Cameron, Superintendent v. Parker

The opinion of the court was delivered by On the 23d day of February, 1894, Evan D. Cameron, as superintendent of public instruction and ex-officio auditor of the Territory of Oklahoma, filed his petition and affidavit for a writ of mandamus against J. H. Parker, in this court, praying that an alternative writ issue, commanding said defendant, J. H. Parker, on service thereof, to forthwith deliver to him all office furniture and fixtures, seal, books, records, files and other property, of every kind or character, belonging or pertaining to the office of superintendent of public instruction and ex-officio auditor of the Territory of Oklahoma, as aforesaid, or, on default thereof, to be and appear before the supreme court of Oklahoma Territory, on the 1st day of March, 1894, at 10 o'clock A. M., to show why he has not so rendered obedience as commanded in said writ. The writ was allowed by Associate Justice Scott, which, embracing all exhibits, and ommitting caption and attestation, reads as follows: "The Territory of Oklahoma, to J. H. Parker, Greeting: "Whereas, it has been made to appear to said court and the Hon. Henry W. Scott, associate justice thereof, by the petition and affidavit of the plaintiff, Evan D. Cameron, that you, the said J. H. Parker, were, on the 21st day of February, 1894, the duly qualified and acting superintendent of public instruction, and ex-officio auditor of the Territory of Oklahoma; that on said day, acting upon charges filed, and after due notice *Page 279 and hearing, his excellency, William C. Renfrow, governor of the Territory of Oklahoma, removed you, the said Parker, from said office for cause, to-wit: malfeasance in office and neglect of duty, a copy of said order of removal, made as aforesaid, is hereto attached, marked 'Exhibit A', and made a part of this writ; that thereby said office became and was vacant; that afterwards, on said 21st day of February, the plaintiff, Evan D. Cameron, was duly appointed and commissioned as superintendent of public instruction, and ex-officio auditor of the Territory of Oklahoma, vice J. H. Parker, removed; that a copy of said commission is hereto attached and marked 'Exhibit B,' and made a part of this writ; that after the appointment aforesaid, and on the same day, said plaintiff, Evan D. Cameron, qualified as such officer by filing the bonds and subscribing the oath of office required by law; that he then and there became and now is the legally qualified incumbent of said office. "That the said defendant, Parker, after his removal from the office of superintendent of public instruction and ex-officio auditor as aforesaid, retained the exclusive possession of, and continues to retain in his custody and control, all the property and effects belonging to said office, consisting as nearly as can be described, of office furniture and fixtures, a safe, books, records, files, seal and other paraphernalia belonging to said office of superintendent of public instruction and ex-officio auditor of the Territory of Oklahoma; that demand has been made on said defendant, Parker, by the said plaintiff, Cameron, for the possession of said property, paraphernalia and effects belonging to said office, and said Parker wrongfully refused and still wrongfully and unlawfully refuses to deliver the same or any part thereof to the plaintiff; that a copy of said demand, with the affidavit of service by said Evan D. Cameron, is hereto attached marked 'Exhibit C' and made a part of this writ; that by reason of said wrongful and unlawful refusal to deliver said property belonging to said office as aforesaid, the plaintiff is unable to properly discharge his official duties; that he has no adequate remedy at law by which to obtain possession of said property and effects; that unless the relief asked for is granted *Page 280 great injury will result to the public having business with said office, and irreparable injury and damage will be done the plaintiff herein: "Now, therefore, being willing that full and speedy justice shall be done in the premises, we do command you, the said J. H. Parker, that forthwith on the service of this writ you deliver to the plaintiff, Evan D. Cameron, superintendent of public instruction and ex-officio auditor of the Territory of Oklahoma, the office furniture and fixtures, the seal, books, records, files, safe and all other property and paraphernalia pertaining or in anywise belonging to said office, or that you shall show cause to the honorable supreme court of the Territory of Oklahoma, at its session at 10 o'clock A. M., on the 1st day of March, 1894, at the city of Guthrie, why you have not done so; and have you then and there this writ with your return that you have done as you are hereby commanded. "(Signed) HENRY W. SCOTT, "Associate Justice of the Supreme Court of the Territory of Oklahoma." "Exhibit