"It is not libel per se to charge that plaintiff had made trouble at defendant's mines, or that he had run negroes out of their homes, such conduct not necessarily being a crime."

Having reached the conclusion that the service letter is not libelous per se, the trial court committed prejudicial error in advising the jury to the contrary.

(Said service letter not being libelous per se, there can be no recovery, even though it is false, without the allegation and proof of special damages). Sherman Mach. Co. v. Dun, et al, supra; McKenney v. Carpenter, et al, supra; Key v. Armstrong-Byrd & Co., supra.

The judgment of the trial court should be reversed and the cause remanded.

1.

2.

3.

4.

tawatomie county, Oklahoma, Plaintiff in Error v. The State of Oklahoma, ex rel City of Shawnee, 2 Municipal Corporation, Defendant in Error.

By Sec. 2, Art. 3, Chap. 43, Sess. Laws 1895, p. 220, amending. Sec. 1, Art. 10, Chap. 70, Stat. 1893, and by Sec. 3, Art. 9, Chap. 32, Sess. Laws 1897, p. 257, it was provided that all interest penalties and forfeitures upon delinquent taxes should be paid into the County Sinking Fund.

Said provisions were not repealed by Act of March 12, 1897, amending Sec. 2, Art. 3. Chap. 43 Sess. Laws 1895.

Where statutes relating to the same subject matter have been enacted at the same legislative session, they should be construed together as in pari materia so that effect may be given to each, rather than to infer that one of such statutes was meant to destroy the other.

The construction placed on the statutes by officers charged with the enforcement thereof in the discharge of their duties at or near the time of their enactment, which has long been acquiesced in, is a just medium for their judicial interpreta

county, seeking a writ of mandamus to compel the defendant as such treasurer to pay over to the City of Shawnee certain penalties by way of interest that had accrued on taxes levied on property within the City of Shawnee by said city, and collected by the County Treasurer.

The City of Shawnee contends that under the law it is entitled to said penalties, and that same are wrongfully retained by the defendant, while said defendant as county treasurer contends that said penalties properly belong to the county sinking fund, and should be by him credited to said fund.

It is a general rule, in the absence of statutory provisions, to the contrary, that interest and penalties accruing upon taxes follow the tax and go to the state, county or city, according as the one or the other is entitled to the tax itself, and in cases where two or more of these are interested in the tax, such interest and penalties should be apportioned among them in the ratio of their respective share in the tax. 37 Cyc. 1594. The natural inquiry therefore would be whether any disposition of the interest and penalties upon delinquent taxes has been made by legislative provision.

By Sec. 1, Art. 10, Chap. 70, Stat. 1893, it was provided that to all taxes, after delinquent, there should be added certain penalties; but no provision was contained in the statutes of 1893 making disposition of these penalties. This section had reference to the revenue of the Territory, and to counties, while the provisions regualting revenue of cities was contained in sections 9 to 16, both inclusive, Art. 3, Chap. 14; and by Sec. 15 of said last named article it was provided that all taxes and assessments levied by cities should be certified to the county clerk to be placed on the tax rolls for collection, subject to the same penalties and should be collected in like manner as other taxes.

By Sec. 2, Art. 3, Chap. 43, Sess. Laws 1895, p. 220, Sec. 1. Art. 10, Chap. 70, Stat. 1893, being Sec. 5643, was amended in reference to the time at which taxes should become delinquent, and adding thereto certain penalties, and further providing:

"Provided. All penalties shall be credited to the County Fund; and all rebates charged to the same fund.

Prior to this time the law provided that county taxes should constitute three funds, to-wit: The general fund; the road and

bridge fund; and the sinking fund. Secs. 5625-7, Stat. 1893. On the 8th day of March, 1895, the legislature enacted Art. 2, Chap. 43, Sess. Laws 1895, pp. 216, 219, by which was created the salary fund, court fund, poor fund, road and bridge fund, supply fund, contingent fund, and sinking fund. This Act was passed on the same day as the provision requiring penalties to go into the county fund, and this remained the condition of the law until 1897. when the legislature enacted Art. 9, Chap. 32, Sess. Laws 1897, p. 257, creating sinking funds for all municipal corporations authorized by law to levy taxes; and by Sec. 3 of said article it was provided:

