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school lands and other public lands of the determine protests and contests growing out state, and of the funds and proceeds derived of any lease or assignment, and make such therefrom "under such rules and regulations order in relation thereto as the evidence and as may be prescribed by the Legislature.” law justifies. And section 7187, Rev. Laws The Legislature has, from time to time, en 1910, provides: acted laws conferring upon the cominission- "From all decisions of the commissioners of ers of the land office authority to manage the land office an appeal may be taken by any the public lands of the state, and the funds of the county where the land is situated.

person affected thereby to the district court and proceeds derived therefrom, and providing rules and regulations therefor.

It is, however, claimed by the plaintiffs The land in dispute here was duly apprais- that the proceedings of the commissioners of ed, together with improvements thereon ac- the land office, under section 7177, by which cording to article 2, c. 49, S. L. 1907-08, their interest in an unexpired lease was forand the plaintiffs were duly notified of such feited and the improvements sold, did not appraisement. There were never any objec- afford to them and their property rights due tions filed with the commissioners of the process of law; that the commissioners of land olice, nor claim made that the appraise the land office had no authority to exercise ment of the lands and improvements was not judicial functions, render judgment, and enfair and just, nor was there any appeal taken force its decree, ousting them from possesfrom such appraisement as provided by sec- sion of the lands, and that by so doing their tion 7184, Rer. Laws 1910. Section 7177, constitutional rights were invaded under the Rev. Laws 1910, provides:

Constitution of the United States and of this "If the lessee of any of the lands enumerated state. In order to test a piece of legislation herein shall be in default of the annual rent- to determine whether it is a denial of due al due the state for a period of three months, the commissioners of the land office shall cause process of law, resort must first be had to potice to be given such delinquent lessee, that the Constitution itself, to see whether it condays from the service of such notice his lease to be in conflict with any of the constitutionif such delinquency is not paid within thirty flicts with any of its provisions. If not found will be declared, at their option, forfeited to the state by the commissioners of the land of- al provisions, we must look to those settled fice. If the amounts due are not paid within usages and principles of the law to deter thirty days from the date of the service of such mine whether it denies the necessity of no notice, the said lease shall be declared forfeited and the land therein described shall re tice and the right to appear and be heard bevert to the state, the same as though such fore judgment; these being fundamental and lease had never been made. The order making established rights. Section 1, art. 7, of the such forfeitures shall be spread upon the rec state Constitution, provides: ords of the commissioners of the land office. The service of the notice herein contemplated

"The judicial power of this state shall be shall be made by registered letter; in case the vested in the Senate, sitting as a court of impost office address of the owner of such lease peachment, a Supreme Court, district courts, be unknown, the notice herein contemplated county courts, courts of justices of the peace, shall be published in two consecutive issues of municipal courts, and such other courts, com some weekly newspaper published in or of gen- missions or boards, inferior to the Supreme eral circulation in the county where the land is Court, as may be established by law." situate. The forfeiture may be entered by said

It is well to bear in mind that the legisboard after thirty days from the date of such published or registered notice: Provided, that lative department of the state has all the the lessee of any land so forfeited may redeem powers not prohibited by the state Constithe same by paying all delinquencies, fees and tution. The state Constitution never costs of forfeiture at any time before such land is advertised to be leased, as provided by this larges the powers of the legislative departarticle. * The improvements

on land so ment, but restricts them, and the only limireverting to the state shall be sold under the tation upon the legislative department, with direction of the commissioners of the land of reference to the creation of judicial bodies, fice at public or private sale, upon due notice is that courts, commissions, and boards creatto the lessee, and the proceeds received therefrom shall inure to the holder of the delinquent ed by it shall be inferior to the Supreme lease after payment shall have been made to Court. Obviously the Legislature bad the the state for all delinquencies and rents and authority to vest a portion of the judicial expense incurred in making such sale."

