Gambar halaman

$10.40, was issued for stamps bought and the following manner: A courthouse shall paid for by Painter as sheriff between Octo- be erected therewith at such county seat at ber 3, 1902, and October 31, 1902; that war- cost of not exceeding ten thousand dollars, rant No. 46, for $985.80, was issued to Paint- and the residue shall be applied to the coner for criminal work done by him as sheriff struction of bridges, roads and such other of said county from January 1, 1902, to March | public improvements as the Secretary of the 31, 1902; that warrant No. 47, for $1,687.90, Interior shall deem appropriate, including was issued to Painter for criminal work done the payment of all expenses actually necesby him as sheriff of said county during the sary to the maintenance of the county govquarter ending June 30, 1902; that said funds ernment until the time for collecting county in the hands of the county treasurer were taxes in the calendar year next succeeding not liable for any of said indebtedness, but the time of the opening. No indebtedness that the said indebtedness was payable, if

of any character shall be contracted or inat all, out of the funds derived from the sale

curred by any of suid counties prior to the of lots in the town of Lawton, which fund

time for collecting county taxes in the caleilwas in the hands of the Secretary of the dar year next succeeding the opening, exceptInterior, and had never been in the hands ing where the same shall have been authorof the county treasurer or subject to the ized by the Secretary of the Interior." In order of the board of county commissioners; the interpretation of statutes, courts must that there was at that time in the hands of find the meaning and intent in the language the Secretary of the Interior a sufficient bal- of the act itself, where there is no repugnanacce of said town lot sale fund to pay all

cy or uncertainty. This statute seems clear. charges against the same, and to more than

Congress knew what it wanted to accomplish, pay plaintiff's claims. To this return to the

and said so; and we have no right to attempt alternative writ the plaintiff filed a general

to read into it some other purpose or meandenial. The alternative writ and the return

ing. Congress recognized the fact that unconstitute the pleadings in the case, and the

der the laws of Oklahoma, which were then reply should be treated as a demurrer to

operative in these Indian reservations, counthe return. The facts are admitted in the

ty governments would be put in operation as argument to be as alleged in the writ and

soon as the country was opened to settle return, and the court so found.

ment; and by section 2 of the act. it was proThe facts presented call for the applica

vided: “The Governor of the territory shall tion and interpretation of the act of Con

appoint and commission for each county all gress of March 3, 1901, 31 Stat. 1093, 1091, c.

county and township officers made necessary 816. This act provides for the reservation

by the laws of the territory of Oklahoma, of lands in each county for a county seat, the

who shall hold their respective offices until inanner of disposal of the town lots, and the officers elected by the people at the genthe disposition to be made of the funds aris

eral election next following the opening shall ing from such sale. It may be stated gen

hove qualified.” Congress knew that these erally that the power of Congress to dispose

officers so appointed would have to be paid, of the public lands, as well as to legislate di

and the funds for the maintenance of a counrectly for the territories, is unquestioned. In

ty government would have to be provided. any case, when Congress legislates upon any

By the laws of Oklahoma no taxes wolid be subject over which it has jurisdiction, its laws

available for the payment of current expenses supersede all laws upon the same subject and

until December of the next year following serving the same purposes enacted by any

the opening. The country was opened in of its subordinate dependencies. The terri

August, after the time for the assessment of tcry of Oklahoma possessed the legislative property for that year had elapsed. The first power to create county offices, to fix their

assessment that could be made under our compensation, and provide the manner of

laws would be in the spring of the following their payment. Congress possessed the same

year, and the first installment of taxes from powers. Yet there could be no conflict of

this assessment would be payable December authority or of laws. The superior includes

15, 1902, and until this date Congress made the inferior. Its laws are paramount, and provision for maintaining county governwhen the superior legislates, and makes spe

ments and provided the funds and manner cific provision for the payment of county of their disbursement. In addition to proofficers, and provides the fund from which

viding a fund for the payment of all the they are to be paid, the laws of the territory

necessary expenses incident to the mainteupon the same subject are suspended and in

nance and support of the county government operative, and the laws of Congress must during a given period, a prohibition was also prevail. The portion of the act in question imposed upon the counties. It was provided : is as follows: "The receipts froin the sale

"No indebtedness of any character shall be of these lots in the respective county seats contracted or incurred by any of said counsnall, after deducting the expenses incident ties prior to the time for collecting county to the surveying, subdividing, platting and taxes in the calendar year next succeeding selling of the same, be disposed of under the the opening, excepting where the same shall direction of the Secretary of the Interior in have been authorized by the Secretary of the Interior.” This was a wise and commend- ; inal laws and the prosecution of criminals. able act.