"Sec. 3. All penalties, interest and forfeitures now accruing or which hereafter may accrue, to the counties on delinquent taxes, shall be turned into the sinking fund; and all rebates upon taxes allowed by the County Commissioners shall be paid out of the sinking fund. *****",

At this time by virtue of Sec. 2, Art. 3, Chap. 43, Session Laws 1895, penalties upon all taxes, territorial, county and city, were credited to the county fund, and all rebates charged to the same fund; but as has been seen there was in reality at that time no county fund, as such, but the county taxes were divided up into various funds, one of which was denominated sinking fund. And by Sec. 3, Art. 9, Chap. 32, Sess. Laws 1897, the legislature directed that all penalties, interest and forfeitures on delinquent taxes should be turned into the sinking fund.

Plaintiff contends that this section intended to direct that only penalties accruing on territorial and county taxes should be paid into the county sinking fund, and did not include city taxes. We do not think this contention is well taken. By Sec. 2, Art. 3, Chap. 43, Session Laws 1895, all penalties were required to be paid into the county fund, and there being no county fund, as such, it was the intention and purpose of the legislature in enacting the provision in question to designate the particular fund into which such penalties should be paid, and if it had been the intention of the legislature to except from this provision penalties upon city taxes it would have been an easy matter to say so and not having said so, it is apparent that no change in the law was meant, except to designate the particular fund into which the penalties should go. This Act was approved March 3, 1897. On March 12, 1897, the legislature amended Sec. 2, Art. 3, Chap. 43, Sess. Laws 1895, with reference to delinquent taxes, making provision for the time when taxes should become delinquent, and fixing the rate of interest that should accrue as penalties thereon, and prescribing the manner of their collection. This section as amended omitted the proviso which directed that all penalties, interest and forfeitures should be credited to the county fund, and all rebates charged to the same fund; and plaintiff contends that by reason of such omission the legislature intended a repeal thereof. It will be seen that on March 3, 1897, the legisla

ture in the article above referred to relating to, sinking funds had directed that all penalties, interest and forfeitures should be turned into the county sinking fund; and the Act of March 12, 1897, which omitted the proviso in the Act of 1895 was passed at the same session of the legislature.

The question then is, whether by the Act of March 12, it was intended to repeal the Act of March 3, 1897. We do not think so. The rule of statutory construction is that where statutes relating to the same subject matter have been enacted at the same legislative session, they should be construed together as in pari materia, so that effect may be given to each, rather than to infer that one of the statutes was meant to destroy the other. Hess v. Trigg, et al., 8 Okla. 286; Garlon et ux. v. Hudson Kimberley Pub. Co., 8 Okla. 631; Ratliff v. Fleener, 43, Okla. 652, 143 Pac. 1050; Sutherland Stat. Const (2nd Ed.) See. 443; Endlich Int. Stat Sec. 43; Black, Int. of Law. Sec. 86. The two statutes are not repugnant to each other, but on the contrary may be construed together and each given effect. That this was the legislative intent is evidenced by the fact that Art. 9, Chap. 43, Sess. Laws 1897, is found in Wilson's Rev. & Ann. Stat. 1903, as Art. 2, Chap. 73, being secs 5892 to 5895, both inclusive; and was carried into Snyder's Comp. Laws 1909, as Sections 7402 to 7405; and with certain modifications is found in Rev. Laws 1910, as Secs. 6771, 6775.

Thus it is seen that this provision has been in the statutes of the Territory and of the State from its first enactment in 1895 up to the present time. It therefore appears that it was the legislative intent that all penalties accruing on delinquent taxes, whether of the Territory, county or city, should be paid into the county sinking fund; and this being the statutory disposition of such penalties and interest, the authorities relied upon by plaintiff can have no controlling force. If there were any doubt of this being the correct construction of these statutes, unless the legis lative intent to the contrary were clearly apparent, the fact that in the various counties officials charged with the enforcement thereof from the date of the statute until the present, in the discharge of their duties under the revenue laws of the Territory and State have given such statute the same construction as we give it would be of great weight, and we would not disregard such construction without the most cogent and persuasive

reasons.

