Later courts went against this
Overruled on other grounds by Dobbs v. Board of County Com'rs of Oklahoma County, 208 Okla. 514 (1953)
Nichols v. Levy, 151 Okla. 245, 1 P.2d 766 (1931), overruled on other grounds in Dobbs v. Board of County Commissioners, 208 Okla. 514, 257 P.2d 802, 810 (1953).
The opinion
HEFNER. J.
(dissenting). Sections 11, 12, and 13 of article 7 of the Constitution create a county court and make it coextensive with the county.
The majority opinion holds unconstitutional the act of the Legislature providing for an additional county judge. Clearly, there can be but one county court. The question, however, as to increasing the nun> ber of the judges of a countjy court is not, to my mind, free from doubt and it is a well-recognized rule of construction that unless an act of the Legislature is clearly unconstitutional it should be upheld.
I think the rule of construction applicable to the instant case is correctly stated in 6 R. C. L., paragraph 73, and it is as follows:
“To justify a court in pronouncing a legislative act unconstitutional, or a provision of a state Constitution to be in contravention of the Constitution of the United States, the case must be so clear as to be free from doubt, and the conflict of the statute with the Constitution must be irreconcilable, because it is but a decent respect to the wisdom, the integrity, and the patriotism of the legislative body by which any law is passed to presume in favor of its validity until the contrary is shown beyond reasonable doubt. Therefore in no doubtful case will the judiciary pronounce a legislative act to be contrary to the Constitution. To doubt the constitutionality of a law is to resolve the doubt in favor of the validity.”
If the act is held unconstitutional, it must be by implication because there is no direct provision of the Constitution which prohibits the Legislature from increasing the number of county judges. It must be recognized that before the statute can be stricken down, the conflict with the Constitution must be irreconcilable. In a doubtful case the judiciary should not pronounce the legislative act contrary to the Constitution. If there is a doubt as to the constitutionality of the act, the doubt must be resolved in favor of its validity. If the act under consideration had created two county courts in the same county, then I think it would be irreconcilable with the Constitution. The act, however, does not create two county courts. It does no more than p'rovide for an additional judge for the court that was created by the Constitution. Can it be said that the Constitution absolutely prohibits the Legislature from providing for an additional county judge under certain conditions? I think not. Since the act only provides for an additional county judge, I do not-think it in irreconcilable conflict with the Constitution.