LOPER v. SHUMATE

LOPER v. SHUMATE
1955 OK 102
282 P.2d 239
Case Number: 36782
Decided: 04/06/1955
Supreme Court of Oklahoma

DENNIS LOPER, PETITIONER,

v.

JOE D. SHUMATE, IN HIS CAPACITY AS THE JUDGE OF THE DISTRICT COURT, WITHIN AND FOR GARVIN COUNTY, STATE OF OKLAHOMA, RESPONDENT.

Syllabus

¶0 An action instituted for the suspension and removal of public officers under Tit.

[282 P.2d 240]

Original action instituted by Dennis Loper, as petitioner, for a writ of prohibition to prevent the respondent district judge from further proceeding in an action brought to remove said petitioner from office as a member of the Board of Education of Paoli Independent School District 5, Garvin County. Writ Granted.

Bowie & Bowie, Pauls Valley, for petitioner.

Raymond Burger, County Atty., Garvin County, Pauls Valley, for respondent.

BLACKBIRD, J.

¶1 This is an original action instituted in this court by Dennis Loper, petitioner, for a Writ Of Prohibition to prevent the respondent Judge of the District Court of Garvin County, Oklahoma, from proceeding with the trial of said court's cause No. 16867, which was instituted for the stated purpose of removing petitioner from his position as a member of the Board of Education of Paoli Independent School District 5, of said county.

¶2 The question to be decided herein hinges upon the correct interpretation of our Statutes, (Tit.

¶3 Previous to the institution of said action there had been filed in said District Court, on December 20, 1954, under docket No. 16827, and the style of "In re: Grand Jury Proceedings", a document entitled "Partial Report Of Grand Jury" bearing the signatures of all members of a grand jury empaneled in said county a week prior thereto. In said "Report" it was represented, among other things, that four members of "The School Board of Paoli Public School", including Loper, have "been guilty of gross neglect and extreme dereliction of duties as public officials and public school board members, in that they wholly and without justification placed the responsibility of said board upon the shoulders of the previous" School Superintendent, delegating to him, without supervision "the business of running the school, purchasing supplies" and equipment, and apparently refusing or neglecting to "check" such activities of said Superintendent, thereby allowing the misuse of public funds, the waste of school district property and a "complete lack of efficient management." It was further stated in said "Report" that the grand jury "recommends that your Honor should cause to be removed from office * * * (the four members of said school board, naming them) because of their gross neglect and dereliction of duty, in the hope that a suitable school board might be elected to properly organize and manage the school business at Paoli."

¶4 The district court action or suit, Cause No. 16867, supra, thereafter instituted under the style of "State Of Oklahoma, Plaintiff, vs. Dennis Loper, Defendant", was commenced by the filing of an instrument entitled: "Accusating For Removal Of Public Official" drawn and filed, without verification, by the County Attorney.

¶5 This document, in addition to seeking Loper's removal, prayed for his suspension from office "pending a trial of the issues * * *". However, it bore no signature by any member of the grand jury and is not claimed to have ever been seen or handled by that body, or any member thereof, although it is worded as if the grand jury was the complainant and was making the allegations set forth therein.

¶6 Upon the County Attorney's exhibition of this instrument to the then District Judge, on January 7, 1955, said Judge signed a "Notice To Answer Accusation" notifying [282 P.2d 241] Loper to appear before said District Court and answer the "Accusation" on January 14, 1955. According to the sheriff's return on this notice a copy of said so-called "accusation", was served upon Loper the same day. Insofar as is revealed by the single filing mark at the end of these papers (as copied and exhibited to us) none of them was filed in Cause No. 16867, until January 10, 1955. On January 14, Loper filed in said cause a "Plea to the Jurisdiction of the Court", in which he alleged, among other things, the following:

"2. That the Court has no jurisdiction of the defendant in this case for the reason that no accusation of the Grand Jury was presented by the Grand Jury to the District Court of Garvin County, Oklahoma, and the District Court of Garvin County, Oklahoma did not deliver any accusation to the County Attorney of Garvin County, Oklahoma, and that the County Attorney of Garvin County, Oklahoma did not serve any copy of the purported Grand Jury's accusation on Dennis Loper, and that the purported accusation is a purported accusation filed entirely by the County Attorney of Garvin County, Oklahoma, and not by the Grand Jury and that the County Attorney of Garvin County, Oklahoma, is without authority of law or jurisdiction to file an accusation for the removal of Dennis Loper as a school board member of Paoli School District of Garvin County, Oklahoma, and that the purported accusation shows upon its face that it is void and of no force and effect.

"3. That said notice did not give this defendant notice of the intention of the County Attorney of Garvin County, Oklahoma, to file said purported accusation, but gave him notice that the action had been filed, and that said notice was issued after the purported accusation was filed in this case and that he had no notice of the attempted suspension, and that all of said actions are void."

¶7 After a hearing held the same day (January 14) before the respondent judge, on the issues joined by the two above-described pleadings, and at which the county attorney was the only witness interrogated, said Judge entered an order whereby he vacated his predecessor's order suspending Loper from office during the pendency of said action and reset that matter for hearing at a certain future date, but overruled the defendant's plea to said court's jurisdiction.

¶8 Thereafter, said defendant instituted the present action, as petitioner, and as ground for our issuance of the writ herein sought still maintains that Cause No. 16867, supra, was not instituted as provided by Tit.

¶9 At the outset, it must be recognized that neither of the cases above referred to involved the precise question which is first raised herein, and which, if jurisdictional, and determined in petitioner's favor, will be conclusive as to his right to the writ he seeks. That question is: "Must the document or pleading prescribed by Tit.

¶10 While we recognize that the "Partial Report Of Grand Jury" herein shown to have been presented to the former judge of the District Court of Garvin County, but not filed in the action with which we are concerned, might be claimed a recommendation by that body that Mr. Loper be removed from office, this action is quite different from, and should not be confused with, the one prescribed by our statutes on "Intoxicating Liquors" for the removal of officers who fail or refuse to perform the duties therein required of them, where the petition for removal may be filed "on the relation of any citizen * * * upon the recommendation of a grand jury * * *." Tit.

¶11 As we have concluded on the basis of the plain and correct meaning of the statutes involved herein, that the Court was without jurisdiction in Cause No. 16867, supra, to suspend or remove Mr. Loper from his position, the Writ Of Prohibition he petitioned for herein, is hereby granted.

¶12 JOHNSON, C.J., WILLIAMS, V.C.J., and CORN, DAVISON, HALLEY and JACKSON, JJ., concur.