# Jones v. Winters

> Supreme Court of Oklahoma · December 19, 1961 · 369 P.2d 135

URL: https://www.frixlaw.com/law-library/cases/9543255

## Case

- **Full name:** Jenkin Lloyd JONES, and Jenkin Lloyd Jones, as Relator, Petitioner, v. Leo WINTERS, Secretary of the State Election Board of Oklahoma, Clee Fitzgerald, Chairman of the State Election Board of Oklahoma, Herbert F. Hewett, Member of the State Election Board of Oklahoma, Respondents
- **Court:** Supreme Court of Oklahoma
- **Decided:** December 19, 1961
- **Citations:** 369 P.2d 135; 1961 Okla. LEXIS 345
- **Precedential status:** Published
- **Opinion:** Dissent by Berry
- **Judges:** Blackbird, Welch, Davison, Johnson, Irwin, Williams, Halley, Berry
- **Cited by:** 2 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9543255

## Opinion text

BERRY, Justice
(dissenting).
I am unable to agree with the majority on the proposition that no relief should be granted in this case.
Two basic issues or questions are posed. First, is House Bill No. 1033 of the last legislative session apportioning the House of Representatives unconstitutional? Second, if the Bill is unconstitutional should the respondents be prohibited from proceeding under and in accordance with the Bill?
As I read the majority opinion the question first posed above is answered in the affirmative. If such is the answer, I agree.
The population of Oklahoma as determined by the last decennial Federal census was such that under the provisions of our Constitution (Act S, Sec. 10 et seq.) each representative district must have a population of not less than 11,641. The mentioned census shows that the population of 26 of the counties of this state was less than 11,-641. Under the Act before us each of said counties is constituted a separate legislative district and as such is entitled to elect one representative. This clearly violates the Constitution.
While the majority does not directly answer the question last above posed, the question, as I read the majority opinion, is indirectly answered by saying in substance that prohibiting respondents from proceeding under the Act in controversy would create a condition more undesirable than that which would result if respondents proceeded under a constitutional law, and it is therefore within the discretion of this court to deny relief. I am unable to agree.
I am of the opinion that it is not within the discretion of this court to deny relief where a lower tribunal over which it has superintending control will act under an unconstitutional act if not prohibited. To my way of thinking it is mandatory upon this court to prohibit respondents from proceeding under an act which is clearly unconstitutional. Sec. 42, Am.Jur. “Prohibition”, Sec. 7, p. 143, and annotated notes beginning at p. 1262, 141 A.L.R.
At p. 1263 of the mentioned annotated notes, this is said:
“As stated in 77 A.L.R. 247 , there has been considerable difference of opinion as to whether the granting of the writ is discretionary or demandable as a matter of right, and, as there said, the modern rule seems to be that where the court sought to be controlled clearly has no jurisdiction and there is no other remedy, a party is entitled to the writ as a matter of right. * * * ”
For reasons stated, I disagree with and dissent from the majority opinion on the proposition that it is within the discretion of this court to prohibit a lower tribunal from proceeding under an unconstitutional act.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9543255. Public record. Not legal advice.