Atchison, T. & S. F. Ry. Co. v. Long

HUNT, J.

(dissenting). The opinion of the majority herein finds fault with only one section, to wit, section 3 of the initiative measure here in question, and reaches the •conclusion that said section 3 is unconstitutional and void for two reasons:

First. That that portion of the section providing “that the district court shall try the case within ten days thereafter” is an attempt by the legislative branch of the government to usurp the powers conferred upon the judicial branch of the government by the Constitution and to limit or abolish judicial discretion belonging to the court.

Second. That portion of said section providing that district judges may hear and determine cases and render judgment in another county than the county where such case is pending is in conflict with section 25, article 7, of the Constitution of Oklahoma. providing “that the terms of the d'strict court shall he held at the county seat of the respective counties.”

I am unable to agree with the first proposition, for the reason that I am thoroughly convinced that the provision as to trial within ten days is not mandatory, but directory only, and in no way usurps any of the prerogatives of the judiciary or attempts to limit or control the judicial discretion belonging to the courts. There is no provision in the act to the effect .that if a case is not tried within the ten-day period, :he court loses jurisdiction, and it necessarily lollows that, if for good cause shown, in the sound discretion of the court, the trial is ielayed beyond' the ten-day period, the court nay proceed with same in the due and reg-Iilar course of business and settle and de-ermine the rights of the parties. It there-ore amounts to a direction only as to pro-•edure, and while, as stated above, not Mandatory, it will be presumed the district Jourts of the state will follow it so far as ossible and thus accomplish the purposes f the measure and determine the validity E the tax levies before the taxes are spread f the tax levies before the taxes are spread tizen will be protected against any illegal vy instead of only those' who are able to contest them in separate suits as now, and a multiplicity of suits avoided.

This proposition, in our opinion, has heretofore been passed on by this court in Kinney v. Heatherington, 38 Okla. 74 , 131 Pac. 1078 , where the provision of the Constitution providing that this court shall render a written opinion in each case within six months after said case has been submitted for a decision was under consideration, and in Hamilton, County Treasurer, et al. v. International Bank of Haskell, 114 Okla. 28 , 242 Pac. 858 . wherein section 9799, C. O. S. 1921, providing that certain appeals to the county court should be given precedence and tried within 30 days, was under consideration, and in each of those cases it was held that provisions of this character are merely directory and enacted for the purpose of expediting trials, and that in the absence of a specific provision to the effect that jurisdiction was lost in the event same was not disposed of within the time mentioned jurisdiction was retained and the case could be tried and disposed of after the time mentioned. .

I am therefore of the opinion, under the authority of these eases, that this portion of the act can be and should be upheld.

As to the next proposition, I am inclined to agree that that irortion of the act providing for a trial in another county than the county where such case is pending and by the judge in chambers when the court is not in session, is in conflict with the Constitution, and therefore void. But in this connection I am further of the opinion that this portion of the measure is properly separable from the rest of the act, and that with this eliminated, the remainder of the act would stand and carry into effect the intention of the people in enacting the measure. j

I agree with syllabus 3 of the opinion, but since the only effect of eliminating the portion above referred to would' be to require all cases filed under this measure to be tried in the county where filed and by the court while in session, it becomes apparent that the same is separable from the rest of the measure, and so eliminating same and applying the law as announced in syllabus 3 of the opinion, which is amply supported by authorities. I am clearly of the opinion that the remainder of the act can be and should be upheld.

This measure was designed to correct ah admitted evil, and if allowed to stand, would, in our opinion, accomplish that pur

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pose, and having been initiated and enacted into law by the people of this state, we feel that it should ,be given a liberal rather than a strict technical construction, and should be upheld if possible to do so without doing violence to the provisions of the Constitution.

It is well settled that every reasonable presumption will be made in favor of validity of laws enacted by the people or by the Legislature, and-' that reasonable doubts as to the constitutionality of the statute will be resolved in favor of its validity. Ex parte Young, 209 U. S. 123 , 28 Sup. Ct.

441; 12

Corpus Juris, 795. While an invasion of the rights and prerogatives of the judicial branch of the government by the legislative brancn cannot and will not be sanctioned by the courts, yet the courts should just as scrupulously refrain from invading the rights or usurping any of the prerogatives of the legislative branch of the government, and should therefore be slow to strike down a measure enacted into law, unless it clearly appears that same is violative of the plain provisions of the Constitution. As to the measure under consideration, it does not so appear to the- writer, and for these reasons, and upon authority of the cases herein cited, I feel impelled to dissent from the conclusion of the majority.

I

am

authorized to state that Mr. Justice RILEY concurs in the views herein expressed.