power of this state in other tribunals than This statute is the one by virtue of which those specifically named and designated in the commissioners of the land office took ac- the Constitution. tion against the plaintiffs, excepting the ap- (1) A definition of "due process of law" praisement and notice thereof was made and applicable to all cases is difficult, if not imgiven under the Laws of 1907-08. The rec- possible, to give. A definition applicable to ord in this case discloses that every provi- the particular case under consideration has sion of the law was studiously observed and been given by various courts, and text-writstrictly followed by the commissioners of ers. " 'Due process of law' in each particthe land office, and plaintiffs given every op ular case means such an exertion of the portunity afforded by law to pay their rent powers of government as the settled maxims and redeem their lease. Section 7186, Rev. of the law permit and sanction, and under Laws 1910, confers upon the commissioners such safeguards for the protection of indi. of the land office the authority to hear and vidual rights as those maxims prescribe for

en

the class of cases to which the one in ques. | erty rights It operates, with an opportunity tion belongs." Cooley on Const. Lim. & 356; to appear and be heard in his own defense. Lent v. Tillson, 72 Cal. 404, 14 Pac. 71.

(2) The question naturally arises, Were In his argument in the Dartmouth College the plaintiffs in this case denied the benefit Case, Daniel Webster defined it as: of its application? The Fourteenth Amend.

"A law which hears before it condemns, which ment to the federal Constitution in no way proceeds upon inquiry, and renders judgment limits the power of the legislative departonly after trial.”. Dartmouth College v. Wood- ment of this state to say what forum shall ward, 4 Wheat. 518, 4 L Ed, 629. It has also been defined as:

determine the property rights of its citi“Law in its regular course of administration be asserted or legal obligations enforced.

zens, nor by what procedure legal rights may through courts of justice." 2 Kent. Comm. 10; San Jose Ranch Co. v. San Jose Land, etc., The Fourteenth Amendment contemplates on. Co., 126 Cal. 322, 58 Pac. 824.

ly that fundamental and established rights The term “due process of law" as used in shall be preserved; that is, a legally constithe federal Constitution has repeatedly been tuted tribunal having jurisdiction over a pardeclared to be the equivalent of the phrase ticular class of cases to which the one in "law of the land,” as used in Magna Charta. question belongs, with notice and an opThe English courts applied the phrase "law portunity to appear and be heard in one's of the land" as having reference to the com- own behalf. The law assailed by the plainmon and statutory law then existing in Eng- tiffs denied them no rights vouchsafed unland, and when embodied in the Constitution der either the Fourteenth Amendment to of the United States and the Constitution of the federal Constitution nor section 7 of the the various states it had reference to the Bill of Rights of this state. same common law as previously modified and The commissioners of the land office is the as far as suited to the varying political con-only tribunal in which may be initiated pro ditions and wants and usages of the people. ceedings for the determination of the rights “Due process of law," or, as some courts of a particular class of persons. The law use the phrase, “law of the land,” simply provides for notice to be given, and affords means a general and public law operating opportunity to appear and be heard before equally on all persons in like circumstances. the commissioners, and for appeals from It does not mean a partial law operating their decisions to the district court of the upon the rights of a particular person in county where the lands are located, and in a way in which the same rights of all per- that tribunal a trial de novo shall be had. sons in like circumstances are not affected. Under the statute the commissioners of the The law must embrace all persons in like land office have authority to prescribe rules circumstances, and the classification must and regulations governing the sale, rental, be just and reasonable, and not arbitrary disposal, and management of the state school and capricious. Due process of law is denied lands, and the funds and proceeds derived when any individual of a particular class is therefrom, to hear and determine protests singled out and hampered with the imposition of restraint, not borne by all members and contests and make findings of fact, and of the same class or community at large. to exercise such ministerial and judicial pow. A law which operates and exhausts itself ers and functions as may be conferred upupon a particular person, denying him rights on them by the Legislature. that are enjoyed by other persons in like

It follows that the judgment of the lower circumstances in the community as a whole court must be affirmed; and it is so ordered. cannot be upheld, as it denies equal protection of the law,