In League v. Town of Taloga, 35 Okla. 277, 129 Pac. 702, it was said:

"The construction placed on statutes by officers in the discharge of their duty, either at or near their enactment, which has long been acquiesced in is a just medium for their judicial interpretation."

And in Reardon v. Hooker, 27 Okla. 460, 109 Pac. 527, it was said:

"Where the meaning of a statute is doubtful, long usage is a just medium by which to expound it."

For the reasons given the judgment of the Superior Court of Pottawatomie County is reversed and the cause is remanded with direc

tions to enter a decree denying the writ and dismissing the case.

(All the Justices Concur).

The following opinions from the Industrial Commission, involve questions of law as applied under the Workmen's Compensation Act:

Oris Price, claimant, v. the Bartlesville Zinc Company, respondent. Travelers' Insurance Company, insurance carrier. Opinion by McDonald. Findings for claim

ant.

SYLLABUS:

The claimant is employed by the Bartlesville Zinc Company at a daily wage of $3.20 per day, and works 7 days per week. The claimant contends that he should receive one-half of his wages actually earned, computed by multiplying his daily wage by 365, dividing that sum by 300, to ascertain his actual average daily wage, and multiplying that by 7. Subsection 1, section 5, of article 2, reads

as

follows: "If the injured employe shall have worked in the employment in which he was working at the time of the accident, whether for the same employer or not, during substantially the whole of the year immediately preceding his injury, his average annual earnings shall consist of three hundred times the average daily wage or salary which he shall have earned in such employment during the days when so employed." Sub-sec

tion 4, of section 5, of article 2, is as follows: "The average weekly wages of an employe shall be one fifty-secondth part of his average annual earnings.' Held, That under the foregoing provisions of

the Act, the only method of computing compensation in Oklahoma is to multiply the daily wage by 300 and divide by 52, to ascertain his weekly wage, and to allow compensation at 50 per cent of that sum, and as claimant in this case received an average daily wage of $3.20, which should be multiplied by 300 days which equals $960.00, one fifty-secondth of which is $18.46, and that his compensation would be 50 per cent of said sum, which would be $9.23, compensation which he would be entitled to during his period of disability.

The main question concerned in this case was to determine under the terms of the compensation act just what the injured was entitled to. His claim was based on the fact that he worked seven days in the week and he was paid $3.20 a day. In disposing of the case, the Commission discussed it as follows:

The ques

tion presented in this case is to determine the compensation the claimant is entitled to under the terms of the Okla

homa

Workmen's Compensation Act. The Act provides for the computing of compensation as follows: sub-section 1, section 5, of article 2, is as follows: "If the injured employe shall have worked in the employment in which he was working at the time of the accident, whether for the same employer or not, during substantially the whole of the year immediately preceding his injury, his average annual earnings shall consist of three hundred times the average daily wage or salary which he shall have earned in such employment during Sub-secthe days when so employed."

tion 4, of section 5, of article 2, is as follows: "The average weekly wages of any employe shall be one fifty-second part of his average annual earnings." The claimant's contention is due to the fact that he works seven days a week, and the legislature no doubt had in mind, when prescribing the above rule of computing compensation, that the workmen would not work on Sundays. No doubt an employe that works in an occupation that requires Sunday labor should have his Sunday wages taken into consideration in arriving at his compensation, but the Act specifically provides that his annual wage shall be 300 times his average daily wage, and that his weekly wage shall be one fifty-second of his annual wage. It is Agreed, That the claimant's daily wage was $3.20, multiplied by 300 would make his annual wage $960.00, one fifty-second would be $18.46 a week, and fifty per cent of his weekly wage would be $9.23, the amount he would be entitled to as compensation. The Commission is therefore of the opinion that $9.23 represents the sum he is entitled to as compensation, and an award will be made accordingly.

Jackson and Blessing, Commissioners, concur,

Charles D. Gunn, claimant, v. S. J. Wick, re

spondent. Fidelity and Deposit Company of Maryland, insurance carrier. Compensation awarded to claimant. Opinion by McDonald.

