Ex parte Himes

Ex parte Himes
1948 OK CR 107
199 P.2d 226
88 Okl.Cr. 78
Decided: 11/03/1948
Oklahoma Court of Criminal Appeals

(Syllabus.)

1. Case Governed by Ex parte Olden, 88 Okla. 56, 199 P.2d 228. This case is governed by the principles of law set forth in the case of Ex parte Olden, 88 Okla. Cr. 56, 199 P.2d 228. The syllabus of Ex parte Olden is adopted as the syllabus of this case.

2. StatutesPrior Act Repealed by Substitute Act Covering Entire Ground of Subject Matter. Where the Legislature takes up a whole subject anew, and covers the entire ground of the subject matter of a former statute, and evidently intend it as a substitute for it, the prior act will be repealed thereby, although there may be no express words to that effect, and there may be in the old act provisions not embraced in the new.

3. SameRepeal by Implication in Substitute Statute. In construing two statutes relating to same subject, later statute purporting to revise entire subject matter and containing additional provisions for carrying into effect same objects, will be construed to repeal by implication the former statute although no reference is made thereto.

4. PrisonsReformatories Later Act Defining and Regulating Penal Institutions Repeals Former Act by Implication. Chapter 57, Session Laws 1915, a comprehensive act defining and regulating penal institutions in the State of Oklahoma, providing for the transfer of prisoners, and conferring certain authority upon the State Board of Public Affairs, repeals by implication, Chapter 217, of the Session Laws 1913, which likewise dealt with the same subject matter covered by the 1915 act.

5. StatutesStatutes Inadvertently Included by Codifiers not Validated. Where one was authorized to codify existing laws but the authority was expressly withheld to include any statute which had been "repealed" or "held unconstitutional by the highest courts," and such a statute was inadvertently included, adoption of statutes did not have effect of validating the statute inadvertently included.

6. Same. Section 7, Chapter 217, Session Laws 1913 being repealed by Chapter 57, Session Laws 1915, the inclusion of said section in the 1941 statutes, Section 105, Tit. 57 O.S. 1941, did not have the effect of validating the statute inadvertently Included.

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7. Constitutional LawStatutesEffect Accorded Administrative Construction of Provisions by Officers. The construction placed on statutes or constitutional provisions by officers in the discharge of their duties, either at or near the time of the enactment, which has been long acquiesced in, is a just medium for its judicial interpretation.

8. SameEffect of Administrative Construction by State Board of Public Affairs. Administrative construction by State Board of Public Affairs acting under opinion of Attorney General concerning statute authorizing transfer of prisoners from one penitentiary to another which has been acquiesced in by the Legislature for a period of over thirty years is entitled to great weight in interpreting said statute.

9. PrisonsPrisoners Sentenced to Nearest Penitentiary. All persons convicted of a felony shall be by the trial judge sentenced to serve such term for which he shall have been convicted to the nearest State Penitentiary. Section 133, Tit. 57 O.S. 1941

10. SameStatutory Authority for State Board of Public Affairs to Transfer Prisoners From One Prison to Another. Under the statute, Tit. 57 O.S. 1941 § 132, the State Board of Public Affairs in its discretion may transfer prisoners from the State Penitentiary at McAlester to the Reformatory at Granite and may likewise transfer prisoners from the Reformatory at Granite to the Penitentiary at McAlester; to separate the confirmed and incorrigible criminals from those who do not require the restrictions placed around them that the confirmed criminal requires. The only provision is that the authority thus given to transfer prisoners shall never be used to impair the efficiency, or to destroy either of said penal institutions.

11. SameTransfer of Prisoners by State Board of Public Affairs Constitutes Valid Exercise of Administrative Power. Where the State Board of Public Affairs makes transfer of prisoners within its discretionary power, granted by the legislature, such transfer constitutes a valid exercise of administrative power and is not a judicial act.

12. Case Overruled. The case of Ex parte Neighbors, 85 Okla. Cr. 183, 187 P.2d 276, is expressly overruled in so far as it conflicts with the views expressed in this opinion.

Original proceeding in habeas corpus by Lafayette Naron Himes seeking release from confinement in the Granite Reformatory. Writ denied.

Judd L. Black, of Oklahoma City, for petitioner.

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Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for respondent.