PER CURIAM. Adopted in whole. The essential elements of due process of law are a tribunal with jurisdiction to adjudicate upon the subject-matter of the con

(68 Okl. 175) troversy, notice to appear, and an oppor- MARSHALL, County Judge, V. SITTON. tunity for each side to be heard in person or

(No. 8416.) by counsel respecting the matters in dispute, (Supreme Court of Oklahoma. Feb. 12, 1918. A law which requires notice to be given and

Rehearing Denied May 14, 1918.) the right to a hearing before judgment, with ample opportunity to present all the evidence

(Syllabus by the Court.) and argument which the party deems import- 1. CRIMINAL LAW 221 EXAMINATIONant, is all that can be adjudged vital under CHANGE OF VENUE-RIGHT OF ACCUSED. due process of law. By due process of law sion of a felony is brought before a magistrate

Where a person charged with the commisis meant enforcement of right or pre- for the purpose of a preliminary examination, vention of wrong, before a legally consti- and such person, in compliance with section tuted tribunal having jurisdiction over the 6149, Rev. Laws 1910, makes application for a class of cases to which the one in question change of venue, the right to such change is

absolute, and the duty of such magistrate to belongs, with notice to the party upon whom grant the change is mandatory, and involves the the law exhausts itself, or upon whose prop- exercise of no judicial discretion.

2. MANDAMUS 61–REFUSAL OF CHANGE OF any justice or judge thereof, during term VENUE.

time, or at chambers, to any inferior tribunal, Where application for a change of venue is made under and in accordance with the pro- corporation, board, or person, to compel the visions of section 6149, Rev. Laws 1910, and performance of any act which the law special. the magistrate to whom such application is ly enjoins as a duty resulting from an office, made wrongfully refuses to grant the same, trust, or station, and, though the writ may mandamus is the proper remedy.

require an inferior tribunal to exercise its 3. MANDAMUS 141-PEREMPTORY WRIT JURISDICTION OF DISTRICT COURT.

judgment or proceed to the discharge of any The district court may issue a writ of man- of its functions, it cannot control judicial disdamus directing an examining magistrate to cretion. Under this section the district court grant a change of venue in a preliminary ex- had authority to issue the writ if the act amination when application therefor has been commanded to be done was enjoined upon the properly made under section 6149, Rev. Laws defendant as a duty resulting from the office 1910, and wrongfully refused by such magistrate.

held by him, and did not involve the exercise

of judicial discretion. Error from District Court, Stephens Coun [1, 2] It is also urged that the writ should ty; Cham Jones, Judge.

not issue because the county court is a court Mandamus by H. W. Sitton against J. W. of record, and in passing upon an application Marshall, County Judge. From the issuance for a change of venue is required to exercise of a peremptory writ of mandamus, the de judicial discretion in determining whether the fendant brings error. Affirmed.

application is sufficient to entitle defendant to T. B. Reeder, of Duncan, for plaintiff in the change sought. error. Womack & Brown, J. B. Wilkinson, Section 17, art. 7, of the Constitution proand Bond & Kolb, all of Duncan, for defend. vides: ant in error.

"County courts shall also have and exercise

the jurisdiction of examining and committing HARDY, J. On May 29 and June 3, 1916, i magistrates in all criminal cases. respectively, verified complaints were filed

And section 17,'art. 2, provides: before J. W. Marshall, county judge of Ste

"No person shall be prosecuted for a felony phens county, charging H. W. Sitton with by information without having had a prelimi.