SYLLABUS:

Claimant, while in the employ of the respond ent and in the course of his employment, was injured on the 1st day of October, 1915, and as a result of said injury two phalanges of his index finger were amputated. At the time of the injury claimant was not using a guard furnished by his employer. The insurance carrier

contends that under the provisions of section 1, article 2, of the Workmen's Compensation Act, which is in part as follows: "Every employer subject to the provisions of this Act shall pay, or provide as required by this Act, compensation according to the schedules of this article, for the disability of his employes resulting from an accidental personal injury sustained by the employe arising out of and in the course of his employment, without regard to fault as a cause of such injury, except** where the injury results directly from the wilful failure of the injured employe to use a guard or protection against accident furnished for his use, pursuant to any statute or by order of the State Labor Commissioner, ***", and the provisions

of section 3746, of the Revised Laws of 1910, which is in part as follows: All machines shall be provided with loose pulleys, and all vats, pans, planers, cogs, gearing, belting, shafting, set screws and machinery of every description shall be properly guarded' the claimant is not entitled to recover. The testimony being examined, the Commission finds that the machine was not properly guarded.

Held, That the claimant is entitled to compensation for a period of thirty-five weeks at Ten Dollars ($10.00) per week for the loss of two phalanges of his index finger.

The opinion in part says: The undisputed testimony develops that claimant had been employed for a period of about four days; that until within a few minutes of the accident he was engaged in running a large quantity of lumber through the edger for the Stiles Construction Company. The machine was a combination planer and joiner, known as a Crescent.'' A guard was ordered with the machine and the guard furnished was what is known as a stationary guard, being a steel plate about five or six inches long by four inches wide, and is screwed on the cutting table, running from the outer edge to the edge of the lumber. The place for the lumber is regulated by a guide rail which is located on the back side of the machine and can be moved to fit any ordinary piece of lumber. The guard thus covers all portions of the cutting head, except the part where the lumber passes over the knives. When the claimant went to work the guard was unscrewed and hanging on the side of the machine, not in use. There is testimony to the effect that to use the guard while doing the work for the Stile Construction Company, the operator would have had to work at arm's length and would be a much harder, more difficult and slower After finishing the Stiles job process. he had to cut the groove off one edge of a door, and as it only took a minute to do it he did not go to the trouble of re

adjusting the guard, but worked with the knife exposed, and as a result lost his finger. Claimant admits if he had placed the guard on the machine the accident would not have happened. The legal question, therefore, presented is: Did the claimant's injury result directly from the willful failure of the injured employe to use a guard or protection furnished for his use pursuant to any staute? The statute simply provides that such a machine shall be properly guarded. From the testimony the Commission cannot say this machine was properly guarded.

If employers will comply with the statute and

orders of the State Labor Commissioner, the Industrial Commission will not hesitate to deny an award to any employe who willfully refuses to use such guard, but to defeat an award for compensation the employer must bring himself within the terms of the Act and properly guard his machinery.

An award will, therefore, be made of Ten Dollars ($10.00) a week for thirty-five weeks.

Jackson and Blessing, Commissioners, concur.

STATE NOT LIABLE FOR COURT COSTS

According to an opinion from the attorney general's office, the state cannot be held liable for court costs, without a specific statute giving such expressed authority. The opinion was rendered to J. C. Martin, court clerk of Beckham county. The inquiry was made by the court clerk if the state is liable for costs in foreclosure cases where the state is the plaintiff. It was not contended by the attorney general that there is any statute specifying that the state is not liable for court costs, but it was the opinion that in the absence of a statute expressly requiring the state to be so responsible for costs, that it could not be held liable. Following the opinion said:

"Of course, it follows that if the state is not liable for costs in the absence of a statute so providing, it would not be required to make We an advanced deposit to secure the same. do not wish to be contrary about this matter, but we feel that it would be a hardship on the state to have to make an advance cost deposit in the many cases pending in the different counties, and we therefore, trust that you will aid us by co-operating with us in that matter."

Proceedings have been begun in the Nebraska supreme court to test the constitutionality of a law providing for the teaching of the German language in the public schools.

The law generally had been regarded as a dead letter, with the outbreak of the European war interest in it was revived and the Nebraska City school board was asked to enforce it. The board refused, and on mandamus suit the district court upheld the law. The board in turn appealed to the higher

court.

