Turner v. McCain

Supreme Court of Oklahoma

Turner v. McCain

1910 OK 107, 109 P. 821, 26 Okla. 132, 1910 Okla. LEXIS 19

CourtSupreme Court of Oklahoma

DecidedApril 26, 1910

Docket1341

StatusPublished

Cited by5 cases

This text of 1910 OK 107 (Turner v. McCain) is published on Counsel Stack Legal Research, covering Supreme Court of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Turner v. McCain, 1910 OK 107, 109 P. 821, 26 Okla. 132, 1910 Okla. LEXIS 19 (Okla. 1910).

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Opinion

KANE,

J. This is an original application for a writ of mandamus to require the defendant, as judge of the superior court of Muskogee county, to certify to his disqualification to try a certain civil action pending in said court. The petition alleges, in sub-, stance, that the court below, after hearing said motion for disqualification, held that it was disqualified to proceed with the trial of said cause, but that inasmuch as said motion was based upon the provisions of House Bill No. 217, entitled “An act prescribing the *133 disqualifications of judges of courts of record, and providing for the selection or appointment of a special judge or judge pro tem-pore when the regular judge is disqualified, and repealing section 8, article 1, c. 27, Sess. Laws 1907-08,” which act in its opinion was unconstitutional- and void, for the reason that the same doeo not comply with the provisions of section 3, art. 5, of the Constitution of Oklahoma, in that it contains no enacting clause as provided for in said section of the Constitution, it refused a certificate.

The questions raised by this state of the pleadings are all decided by the Criminal Court of Appeals of this state in Ex parte Hudson, 3 Okla. Cr. 393, 106 Pac. 540, cited with approval by this court in Myers v. Bailey, Judge, infra, 109 Pac. 820, and Mack Mayes v. Pitchford, Judge, infra, 109 Pac. 821. As the court below based its refusal to sign the certificate of disqualification solely upon the ground that House Bill No. 217, supra, is unconstitutional, now that that question is settled to the contrary, there will probably be no necessity for the issuance of the writ, and the same will not be issued until upon further showing it may be found necessary.

All the Justices concur.

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KANE,

J. This is an original application for a writ of mandamus to require the defendant, as judge of the superior court of Muskogee county, to certify to his disqualification to try a certain civil action pending in said court. The petition alleges, in sub-, stance, that the court below, after hearing said motion for disqualification, held that it was disqualified to proceed with the trial of said cause, but that inasmuch as said motion was based upon the provisions of House Bill No. 217, entitled “An act prescribing the *133 disqualifications of judges of courts of record, and providing for the selection or appointment of a special judge or judge pro tem-pore when the regular judge is disqualified, and repealing section 8, article 1, c. 27, Sess. Laws 1907-08,” which act in its opinion was unconstitutional- and void, for the reason that the same doeo not comply with the provisions of section 3, art. 5, of the Constitution of Oklahoma, in that it contains no enacting clause as provided for in said section of the Constitution, it refused a certificate.

The questions raised by this state of the pleadings are all decided by the Criminal Court of Appeals of this state in Ex parte Hudson, 3 Okla. Cr. 393, 106 Pac. 540, cited with approval by this court in Myers v. Bailey, Judge, infra, 109 Pac. 820, and Mack Mayes v. Pitchford, Judge, infra, 109 Pac. 821. As the court below based its refusal to sign the certificate of disqualification solely upon the ground that House Bill No. 217, supra, is unconstitutional, now that that question is settled to the contrary, there will probably be no necessity for the issuance of the writ, and the same will not be issued until upon further showing it may be found necessary.

All the Justices concur.

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Bluebook (online)

1910 OK 107, 109 P. 821, 26 Okla. 132, 1910 Okla. LEXIS 19, Counsel Stack Legal Research, https://law.counselstack.com/opinion/turner-v-mccain-okla-1910.

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