nary examination before an examining magisthe crime of embezzlement. Upon being ar- trate, or having waived such preliminary examrested and brought before said county judge ination. Prosecutions may be instituted in said Sitton filed verified motions for change of courts not of record upon à duly verified comvenue which were duly presented and over

plaint." ruled. On June 6, 1916, upon application

It seems clear from the foregoing proviby Sitton, who will be designated as plaintiff, sions that in all cases where prosecution is to the district court of Stephens county, a per- instituted against a person for felony by inemptory writ of mandamus was issued com- formation he is first entitled to a preliminary manding said Marshall, as county judge, who examination before an examining magistrate, will be designated as defendant, to grant and the intent of the two provisions combined the change of venue prayed and transmit was that, when the judge of the county court the records and files in said causes to the sits as an examining and committing magisnearest impartial justice of the peace. From trate in a preliminary examination before this order the said defendant appeals, and him, his powers and duties should be the urges that the district court of Stephens same as those exercised in like cases by any county was without jurisdiction to entertain other examining and committing magistrate. the petition and grant the writ, and cites in

An investigation upon preliminary examsupport of this contention certain decisions ination by a magistrate of a person who has of the Criminal Court of Appeals of this been charged with crime is not a final destate holding that that court has exclusive termination of any issue on the question of appellate jurisdiction in criminal cases, and such person's guilt. The only order made is which announce the rule that the judge of a to hold the person accused, or to discharge superior tribunal may not issue a writ of him from custody. If held to answer, a mandamus to the judge of a court of record trial upon the charge may be had in a court in cases where the aggrieved party had an of record. The object of a preliminary exadequate remedy at law. Counsel also cite amination is to inform the defendant of in support of the position assumed by them the nature and character of the crime charg. section 5811 et seq. Rev. Laws 1910, where a ed against him and to lay a preliminary provision is made for a change of judge or foundation for the prosecution in a court of change of venue upon the final trial of a record, to inquire concerning the commission cause in a court of record having jurisdiction of the crime charged and the connection of thereof. The authorities cited and the stat- the accused therewith, and to determine utes relied upon bave no reference to a pre- whether there is probable cause to believe liminary examination.

him guilty so that the state may take the [3] Section 497, Rev. Laws 1910, provides necessary steps to perpetuate testimony and that the writ of mandamus may be issued by determine the amount of bail which will the Supreme Court, or the district court, or probably secure the attendance of the ac

era For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexos

cused to answer. State v. Pigg, 80 Kan. 481, ner and be transmitted to another justice as 103 Pac. 121, 18 Ann. Cas. 521; Harris v. in cases formerly triable before a justice of Rolette, 16 N. D. 204, 112 N. W. 971; Bish- the peace. op's New Criminal Procedure, $ 239. The It seems clear from these provisions of conduct of such examination is not the ex. these statutes that the right to the change ercise of any part of the judicial power of is absolute, and does not depend upon the the county court as a court of record, but the discretion of the magistrate to whom the apcounty judge in the conduct thereof exercis plication is made, but becomes complete es only the powers and jurisdiction that a when the affidavit required by said section justice of the peace would exercise when act has been filed by the defendant or some one ing as a magistrate in preliminary examina- in his behalf. tions. State v. Pigg, supra; United States It is further urged that, though the right v. Hughes (D. C.) 70 Fed. 972; State v. Nast, to the change be absolute, and the magistrate 209 Mo. 708, 108 S. W. 563; Bishop's New without discretion, the writ should not have Criminal Procedure, $ 237.

issued, because the defendant had an adeWhen application is made by a person quate remedy at law. Authorities in civil charged with a crime for a change of venue cases have no controlling application here, in compliance with section 6149, Rev. Laws because the situation is entirely different. 1910, before preliminary examination is Where a change of venue in a civil case is held, the magistrate is vested with no dis- denied by a justice of the peace, the order cretion as to whether such change shall be denying the change may be reviewed on apgranted, nor is he authorized to determine peal to the county or district court by bill of the truth of the allegations. The duty to be exception. Talley v. Maupin, 166 Pac. 734, performed by him is purely ministerial, and L. R. A. 1917F, 912; Winfry v. Benton, 25 the right to the change is absolute.