The return set up a complete defense to the It has been suggested in the argument that allegations of the writ, and, being found this inhibition relates only to contractual true, the peremptory writ was properly reobligations and does not affect imposed obli- fused. gations or liabilities; that the salary of the The judgment of the district court is afsheriff was fixed by the laws of Oklahoma, firmed, at the costs of the plaintiff in error. and the law required him to be paid cer- All the Justices concur, except GILLETTE, tain fees by the county; and that it was not J., who tried the case below, not sitting, and the intention of Congress to take from the IRWIN, J., absent. counties the authority to pay this class of obligations. The language used by Congress will not adinit of this contention. The law

(19 Okl. 590) says "contracted or incurred.” The word LONG-BELL LUMBER CO. v. NEWELL contracted" includes all of one class, and

et al. the word "incurred," to be given any mean- (Supreme Court of Oklahoma. Sept. 5, 1907.) ing whatever, inust be held to include another APPEAL-DISMISSAL-SCURRILOUS BRIEF. class. There are only two classes of county

Where the plaintiff in error files what is obligations, contractual and imposed, and evi

designated as a brief in support of his assign

ment of error, and in such written argument dently Congress meant to include both class

makes an abusive, wanton, insulting, and scures. The word "incurred" is defined by Web- rilous assault upon the judgment appealed from, ster as "to become liable or subject to; to

and which is an inexcusable and unwarranted

reflection upon the trial judge, the so-called brief render liable or subject to." Black says: will be stricken from the files, the case treated "Men contract debts. They incur liabilities. i as if no brief had been filed, and the appeal In the one case, they act affirmatively; in

dismissed for failure to comply with the rules

of the court. the other, the liability is incurred or cast

[Ed. Note. For cases in point, see Cent. Dig. upon them by operation of law. 'Incur' means

vol. 3, Appeal and Error, 8 3102.] something beyond contracts, something not

(Syllabus by the Court.) embraced in the word 'debt.'” In Scott v. Tyler, 14 Barb. (N. Y.) 202, "incur” is held to

Error from District Court. Garfield Counmean "to become liable for." Flanagan v.

ty; before Justice F. E. Gillette. Baltimore & O. R. Co., 83 Iowa, 639, 50 N.

Action by Albert F. Newell and Frank M. W. 60: "To become liable for." In Beekman Ross against the Long-Bell Lumber Comv. Van Dolsen, 24 N. Y. Supp. 414, 70 Hun, pany. Judgment for plaintiffs. Defendant 288: “To become liable for." In Deyo v. brings error. Dismissed. Stewart, 4 Denio (N. Y.) 101: "Brought on

W. R. Cowley, L. L. Cowley, and E. E. himself.” In Ashe v. Young, 68 Tex, 123, 3 Chesney, for plaintiff in error. Robberts & S. W. 451: "Brought on, occasioned, or Curran and W. S. Denton, for defendants in caused." Hence it is apparent that the word

error. “incurred” means more and embraces a different class of liabilities or obligations from PER CURIAM. This cause was tried in these contracted. It means the indebtedness the district court of Garfield county before imposed upon the county by salaries of coun- an associate justice of this court sitting as ty officers and other required and necessary a district judge. During an active service expenses, all of which, to be a charge against

of over five years upon the Supreme and disthe lot sale fund, must be authorized or ap- trict bench the distinguished justice has esproved by the Secretary of the Interior. To tablished a record for integrity, fairness, and use a phrase somewhat familiar in these impartiality which is unassailable, and which days, Congress imposed "departmental gor- will endure to his credit long after his deernment” upon these new counties until such tractors will have passed into oblivion. The time as the revenues from the taxes levied plaintiff in error is the Long-Bell Lumber upon their own property were available for

