The Guthrie daily leader. [volume] (Guthrie, Okla.) 1893-1996, 1901-06-13
OF INTEREST TO
LAWYERS
The Supreme Court viii
Decide if Probate Judge
is an Elective Office

Regarding the report that the laws Of
Oklahoma make no 1rorisiun for the elt
tion ~ probate judges. a matter that ~
Of general interest. Attorney General
J. Straug Yesterday. said.
"Neither the Organic act or the statutes
make any provision for the elcctipn oi
probate judges although the orice hselt
is prct ided for IN both. II is a peculiar
state OF Affairs and is now ZIP 20 the
oklahoma supreme court for decision.
le Y officers pending tho decision OF the
court should the supreme Judges hold
the statutes good on that point, Of course
the the onico become an appointive one
at the hands Of the governor"
The cases before the supreme court Tor
settlements are those brought by dotcnt-
ed candidates 90 uust from OHcc PROBATE
Judge Bcauchamp OF Carried cOnuty end
Probate Judge Huber OF Fay county
Under the laws Of the Territory OF OK
lahoma including the Organic act there
has not been q legally qualified probate
court I'm this territory IN number OF
years and besides there are row I'M tins
flee OF probate Judge because of their be-
ing elected 20 this oifice and not ore oi
the lot is entitled TO his position IN any
way and Governor Jenkins can tod,y
name twenty-four men to take their
places and they viii have to surrender
the positions that they occupy because
the office of probate judge is not An ciec-
tive office but belongs TO the itppHnllEc
mower OF the governor alone This ullc-
cation In effect has been made on a case
in the supreme court OF this territory
that was argued az the last session OF the
court and which has been submitted 70
the adjudication of the court upon briefs
and in the testimony In tie case OF the
County Commissioners Of Garfield county
versus Charles f.orain Moore lhls is
the famous case IN which Judge McAtee
WAS the trial Judge and n which the cuin-
missiOners We're jailed for refusing 20 ouey
the order Of the trial Judge
ft viii be remembered Beauchamp was
chosen to be- probate judge or GatuHin
county aud certificate Of election was
issued TO him as such probate judge.
Chas. Loraln Moore was a urmvctatic
caulidata against Beduchamp and he ap-
pcar in court and demanded that the
certificate be issited TO him. This the
county commissioners refused to do and
in % trial they We're ordered 20 90 so
hy Judge McAtee and then persisting 10
their refusal they We're adiudged in con-
tempt and ordered ncarcerated They
have made ain appeal TO the supreme court
OF the territory and they have alleged IN
their brief filed by their attorneys thnt the
0fiice Of probate Judge IS not an elective
office and that Chas. Lorain Moore is
not for this reason entitled TO the Office
even II he did receive majority OF tne
votes % CARRIED county because the Of
fee can only be filled ny the appointment
OF the governor
This statement they anege is proven
by an exhaustive study Of the laws OF
the territory and in their brief they cite
the following section 20 prove their con-
tentiOn and 10 the layman it Is proven
cae4 and therefore there are no probate
judges, and Governor jenkins has the
power OF appointing the twenty-tour
judges OF oklahoma.
In the Organic act making a Cove nment
for Oklahoma IL found the following Ian
Section g. The judicial power Of said
territory shall bs vested In a supreme
court, district courts, probate courts, ana
justices of the peace. The supreme court
shall consist of chief justice and two
associate justices Any two OF whom
shall constitute quorum. Ihey shall
hold their offices for four wears ana un-
tiI their successors are appointed ana
qualified. And they shall not hold q term
annually at the seat OF government OF
said territory The jurisdiction OF the
several courts herein provided Tor buth
appellate and original and thGt or the
probate and of the piustices oi the peace
shau be limited by law provided. that
justices oe the peace who shall Doe elected
ln such manner as the legislative assem-
bly may provide by t,w shan not nave
jurisdiction of any mi tier ln cohlfoNei,
~ when the title or boundary OF ltnd
may be In dispute. or whore the DEBT
or sum claimed shall exceed SV.
This is an tho language Of this part
Section states "Ihe governor shall re-
side within said territory shall Zee COM
mandcr-in-chief of the militia thereon
He may grant pardOus Of Onerscs against
The laws Of said territory. and repriefes
lf Offcnses against the lacy of the United
States, Untn the decision Of the president
mission all officers VINO SHAH lc appoint
cd 20 Office under the laws OF said ter
ritory and shall take care that the laws
De faithfully executed. This gives the
governor the power ot appointing pro-
bate icdges II there are not any holding
Office in awy other legal manner as IL
states, "and shall take caro- that the Jaws
be htfully executed
Thus in the first section quoted II proc
Vldes for the election OF justices but does
not provide FOR the election of probate
aHnaH % H.aHH HHaHf fN g.
governor is given power to appoint any
oniters not provided for by elections.
In section 1893, of the session of l&a
uaragrauh lt says; There shan Doe and
Is hereby creatrd the following officers
county surveyor county treasurer, sheriff
county Uttntney county clerk, PROBATE
judge, register of deeds coroner county
supentendert OF public instruction ana
three county commissioners. and such Of
Acos shall be- filled by election or appoint
ment as provided by law"
The following sections Of the statutes
provide under sepcrate headings for tne
election, qualification and administcrinS
OF the offices named above with the fatal
exception that there is not one word
as to the election of the probate judges
Besides this the brief that is before the
supreme court claims ana proves tnct
there has never been section OF the
statutes of tie territory that provided
for the election OF such an officer ana
that the election Of such oilicers has been
Illegal from the time thai they were drst
elected 70 this time on that Moore b. not
entitled TO n certificate that entities him
10 Dle office OF probate judge.
The case Is IN the hands OF the su-
preme court of the territory and they
have adjourned until July 6th, when they
Will meet and decide the case upon the
point that has been brought upon this
sensational suit and other points that
have also been made in the brief That
the court Will decide according TO the
Jaw ia the c8se there Is no question and
that this Is AN the law there Is IN the
case there is no question. Under this
statement OF facts the contention Of the
attorneys for the county commissioners
OF Garfield county seems 20 be clearly
right and there can be but one way ia
which the case can be decided.
The supreme court OF the territory az
it's meeting win be watched with more
than ordinary attention from the fact
o. ~ .0ion In this case being watched
for