CURRENT DECISIONS OF THE

SUPREME COURT OF OKLAHOMA,

J. C. CHIDSEY, ET AL., Plaintiffs in Error.

VS.

D. F. ELLIS, ET AL., Defendants in Error.

(Rendered Nov. 2nd., 1911.)

No 2611.

ORIGINAL ACTION PRAYING FOR CITATION
FOR CONTEMPT.
Dismissed.

A district court enjoined the board of county commissioners of a county from making any order abandoning a certain building as a court house, and the sheriff from carrying into effect any such order should the board. make it; while this action was pending on appeal in the Supreme Court and a supersedeas issued to an order dissolving this injunction, a judge of a different judicial district was assigned to hold a term of court in that county who made an order requiring the clerk of the district court and the sheriff to remove to another building or place, the books and papers incident to their offices for the holding of such term of court, and held a term of court at such place. Plaintiffs in the original action thereupon filed a petition in the Supreme Court setting up the foregoing facts and prayed that an order be made citing the said district judge for contempt. HELD, that the order made and the court held as above set out, were within the jurisdiction and authority of the court and were not violative of the terms of the injunction and that the petition praying for a citation and for contempt did not state facts sufficient to justify or authorize the issuance of the writ prayed for.

(Syllabus by the Court.)

W. E. Latimer, Carr & Field, and Thompson & Patterson, Attorneys for Plaintiffs in Error.

Ledbetter, Stuart & Bell, Attorneys for Defendants in

Error.

A. C. Cruce, of Counsel for Judge S. H. Russell.

Opinion of the Court, by DUNN, J.:

This proceeding was begun by plaintiffs in error in the case of J. .C Chidsey, et al., vs. D. F. Ellis, et al., by

filing an original petition in this court on August 10th, 1911, praying that certain parties along with Judge S. H. Russell, a district judge of one of the judicial districts of this state, be cited to appear before this court to show cause why they and he should not be punished for contempt for the violation of a supersedeas issued to an order dismissing a temporary injunction granted in the case of Chidsey, et al., vs. Ellis, et al. From the petition or information filed it appears that on February 6th, 1911, R. McMillan, judge of the district court of Murray county, allowed a temporary injunction in a case wherein Chidsey et al. were plaintiffs and Ellis et al. were defendants in which Ellis, Alexander and Smith, individuals composing the board of county commissioners of Murray county, were restrained and enjoined from making and entering any order abandoning the court house of Murray county situated on block 201, in the city of Sulphur, and establishing offices for the court for officials of Murray county at any other place in the city of Sulphur than on said block 201, and Rawlings, sheriff of said county, and all persons acting by, through or under him, were enjoined and restrained from executing any such order, should the same be made by said board of commissioners. Thereafter and on the 17th day of April, 1911, on the motion of defendants, the judge of said court entered an order dissolving the temporary injunction, whereupon plaintiffs filed a bond superseding said order of dissolution, and duly lodged the action in this court for review. It is averred in the information filed herein. that on the 4th day of August, 1911, Judge S. H. Russell, district judge of the 8th judicial district of the State of Oklahoma, was assigned to hold the August, 1911, term of district court in and for the said county, and that he made and entered an order directed to the sheriff and the district clerk of said county, requiring them to move all books and papers and other things necessary and incident to the conducting of their respective offices to a court house located by the commissioners of the said county in violation of the injunction aforesaid, and elsewhere in the city than on block 201, and that on the 7th day of August, 1911,

the said judge opened a term ofdistrict court in said county; that the said proceedings were held in violation of the terms of the injunction with full knowledge thereof and in contempt of this court. All of the parties originally cited have been dismissed by plaintiffs with the exception of Judge Russell, and we are asked to cite him to the bar of this court and punish him for the contempt of which it is alleged he has been guilty.

Waiving all the objections which are urged, and assuming for the purpose of the conclusion to which we have come that the proceeding here brought is in every way formal, properly begun and instituted by the proper parties, we pass directly to the merits of the matter.