A. "EXECUTIVE OFFICE, February 21, 1894. "In the matter of the charges and specifications of malfeasance in office and neglect of duty against J. H. Parker, territorial superintendent of public instruction and ex-officio auditor of the Territory of Oklahoma. "Certain charges and specifications having been preferred against J. H. Parker, superintendent of public instruction and ex-officio auditor, charging malfeasance and neglect of duty, and duly filed in this office, and afterwards certain amended and supplemental charges were filed and a copy of said charges and specifications, as well as the amended and supplemental charges and specifications, having been served on said J. H. Parker, together with a notice of the filing of the same in this office, and said J. H. Parker was given until the 29th day of August, 1893, to file his answer or any other explanation he might desire to make to said charges and specifications. On the 29th day of August, 1893, said Parker appeared at this office in person and by his attorneys, and presented *Page 281 his written objection to the authority of the governor to examine into this matter, which objection was overruled and the said Parker asked for further time to prepare and file a written answer to said charges and specifications, which request for time was granted, and on the 6th day of September, 1893, said J. H. Parker appeared in person and by his attorneys and filed his answer and explanation in writing to said amended charges and specifications. "After carefully examining and fully investigating said answer and explanation and said matter coming on this day to be further considered, and it appearing that said charges and specifications filed against said Parker, as superintendent of public instruction and ex-officio auditor of said territory, and the evidence submitted in support thereof, and also the answer of said Parker and his explanation of said charges, I find that the allegations of malfeasance in office contained in charge No. 1 and specifications thereunder, have been fully made out and sustained, in this, to-wit.: That said Parker, as such superintendent and auditor, illegally and wrongfully audited and allowed certain accounts for mileage and expenses of the board of regents of the Oklahoma Agricultural and Mechanical college, and also audited and wrongfully allowed certain accounts of said regents for per diem and mileage; and also audited and wrongfully allowed certain accounts of the State Capital Printing Co., for printing the laws of the last legislative assembly of the Territory of Oklahoma, beyond the maximum fixed by law; and I further find that the allegation of neglect of duty, contained in charge No. 2, to have been fully made out and sustained, and no further investigation or hearing and no exercise of judicial power being necessary to the finding and establishing of said charges of malfeasance and neglect of duty, it is considered that said charges ought to be and have been sustained and that the same are sufficient cause, as fixed by statute, for the removal of said J. H. Parker from office. "Therefore, by the power vested in me by the Organic Act of the Territory of Oklahoma, and the laws enacted thereunder, it is ordered that said J. H. Parker should be and he is, hereby removed from the office of *Page 282 superintendent of public instruction and ex-officio auditor of the Territory of Oklahoma. "In testimony whereof I have hereunto set my hand and caused the grand seal of the territory to be affixed at the city of Guthrie, this 21st day of February, A.D. 1894. WILLIAM C. RENFROW, "Attest: Governor of Oklahoma. "THOMAS J. LOWE, "Secretary. "Exhibit B. "To All Who See These Presents, Greeting: "Know ye, that reposing special trust and confidence in the ability and integrity of Evan D. Cameron, I have appointed and do hereby commission him superintendent of public instruction and ex-officio auditor of the Territory of Oklahoma, and do authorize and empower him to execute and fulfill the duties of that office according to law and to have and to hold the said office with all powers, privileges and emoluments thereunto appertaining unto him, the said Evan D. Cameron, to fill the unexpired term of J. H. Parker, removed. "In testimony whereof I have caused these letters to be made patent, and the great seal of the territory to be hereunto affixed. "Given under my hand at the city of Guthrie, the 21st day of February, in the year of our Lord one thousand eight hundred and ninety-four and of the independence of the United States of America the one hundred and eighteenth. "By the governor: WILLIAM C. RENFROW. "THOMAS J. LOWE, "Secretary of the Territory. "I, Thomas J. Lowe, secretary of the Territory of Oklahoma, do hereby certify the above and foregoing to be a true and correct copy of the commission of Evan D. Cameron, as superintendent of public instruction and ex-officio