Okl. 445, 106 Pac. 853. Section 6149 provides that a person brought

An appeal will not lie from an order of an before a magistrate charged with a crime examining magistrate denying a change of upon which a preliminary examination is venue, but if such change is wrongfully re to be held may at any time before subpænas fused, the defendant may be held to answer are issued have a change of venue when he any charge that may be lodged against him or some one for him files an affidavit that he in the district or superior court, and be rehas reason to believe and does believe that quired in that court to plead thereto. he cannot have a fair and impartial exam

By section 4907, Rev. Laws 1910, the writ ination or trial as the case may be before the of mandamus may be issued to an inferior justice or county judge, and upon the filing tribunal to compel performance of any act of such affidavit by the defendant, or in his which the law specially enjoins as a duty behalf, authorizes the county attorney, or upon such inferior tribunal. This section some one for him, to file an affidavit alleging sustains the right of the plaintiff to the writ the same disqualifications against any one in this case. The duty of the county judge justice to whom it is proposed to send the to grant the change upon compliance with case for further proceedings, and it is there the statute was imposed upon him by the upon made the duty of the examining magis- positive mandate of the law without regard trate to send the cause to the next nearest to his own judgment or opinion concerning justice who is not in any way related to de- the propriety or impropriety of the act thus fendant or prosecuting witness or party in- enjoined upon him. Where this is true, the jured, who is not a witness, and has not duty to be performed is ministerial, and been an attorney in the cause, and who may may be compelled by mandamus where an not be absent or physically be unable to act. adequate remedy does not otherwise exist. When the defendant has filed bis application In State v. McMillan, Judge, 21 Okl. 384, for change, and the county attorney has filed 96 Pac. 618, it was held that mandamus an affidavit alleging like disqualifications would issue to require the approval of a against any other justice, the parties are bond tendered by relator where said bond then authorized to agree upon a justice to was in all respects regular, and respondent whom the case may be sent, whereupon it is refused to approve same on grounds other made the duty of the magistrate to which than that of its insufficiency. such application is made to transfer the In Smock v. Farmers' Union State Bank, cause to the justice agreed upon. Said sec-22 Okl. 825, 98 Pac. 945, mandamus was istion further provides that no witnesses shall sued to compel the bank commissioner to isbe subpænaed for either party until the de sue a certificate to the defendant in error, fendant has been brought before the justice Union State Bank, showing that it had been and has been offered an opportunity to organized, its capital paid in, and that it change the venue, or has changed it, if he was authorized to transact a general bankelects to change, and the date for the hearing business. ing has been fixed. Section 5668 also pro- In Davis, County Judge, v. Caruthers, Disvides that at any time before an examination trict Judge, 22 Okl. 323, 97 Pac. 581, it was is begun a change of venue may be had in held that a writ would lie to require the

of the United States Court in the Indian particular case. There is no general rule Territory, formerly located in the territory by which this test may be applied. Manda: embraced by the county in which such dis- mus will not issue because of inconvenience, trict court sits to cause, by proper order, mere expense, or delay in the pursuit of othall matters, proceedings, records, books, pa- er remedies, but will usually be granted pers, and documents pertaining to all origi- where the remedy available is insufficient to nal causes or proceedings relating to estates prevent immediate injury or hardship to the transferred to such district court from said party complaining. 26 Cyc. 171. And this United States courts to be transferred to the is particularly so in criminal cases. McKee county court of such county.

et al. v. De Graffenreid et al., supra. In McKee et al. v. De Graffenreid et al., In criminal cases neither an appeal, ha33 Okl. 136, 124 Pac. 303, the writ was award-beas corpus, nor certiorari would be a plain, ed to require a judge of the district court to speedy or adequate remedy so as to defeat grant the petitioner who was accused of vi- the right to mandamus. Evans v. Willis, olating or disobeying, when not in the pres. Judge, 22 Okl. 310, 97 Pac. 1047, 19 L. R. A. ence or hearing of the court, or judge, sit- (N. S.) 1050, 18 Ann. Cas. 258; McKee et al. ting as such, an order of injunction or re v. De Graffenreid et al., supra; Herndon v. straint made and entered by such court, or Hammond, Judge, 28 Okl. 616, 115 Pac. 775. judge, a trial by jury before penalty or Should the change be refused, the party punishment was imposed.

