,- or in which he called in .question the validity of any judgment of (or) proceeding, in which he was of counsel or. interested, or the validity of any instrument or paper prepared or. signed by him as counsel or attorney, without the consent pf the parties to said action entered of record: Provided, that the disqualifications herein imposed shall not exclude the disqualifications at common law.” (Sess. Laws Okla. 1909, p. 167.

This act repeals all other' acts or parts of acts in conflict with it. It also provides for the selection of a special judge when the regular judge is disqualified. This act does not mention'the disqualification on account, of prejudice of the judge. It is. clear that the legislature did not intend to include in the grounds of disqualifications enumerated all of the grounds upon which - a ■ judge, would be disqualified, because it ■ is expressly stated that disqualifications at commofn law are not excluded^ Even if the Legislature wished to exclude constitutional disqualifications, it- was without power to do so. The only serious question in this case is as to whether the act of March 22, 1909, is valid, because it omits what is known as the enacting clause.

In determining this question it is important to examine the original copy of the Constitution. Section 3, art. 5, of the official cop}'- of the Constitution is as follows:

“Referendum petitions shall be filed with the Secretary of State not more than ninety days after the final adjournment of the session of the Legislature which passed the bill on which the referendum is demanded. The veto power of the Governor shall not extend to. measures voted on by the people.- All elections on measures referred to the people of the state shall be had at the next election held throughout the state, except when the Legislature or the Governor shall order a special election for the express purpose of making such reference. " Any measure referred to the people by the referendum shall take effect and be in force when it shall have been approved by a majority of the votes east thereon and not otherwise. The style of all bills shall be: ‘Be it enacted by the people of the State of Oklahoma.’ Petitions and orders for the initiative and for the referendum shall be filed with the Secretary of State and addressed to the Governor of the state, who shall submit the same to the people. The Legislature shall make suitable provisions for carrying into effect the provisions of this article.”

It will be observed that among other things this section provides that “The style of all bills shall be ‘Be it enacted by the people of the State of Oklahoma.’ ” Some courts hold that similar provisions in their Constitutions are not mandatory, but merely directory.

In City of Cape Girardeau v. Riley et al., 52 Mo. 428, 14 Am. Rep. 427, the Supreme Court of Missouri said:

“The very question presented arose in a case in Maryland. The Constitution in that state is the same as ours in regard to the style of laws. A law was there passed omitting the required style, and it was decided that the constitutional provision was directory only, and. not mandatory, and that the omission of the enacting clause did not render the act- unconstitutional and void. McPherson v. Leonard, 29 Md. 377. So, in Mississippi it is held that the provision is directory, and that it is not essential that there should be a literal adherence to the formula of words prescribed by the Constitution, but that the acts need only to show the authority by which they are adopted, and that it was the intention of the Legislature that they should have the effect of laws. Swann v. Buck, 40 Miss. 268. After a diligent search 1 have failed to find any case holding that a law was unconstitutional or void on account of an omitted or imperfect enacting clause. The enacting clause is certainly not of the essence of the law. It furnishes no aid in its construction, and its provisions are as clear and intelligible without it as they are with it. It is not material in indicating by what authority the law was enacted, for, being passed in due form by both houses of the Legislature and properly approved by the Governor, with no allegation of suspicion attached to it, it comes before' the courts bearing sufficient evidence that it is really and truly a law. To hold that a law supported by these sanctions was not valid because certain formal and immaterial words were omitted would be sacrificing substance to mere form, which I think the court is not justified in doing. Aside from these views, the act we aTe now considering does not pretend to be an original act. ■ It i's to reduce the law incorporating the plaintiff and the several acts amendatory thereto into one. The revision of a law does not have the effect of making the revised law entirely original, so as to be construed as though none of its provisions had effect but from the date of the revised law.”

In Swann v. Buck, 40 Miss. 292, the Supreme Court of Mississippi said:

“The first question is whether the resolution is- void for want of a sufficient enacting clause; and this involves another question, to wit, whether the Legislature has the constitutional power to pass a joint resolution at all, to have the force and effect of a law. By .the fourth section of the third article of the Constitution the legislative power of the State is vested in the two branches which constitute the Legislature, and it is ordained that The style •of their laws shall be: “Be it enacted by the Legislature of the State of Mississippi.” ’ As the style of this resolution is cBe-solved by the Legislature of the State of Mississippi/ if a literal adherence to the formula precribed by the Constitution is required, it would follow that the resolution is wholly void. The question.is one that does not seem to have received a judicial de-uision, so far as we have been able to discover; but in a work cited on the law and practice of legislative assemblies, by Mr. Cushing, the opinion is expressed that this form of .enactment must be strictly pursued, and that no .equivalent, language will, be sufficient. In the absence of any authoritative adjudication we are not prepared ;to adopt this conclusion. The argument against requiring a literal compliance with any form of a statute would be very strong on the score of convenience; for the plainest expressions of the legislative will, and the most, urgent in . their character, would be constantly .liable to be defeated by the slightest omission or.departure from the established phraseology. No possible good could be achieved by such strictness, and the greatest evil might result from it. . There are no exclusive words in the constitution^negativing the use of any. other language, and we thiink the intention will be best effected .by - holding- the clause to- be directory only.”