Company, a foreign corporation, which comes their expenses, and until that time no in

into this jurisdiction by comity and sufdebtedness could be created by the county ferance, and, while seeking at the hands of officers or imposed by the laws of Oklahoma į this court relief from an alleged erroneous until such time as the prohibition in the act judgment, overlooks the common courtesy of Congress expired by limitation, when the and amenities due from a guest in the house laws of Oklahoma become operative and the of his host, and makes an unwarranted, wan"embryo qu: rantine" was raised.

ton, and vicious attack upon a member of his The services for which Painter filed his host's family. The brief filed by plaintiff in claim should have been presented to the error. after citing a principle contended for, Secretary of the Interior, and his authority contains this statement: "If this is the law, obtained to incur the liability against the and, indeed, it, beyond even cavil, is the law, funds in his hands, and payment enforced then the judgment in the case at bar simply against the special fund set apart for this cannot remain, is everywhere unsupported, special purpose. It was a part of the expense is vicious, virulent with venom, through and of maintaining the county government which through, infected and infectious, fit for that is charged with the enforcement of the crim- antidote for that bane spoken of by Justice

Swayne In Wood v. Carpenter, 101 U. S. 135, 25 L. Ed. 808.” Such insolent, discourteous, and uncalled-for denunciations of a judgment of a court of high standing. and necessarily reflecting upon the judge who rendered it, can have no place in the records of a court of justice, and not only calls for severe rebuke, but exemplary punishment. And this stranger, a guest in the house of a friend, guilty of such wanton disregard of decency, must submit to the customary treatment usual in such cases—that of being unceremoniously ejected from the household whose bospitality and generosity it bas for so long enjoyed and preyed upon, but at last outraged.

The case is one where the defendants in error obtained a judgment against the plaintiff in error for a fraud alleged to have been committed through its attorney and agent. The trial court found that the corporation had a judgment against one Payne, which was a lien upon a lot in the city of Enid. The lot was worth considerably more than the judgment. It was sold at sheriff's sale, and bid in by the corporation, and its bid assigned to the M. E. Church South, and the church paid the amount of the bid. While proceedings were pending for confirmation of the sale, the agent sold the property to the defendants in error, who paid off the judgment held by the company against Payne, paid Payne the balance of the purchase money, and obtained a deed for the property. The agent represented that the church had paid nothing and had no interest in the property They relied on his representations, and paid $800 on the strength of them. In the meantime the corporation was resisting the claim of the church, but was defeated, and the sale was ordered confirmed, and the sheriff directed to convey the property to the church. The defendants in error got nothing. The court found that the corporation received and accepted the money paid by the defendants in error to their agent, thereby ratifying his acts and binding itself by bis representations made in order to induce the payment to him of said money. The judgment in this case is to reimburse the defendants in error for the amount of money paid by them to the company for this property.

The company was charged with fraud and bad faith. The court found it guilty. It denied the authority of its agent, while holding onto the fruits of his deceit. It is in no position to make wanton and vicious assaults upon our courts. It is entitled to and will receive all the rights and privileges of a citizen of our territory in the courts of our territory; but it must submit to the same rules and observe the same respect for our courts and laws as is due froin our own citizens. A foreign corporation dealing in luinher and building materials and occupying one of the most fruitful and profitable fields ever opened to commerce, enjoying an extensive trade with our builders and consumers,

and diligent in its efforts to extend its field of operations, should be the last person to make unprovoked assaults upon the courts. In these days of the aggressions of combined wealth and the importunities of organized labor, the courts are the powerful civic regulators, which stand between the two great antagonistic forces in our social and political organization, and, uninfluenced by the one and unawed by the other, compel obedience to law and deal out justice evenly and justly, and are entitled to the respect and support of all well-disposed citizens. An examination of this entire record discloses absolutely nothing to inspire, provoke, or excuse any criticism of the trial court in the proceedings had before it. There is nothing in the judg. ment to condemn

This foreign corporation also comes into our court by foreign counsel, who has been permitted to appear by courtesy, and, forgetting his duty, is guilty of discourteous and unprofessional conduct in placing such a brief on file. The matter set out in the brief of plaintiff in error is improper, unwarranted, inexcusable, and reprehensible. This court cannot recognize a document containing such matters as a brief, or the filing of such a compliance with the rule requiring a brief.