making the application would be subject to Where in any cause pending in any court an order holding him to appear and answer of record in this state a judge is disqualified any charge lodged against him, and in de to sit and hear said cause under the Consti- fault of ball would be imprisoned until actution and laws of this state, he should certi- tion in the district or superior court, and fy his disqualification, and when he refuses upon information being filed would be placed to do so when requested in the manner pro upon trial, and if convicted be liable to imvided by law, mandamus is the proper reme prisonment, and in capital cases would not dy. State ex rel. Mayo v. Pitchford, 43 Okl. be entitled bail pending the prosecution of 105, 141 Pac. 433.

an appeal. The Criminal Court of Appeals of this state The circumstances make it clear that plainwill issue the writ upon petition therefor to tiff was without an 'adequate remedy, and compel a judge who is disqualified to sit in his right to the change being clear, and the the trial of a criminal case to certify to his duty of defendant to grant the change being disqualification. State v. Brown, 8 Okl. Cr. ministerial and involving the exercise of no 40, 126 Pac. 245, Ann. Cas. 1914C, 394; Ex judicial discretion, the writ was properly parte Hudson, 3 Okl. Cr. 393, 106 Pac. 540, granted. City of Shawnee v. Tecumseh, 150 107 Pac. 735; Long v. Allen, Judge, 10 Okl. Pac. 890. Cr. 182, 135 Pac. 443. And the writ will be The defendant filed no answer to the apawarded directing an inferior court to dis- plication for the writ, but filed a motion miss a criminal case for failure to bring the which was in effect a demurrer objecting to defendant to trial within the time fixed by the sufficiency of the petition. Where this law. McLeod v. Graham, 6 Okl. Cr. 197, 118 is done the pleading filed will be treated as Pac. 160.

an answer admitting all the facts stated in The writ will lie to compel a federal Cir- the petition with the challenge of their sufficuit Court to remand a case to the state ciency to authorize the issuance of the writ. court whence it was removed where it is ap Thompson v. State, 154 Pac. 508. The affparent as a matter of law from the record davits for the change fully satisfy the reitself that the federal court was without quirements of the statute. jurisdiction. Re Winn, 213 U. S. 458, 29 There was no error in granting a perempSup. Ct. 515, 53 L. Ed. 873.

tory writ without having first issued the alIn a number of cases in other states it has ternative writ. State v. Cummings, 47 Okl. been held that, where the right to a change 44, 147 Pac. 161. of venue was absolute, mandamus would is Section 4910, Rev. Laws 1910, provides : sue to compel the court in which the cause

"When the right to require the performance was pending to change the venue according of the act is clear, and it is apparent that no to the motion of the defendant. Herbert v.

valid excuse can be given for not performing it, Beathard, 26 Kan. 746; Ex parte Chase, 43

a peremptory mandamus may be allowed in the

first instance." Ala. 303; Ex parte Reeves, 51 Ala. 55; State v. Williams, 127 Wis. 236, 106 N. W. 286, 7 Section 4914 also provides that, if no anAnn. Cas. 303; State v. Dick, 103 Wis. 407, swer be made to the application, a peremp79 N. W. 421; Krumdick v. Crump, 98 Cal. tory writ must be allowed against defendant. 117, 32 Pac. 800; State v. Shaw, 43 Ohio St. In this case no answer was filed. The de324, 1 N. E. 753.

fendant, however, appeared and participated The question then remains: Did the plain- in the trial of the case on the merits, and tiff have an adequate remedy at law? What was in court when the peremptory writ was is, or is not, an adequate remedy is one that granted. must be determined upon the facts of each Affirmed. All the Justices concur.

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