The supersedeas kept in force the injunction which was issued and denied to all parties falling within its purview, the right to violate it. The specific order thus kept in force, ran to the board of county commissioners of Murray county and each of its members were "restrained and enjoined from making and entering any order abandoning the present court house of Murray county, situated on block No. 201 of the city of Sulphur, Oklahoma, and from establishing quarters for the court and various officials of Murray county at any other place in the city of Sulphur. Murray county, than at the present court house, located on the said block No. 201 in the city of Sulphur, until the further order of the court herein, and that Mac Rawlings, sheriff of Murray county, and any and all persons acting by, through or under him, is hereby enjoined and restrained from executing and such crder should the same be made by said board of commissioners."

The order which was made by Judge Russell, and for the making of which it is here sought to punish him, is as follows:

"To M. S. Rawlings, Sheriff, Murray County, Okl1homa, and to J. C. Potts, District Clerk, Murray County, Oklahoma:

"In as much as I have been ordered by the Supreme Court of this state to hold and convene the term of the district court in Murray county, Oklahoma, to begin such

term on the 7th day of August, 1911, and in as much as there is some misunderstanding that has been brought to my knowledge by reason of the fact that there is some confusion as to where court will be held, and in as much as a court house has been duly selected and designated by the county commissioners court of said Murray county, as is shown by the minutes of such commissioners, such entry being made and entered on the 17th day of April, 1911, and in as much as the April term of the district court of said Murray county was adjourned by the regular district judge of the 14th Judicial District, to be convened in the new court house, selected by said county commissioners court on the 7th day of August, 1911, now, therefore, this is to direct you, the said M. S. Rawlings as sheriff of said Murray county, and to you, J. C. Potts, clerk of the district court of Murray county, to proceed at once to move all books, papers and other things necessarily incident to the conducting of your respective offices to the new court house designated by the county commissioners of Murray county, Oklahoma, and have things in readiness to begin the term of court which is to convene on the 7th day of August, 1911. (Signed) S. H. Russel, district judge of the 8th judicial district and assigned to hold the August, 1911, term of the 14th judicial district in and for Murray county, Oklahoma, at Sulphur in said county."

The most casual consideration of the two orders makes it apparent that the letter of the injunction was in no way violated or infringed. Judge Russell was not within the purview of the order nor was his act or action within its scope. The order was directed to different people and was designed to prevent the exercise of an entirely different power than that here exercised. The things which the order forbids were not done by either the parties thereto or by Jugde Russell. The order was against the county commissioners of that county and restrained them from making any order abandoning the present court house of that county and restrained them from establishing quarters for the court and various officials of Murray

county at any other place in the city of Sulphur, and restrained the sheriff and all or any persons acting by, through or under him, from executing any such order. What was here done by Judge Russell was an entirely different matter than that which was restrained, and was an action which in our judgment the statutes of the state fully justify.

Sec. 1684, Compiled Laws of Oklahoma, 1909, provides:

"In any county where there is no courthouse or jail erected by the county, or where those erected have not sufficient capacity, it shall be the duty of the board of county commissioners to provide for court room, jail, and offices for the following nemed officers: Sheriff, treasurer, register of deeds, county clerk, county attorney, superintendent of public schools, and judge of probate, to be furnished by the county in a suitable building or buildings, for the lowest rent to be obtained at the county seat, or to secure and occupy suitable rooms at a free rent within the limits of the county seat or any of the additions thereto, until such county builds a courthouse. They shall also provide the courts appointed to be held therein, with attendants, fuel, lights and stationery, suitable for the transaction of their business. If the commissioners neglect, the court may order the sheriff to do so, and the expenses insurred by him in carrying the order into effect when certified by the court, shall be a county charge."

From this statute it is to be observed that if the court house provided does not have sufficient capacity, it is the duty of the county commissioners in the first instance. to provide for court room, jail, etc., in some suitable building, and that if the commissioners neglect, the court may order the sheriff to do so and the expenses incurred shall thereupon become a county charge.

Sec. 1686, id., provides that "the power to rent court rooms shall only extend to such rooms as the court using the same may approve," thereby placing or rather leaving the power in the court itself to say independent of the