The so-called brief is stricken from the record and ordered removed from the files; and, for the reason that the plaintiff in error has failed to file a brief as required by the rules of this court, the appeal is dismissed, at the costs of the plaintiff in error.

(19 Okl. 419) RICE et al. V. HAMMONDS, Sheriff. (Supreme Court of Oklahoma. Sept. 5, 1907.) TAXATION PROPERTY SUBJECT MILITARY RESERVATIONS.

The taxing officers of Comanche county, Okl., have the lawful right to levy and collect taxes on personal property belonging to private individuals and located on the Ft. Sill military reservation, which is wholly within such county and constitutes a part thereof. The legislative power of the territory extends to all rightful subjects of legislation, and the only property which Congress has prohibited the territory from taxing is the property of the United States.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 45, Taxation, $ 51.)

(Syllabus by the Court.)

Error from District Court, Comanche County; before Justice Frank E. Gillette.

Action by T. R. Rice and W. H. Quinette against C. C. Hammonds, sheriff. Judgment

. for defendant, and plaintiffs bring error. Affirmed.

Parmenter & Myers, for plaintiffs in error. S. M. Cunningham and Frank P. Cease, for defendant in error.

[ocr errors]

BURWELL, J. F. R. Rice and W. H. Quinette were partners in the cattle business; the firm name being Rice & Quinette. They owned quite a lot of cattle, which were lo

cated on the Ft. Sill military reservation, in & Cattle Company, 73 Fed. 60, 19 C. C. A. 374; Comanche county, Okl. The taxing officers Foster v. Pryor, 189 U. S. 325, 23 Sup. Ct. assessed these cattle for territorial, county, 519, 17 L. Ed. 835; Atchison, T. & S. F. R. Co. township and school district purposes. The v. Bryan, 11 Okl. 337, 66 Pac. 348. See, also, owners of the cattle commenced this action Ft. Leavenworth R. Co. v. Rowe, 114 U. S. against the sheriff of Comanche county (a 523, 5 Sup. Ct. 995, 29 L. El. 264. tax warrant having been placed in his hands), Under the laws of the territory of Oklapraying that he be enjoined from levying loma the property in question is subject such tax warrant upon the property of the to taxation in Comanche county. The propplaintiffs. On a hearing for a temporary in- erty of the United States located on this junction the court enjoined the collection of reservation or anywhere else in the territory the district school tax on the ground that cannot be taxed. The territory is expressly none of the plaintiffs' property had been lo- prohibited as to such taxation by the organic cated within such district, and denied the act. But should Congress exclude the terriinjunction as to the other taxes.

tory from taxing the property of the plaintiff The sole contention of the plaintiffs is that, simply because it is located on this reservainasmuch as these cattle were located on a tion? It did not intend to do so, nor has it military reservation of the United States, done so. Counsel have overlooked the fact even though such reservation is within an that Congress has not only exclusive legisorganized county of Oklahoma, they cannot lative control over military reservations in be taxed un ler the territorial laws, asserting the territories, but it has legislative control that a military reservation is under the sole of the territories themselves. The Ft. Sill legislative control of the United States. We military reservation is within the organized have read counsel's brief, and while it is true county of Comanche and constitutes a part that, as long as Oklahoma remains a terri- thereof. The persons and property within tory, Congress may legislate as to all mat- such reservation have the protection of the ters pertaining to this reservation and ex- laws of the territory, and it is only equitable clude the territorial authorities from exercis- that the property therein not belonging to ing any control thereof, it has not done so. the United States should pay a part of the By section 6 of the organic act of the terri- expenses of the same. If Congress had intory of Oklahoma, it is provided: "That the tended that the property on this or other legislative power of the territory shall ex

reservations in the territory should not be tend to all rightful subjects of legislation,

taxed, it would have so declared, as it did not inconsistent with the Constitution and

with reference to property of the United laws of the United States, but no law shall States and property belonging to certain Inbe passed interfering with the primary dis

dians. As the property in question was posal of the soil, no tax shall be imposed on

within an organized township of an organthe property of the United States, nor shall

ized county of the territory, the power exists the lands and other property of nonresidents

to exact taxes for all three purposes, to wit, be taxed higher than the lands or other prop- | territorial, county, and township. erty of residents, nor shall any law be pass