SOME NEW LAWS.

Since our last issue a special session of the legislature has been in session in Oklahoma, and at this writing it is possible to enumerate a new usury law, a new gross production tax law, the statewide registration act, and several amendments to the Highway Law as the more important of the bills passed, while the submission of a substitute for the "Grandfather Law" was the most important of all the Constitutional amendments proposed, although the resolution which passed the Senate providing for a graduated land tax shared with it the public interest. The latter proposition, however, was defeated in the House.

On the usury law there will be a variety of opinions based largely on the point of view. The bankers and money loaners whose business will be adversely affected by the law will naturally be its severest critics and their numbers will doubtless be supplemented by the addition of other bankers and business men who are not now offenders against the anti-usury statutes, but who nevertheless resent any legislation calculated to restrict or control the banking or money loaning business. In the end, however, we believe that the law will be accepted as a fair compromise between the widespread radical demand for criminal statutes against extortion under the guise of interest charges, and the extreme conservative demand that the lid be taken entirely off of all classes of financial transactions and that the law of supply and demand should constitute the only regulation of interest charges.

On the new gross production tax law there will probably be no difference of opinion as to its merits and the justice and equity of its provisions over the old law, except as to the one point of the increased rate. Generally speaking, the oil interests were satisfied with the two per cent rate of the old law (or at least they professed to be when it became morally certain that the legislatiure would fix the new rate at three per cent) and it is no less certain that there was a constantly growing number of Oklahoma citizens who believe that four or five per cent on gross production in lieu of all other taxes against leases and equipment as well as production was more nearly equitable, compared with the taxes paid by banks and railroads, merchandise stocks, and farm property. This, then, leaves the rate as the only bone of contention between the producers on the one hand, and the citizenship of the State on the other, since the question of paying back to the counties one per cent of the tax has been adjusted, its distribution provided for, and the producers have been relieved of the burden of paying the tax on the royalty interest,-which was one of the manifest inequities of the old law,and the provision which was responsible for most of the protests in the payment of the two per cent tax. We do not believe that the overwhelming majority of other tax payers want the oil interests to pay more than their equitable share of the public burdens, and when protests and law suits are swept aside,

and the taxes from this source are finally covered intc the county and State treasuries as provided by law, the oil men will find a growing public sentiment in their favor, and in favor of a reduction of this rate by the next legislature if they are able to prove that the tax is even by a fraction of one per cent unjust or unfair when compared with the average rate of taxation on other property or industries within the State. Nothing will be gained by unreasonable complaint against the law. The facts to establish that it is just or unjust can be readily obtained when once the tax is paid and the State's income from this source can be approximated, and when proof is offered that the rate is higher than that paid by other industries, the legislature will be as prompt to act in their relief as was the special session to pass a joint resolution, rebating the amount of tax paid on the royalty interest.

The registration act was a political measure made necessary in the view of the majority party by the United States Supreme Court decision on the "Grandfather Law. It was naturally opposed by all the representatives of the minority parties and some alleged members of the majority party who placed their personal political ambitions above the interests of the party of which they purported to be members and in whose caucuses they had participated. This Journal is neutral politically, but is willing to concede that the action of the majority party in this case will be upheld or condemned largely from the partisan viewpoint.

The amendments to the State Highway Law -and there were several of them-were intended to make the law more flexible and practical in its application to the conditions that are found to exist in various sections of the State, and in the State at large, and in future issues of the Journal these amendments will be taken up separately and given more extended discussion.

Judged by the record of past sessions of the legislature, the special session working under the limitations which the constitution provides for, accomplished much in the way of constructive and remedial legislation, and while various acts will meet with both political and sectional criticism it is reasonable to assume that a majority of the citizenship of the State will accept the results as fully justifying the calling of the session and the expense of the meeting.

OREGON BLUE LAW REVIVED

Oregon's Sunday closing law enacted in 1864 and which for many years has languished, has been declared constitutional and effective by Judge E. Wolverton of the federal district court at Portland. The law prohibits the transaction of business on Sunday by mercantile establishments, theaters, grocery stores, billiard halls and other places of amusement.

The only concerns permitted to do business on Sunday are bakeries, hotels and undertaking establishments.