auditor of the Territory of Oklahoma. "Issued on the 21st day of February, 1894. *Page 283 "Witness my hand and the grand seal of the territory of Oklahoma Territory. "Done at Guthrie this February 23, 1893. "[SEAL.] THOMAS J. LOWE, "Secretary. "Exhibit C. "GUTHRIE, O. T., February 21, 1894. "Rev. J. H. Parker, city. — Sir: You are hereby notified that I, Evan D. Cameron, have this day been appointed superintendent of public instruction and ex-officio auditor of the Territory of Oklahoma, by the governor of said territory; that I have duly qualified as such official by filing the bonds and subscribing the oath of office required by law, and demand is hereby made on yon for the possession of all the books, records, files, seal, property and effects of every kind or character belonging or pertaining to said offices of superintendent of public instruction and ex-officio auditor. E. D. CAMERON, "Superintendent of Public Instruction and Ex-officio Auditor. "TERRITORY OF OKLAHOMA, OKLAHOMA COUNTY, SS: "Evan D. Cameron, of lawful age, on his oath, says, that on the 21st day of February, 1894, at the city of Guthrie, Logan county, Territory of Oklahoma, he delivered to J. H. Parker in person a true and correct copy of the above and foregoing notice and demand. "E. D. CAMERON. "Subscribed and sworn to before me this 23d day of February, 1894. "(SEAL.) W. H. EBEY, "Clerk District Court, Third district. "By OLLIE E. CRAMER, "Deputy. "Exhibit D. "To Hon. J. H. Parker, Territorial Superintendent of PublicInstruction and ex-Officio Auditor. "Sir: You will please take notice that the accompanying charges and specifications against you have been filed with the undersigned as governor of the *Page 284 Territory of Oklahoma and that you will be given an opportunity to answer or explain the same at the governor's office in the city of Guthrie on the 29th day of August, 1893, at 2 o'clock P. M. "W. C. RENFROW, "Governor. "By agreement of attorneys, made in open court this 3d day of March, 1894, the above notice was filed and made Exhibit 'D' to the alternative writ issued in the case of Cameron vs. Parker, pending in the supreme court of the Territory of Oklahoma." On the 1st day of March, 1894, the plaintiff filed a motion to set aside and quash the alternative writ ofmandamus, assigning therefor the following reasons: "1. Because the court had no jurisdiction to grant the relief prayed for. "2. Because said writ fails to state facts sufficient to entitle the plaintiff to the relief sought. "3. Because said writ did not state facts sufficient to constitute a cause of action against the defendant in favor of the plaintiff. "4. Because as shown on the face of said writ and upon the allegations and statements therein contained, said plaintiff has a plain, speedy and adequate remedy at law." This motion the court overruled and thereupon the defendant, on the 3d day of March, 1894, filed the following return to the alternative writ, which, omitting caption, reads as follows, to-wit: "Comes now J. H. Parker, defendant in the above entitled cause, and for his return to the alternative writ ofmandamus heretofore issued therein, respectfully states to the honorable court: "1. That he denies each and every allegation, averment and statement made and contained in said alternative writ of mandamus and the exhibits thereto attached not hereinafter specifically admitted. "2. For second and further return to said alternative writ, the said J. H. Parker respectfully says, that heretofore, to-wit: on the third day of February, 1893, *Page 285 the Hon. A. J. Seay, then governor of the Territory of Oklahoma, nominated and by and with the advice and consent of the council of the Territory of Oklahoma, then in session, appointed him superintendent of public instruction and ex-officio auditor of the Territory of Oklahoma for the term of two years, and duly and legally issued to him a commission as such officers; and from that time until the present has exercised the functions of said office, and in all things honestly, conscientiously and properly discharged his official duties; and therefore admits that on the 21st day of February, 1894, he was the duly qualified and acting superintendent of public instruction and ex-officio auditor of the Territory of Oklahoma, that during all the time aforesaid as such superintendent of public instruction and ex-officio auditor of the Territory of Oklahoma he has had and retained the exclusive possession of, and continues to retain in his custody and control, all the property and effects belonging to said office, consisting of office furniture and fixtures, safe, books, records, files, seal and other paraphernalia belonging to said office of superintendent of public instruction and ex-officio auditor of the Territory of Oklahoma; that on the 21st day of February, 1894, in the city of Guthrie, county of Logan and Territory of