There are other authorities to the contrairy, but we are strongly impressed that Teason and 'justice support the views which those quoted present. We will not rest our decision of. this question upon this ground alone. The provision that “The style of all bills shall be ‘Be it enacted by the people of the State of Oklahoma/” both in its language-and-the position which it occupies in the Constitution, suggests the’ idea that its operation was intended to be confined to those bills which are initiated and enacted by the direct vote of the people, under the reserved powers of the people to enact laws independently of the will of the Senate and House of Represntatives. This provision, is found under the title of. “Initiative and Referendum,” which contains all of the .provisions of the Constitution relating to. this class of legislation. Then follows the general title, “The Legislature.” This is divided into subdivisions entitled, respectively, “The Senate/’ “The House of Representatives,” “Legislative Apportionment,” “Qualifications and Rights of Membérs,” “Powers and Duties,” “Limitations,”' “Miscellaneous Provisions,” All of. these provisions clearly show the most painstaking pare in thew arrangement, and in none of -them is any reierence to the style of the bills to be pkssed by- the Legislative Assembly. From a consideration of the subject-matter and'the context, it is' clear to us that the framers of the Constitution ihtended the' words, “Bq it enacted by the people of the state of Oklahoma”, should be used on all bills initiated and enacted by the people. Had the framers of the Constitution desired to fix the style-of bill? passed by the legislative body they would have done so,, and provided that the style of such bills should be “Be it - enacted by the Legislature of the state of Oklahoma.” The Constitution makes a clear distinction between the bills enacted by the people themselves and those enacted by the Legislature, and we have no right to -impose on legislative bills the conditions which were intended to apply only to the initiative and referendum. We, therefore,- hold that the act of March 22, 1909, is valid and in full force and effect, notwithstanding the fact that the style prescribed under the head of initiative and referendum was omitted. By. this act all other statutes with reference to the disqualification of judges were in express terms repealed. But this did not repeal the constitutional provisions, guaranteeing to all classes,of litigants the right to the administration of justice without prejudice. The Legislature may prescribe any fair and reasonable manner in ,which this prejudice may be determined. It may also prescribe the procedure to obtain the rights guaranteed under the Constitution. The right guaranteed is a fair trial before a judge or juror who is not prejudiced against the defendant. Ample provision is made 'in the act of March 22, 1909, for the selection of a special judge to try the case when the regular judge is disqualified.

Section 5 of the act prescribes the method of securing a change of judge in the event the trial judge refuses’ to certify to his disqualification and vacate the bench. That section' is as follows:

“Any party to any cause pending in a court of record may in term time or in vacation file a written application with the clerk ■of the court, setting forth the grounds or facts upon which the claim is made that the judge is' disqualified, and request- him to so certify, after reasonable notice to the other side, same .to be presented to such judge, and upon his failure so to do within three days before said cause is set for trial, application may be made to the proper tribunal for mandamus requiring him so to do.” ■ ■ •

Even though the provision of the Constitution prohibiting the trial of a ease by a prejudiced judge or juror is self-executing, the Legislature may enact laws prescribing the manner in which this provision may be enforced. In the case of State ex rel. Reardon, Co. Atty., v. Scales, Mayor, et al., 21 Okla. 690, 97 Pac. 586, our Supreme Court, speaking through Chief Justice "Williams, said:

“In the ease of Reeves v. Anderson et al., 13 Wash. 17, 42 Pac., 627, Mr. Justice Gordon, for the court, in discussing said section, says: ‘A. constitutional provision is said to be (not) self-executing “when it merely indicates principles, without laying down rules by means of which those principles may be given the force of law.” • Cooley, Const. Lim. p. 121. “Perhaps even in such eases (where the power is self-executing) legislation, may be desirable, by way of providing remedies for the protection of the rights secured, or of regulating the claim of the right so that its exact limit may be known and understood.” Id., 122. In our opinion, it was competent for the Legislature to supplement the constitutional provision by pointing out the manner in which the right conferred by the Constitution might be exercised, and by prescribing rules for the guidance of the city council in relation thereto/ ”

While the Constitution prohibits the trial oí a case before a prejudiced judge or juror, yet it is silent as to the manner in which the question of prejudice is to be decided. The machinery by which this should be determined, either as to judge or juror, is a proper subject of legislation. Manifestly a judge would have no more fight to pass upon his bias or prejudice than a juror would have to decide as to his qualification, for it is a. fundamental principle of law that no one should be permitted to be a judge when his own interests are involved. In case of juror, if a juror admits his disqualification, that settles it. If the juror denies disqualification, the trial judge passes upon that issue, and error of the trial court may be reserved for the determination of the appellate court. Under the statute now under consideration, if the trial judge admits his disqualification, he so certifies, and the election of a special judge takes place. If he does not regard himself as disqualified, he refuses or fails to so certify. Then the question can be presented to the appellate court by petition for mandamus. This secures to the defendant his right to have the matter of the prejudice of the trial judge adjudicated, and if such prejudice is made to appear, his constitutional, right to a trial before an unprejudiced judge will be protected. Hpon the other hand society will also be protected from having trials delayed indefinitely by allegations of the prejudice of the trial court, when, as a matter of fact, no such prejudice -exists, and the attempt to disqualify the judge is made solely for the purpose of delay and to defeat the enforcement of justice. This statute was hot in force at the time of the trial of any of the cases previously decided by this court in which the -question of .the prejudice of the trial judge was passed upon. What was said in previous decisions has no application to cases tried since the act ,of March 22, 1909, went into effect. Holding as we do -that this act is in effect, notwithstanding the lack .of the enacting clause, the defendant must follow the procedure as prescribed in the act before he is entitled to the benefits prescribed. Habeas^ corpus is not a proper remedy where the court ignores the provisions of this let and refuses to certify to his disqualifications. On.his failure to so certify the party complaining must proceed, under this section, by application to. the proper tribunal for mandamus requiring him to so certify..

Denied March 28, 1910.

(107 P’ac. 735.)

The writ of habeas corpus is denied and petitioner remanded to the custody of the sheriff of Adair county.

OWEN, Judge; concurs; DOYLE, Judge, dissents.