Oklahoma, Evan D. Cameron, mentioned in said alternative writ and the exhibits thereto attached, served upon him, by delivering a true copy thereof, the alleged notice and demand, marked 'exhibit C,' and made a part of said alternative writ, and this defendant refused, and still refuses, to deliver to the said Evan D. Cameron the possession of all the books, records, files, seal, property and effects of every kind and character belonging or pertaining to the said office of superintendent of public instruction and ex-officio auditor of the Territory of Oklahoma, or to deliver to him any part thereof, for the reason, as defendant avers, that the said J. H. Parker now is, and during all the time herein aforesaid has been, superintendent of public instruction and ex-officio auditor of the Territory of Oklahoma, having at no time resigned as such officer, or died, or in any legal manner or by any competent authority been removed, and for the further reason that the said Evan D. Cameron has not, *Page 286 at any time, been legally appointed to such offices by any competent authority, and for the reason that this defendant's commission to said office, not having expired, and being in active discharge of his duties as such officer, he is entitled to retain possession of all the property and insignia of said office, and the said Evan D. Cameron, not holding such offices, is not entitled to the possession of said property or any part thereof; and defendant further respectfully avers and admits that on the 21st day of February, 1894, there was delivered to him the alleged notice of removal of which exhibit 'A' to said writ is a copy; that heretofore, to-wit, on the 4th day of September, 1893, and subsequent thereto, by amendment, certain charges and specifications were preferred against him, as such officer, charging him with malfeasance in office and neglect of duty, by allegations thereof setting forth specific matters in support of such allegations, all of which were filed with his excellency, W. C. Renfrow, then governor of the Territory of Oklahoma, a copy of which said charges and specifications, as well as the amendment and supplemental charges and specifications, were served upon him, together with a notice of the filing of the same as aforesaid, and giving him time thereafter to appear thereto, by answer or other explanation; that afterwards on the __________ day of __________, 1893, he, the said defendant, by his attorneys, appeared at the office of his excellency, the governor, and presented and filed his written demurrer and objection to the power, authority and jurisdiction of his excellency, the governor, to examine into said matter or take any cognizance thereof or action thereon, which demurrer and objection was overruled and this defendant granted time to file an answer and explanation in writing to such alleged charges and specifications, which he thereafter, on or about the __________ day of September, 1893, did, and defendant avers that from the time he filed said answer and explanation up to the 21st day of February, 1894, he had no notice of any further action or proceedings being taken or had in relation thereto, and, therefore, avers that at no time had he a hearing upon said alleged charges and specifications before his excellency, the governor, or any opportunity to appear and present evidence or defend *Page 287 himself against the same, and that if any hearing was had thereon, it was without notice to him and without any opportunity whatever having been given him to appear at such hearing, and he specifically denies that as such officer he ever illegally and wrongfully audited and allowed certain accounts for mileage and expenses of the board of regents of the Oklahoma Agricultural and Mechanical college, or audited and wrongfully allowed certain accounts of said regents for per diem and mileage, or audited and wrongfully allowed certain accounts of the State Capital Printing Co., for the printing of the laws of the last session of the legislative assembly of the Territory of Oklahoma beyond the maximum or the amounts fixed and allowed by law, or that he has at any time been guilty of neglect of duty as such officer, or that the allegations of neglect of duty, contained in charge No. 2, to have been fully made out or sustained, or that he has at any time been guilty of malfeasance in office or neglect of duty as such officer; he therefore says that he ought not to be deprived of his possession of the property and insignia of his said office. "Wherefore, he prays that the prayer of the plaintiff herein be denied and for all other and proper relief. J. H. PARKER. "Sworn and subscribed before me this 28th day of February, 1894. ALFRED S. DEWITT, "Notary Public. "[SEAL.] Commission expires January 22, 1895." The case was thereupon taken by the court upon briefs and oral argument. Peremptory writ of mandamus awarded.