The judgment of the lower court is affirmed impairing the right of private property,

ed. All of the Justices concurring, except nor shall any unequal discrimination be made

GILLETTE, J., who presided at the trial bein taxing different kinds of property, but all

low, not sitting, and IRWIN, J., absent. property subject to taxation shall be taxed in

Costs taxed to appellant. proportion to its value.” Under this express grant of power from Congress, the territory may subject all property within the territory

(19 Okl. 375) to taxation except the property of the Unit

BOARD OF COURS OF DAY COUNTY v. ed States. It is immaterial where the prop

STATE OF KANSAS. erty is located. If it is not the property of the United States, the Legislature may re

(Supreme Court of Oklahoma. Sept. 5, 1907.) quire it to bear its just proportion of the

1. EVIDENCE-JUDICIAL NOTICE. burdens of government. A military reserva

Courts of record in any county will take

judicial notice of the county seat of such coun: tion in a territory is no more under the legis- ty, and, if the seat of public business in any lative control of Congress than is an Indian county is the county seat de facto, such courts reservation; and it has been expressly held

will take notice thereof, and the validity of the

proceedings of such court transacted at the by the Supreme Court of the United States

county seat de facto cannot thereafter be questhat the territory may tax property on an tioned in a collateral proceeding. Indian reservation, even though it is not [Ed. Yote.-For cases in point, see Cent. Dig. located within an organized county, but only

vol. 20, Evidence, ş 31.] attached to an organized county for judicial | 2. Courts—CORRECTIONS or


PRO Tryc ORDER. purposes. Thomas v. Guy, 109 U. S. 261, 18

A person interested in the proceedings of a Sup. Ct. 310, 42 L. Ed. 710; Polson r. Purcell,

court of record may appear before the court at 4 Okl. 93, 46 Pac. 578; Wagoner v. Evans, any time and ask to have the journal of the 170 U. S. 588, 18 Sup. Ct. 730, 12 L. Ed.

court made correct and complete as of the date

such record should have been made, and the 1151: Steil v. Territory, 1 Okl. 197, 16 Pac.

court should entertain and hear such motion up1117; Truscott, Co. Treas., v. Hurlbut Land

on notice given to those adversely interested. Where the default was that of the court or its of the territory of Oklahoma to be held at officers, it is the duty of the court to make its Grand, Day county, Okl., for the issue of record complete at any subsequent date when the default is called to its attention without

county bonds, July 10, 1900, before the judge the formality of a motion.

of said court, executed certain judgment fund3. JUDGMENT-RES JUDICATA-Boxds–VALID ing bonds of said county, as more fully hereISSUE.

inafter appears, and the said bonds were Where a court of competent jurisdiction has determined the validity of the bonds involved

then and there signed by the duly qualified in a proceeding provided by the statute, and has and acting chairman of the board of county decreed that the bonds were valid obligations commissioners of said county, and the said and issued in strict conformity with the laws of bonds were then and there attested and signthe territory, and no objection or exception was taken therefrom, the decree and judgment of the

ed by the duly qualified and acting county court is final and conclusive upon all matters clerk of said court, and the said bonds were put directly in issue, tried, and determined in then and there signed by the duly qualified that proceeding Following Territory v. Hop- and acting judge of the district court of said kins, 9 Okl. 133, 59 Pac. 976. [Ed. Note. For cases in point, see Cent. Dig.

county, and were then and there duly attestvol. 30, Judgment, $ 1251.]

ed and signed by the duly qualified and act(Syllabus by the Court.)

ing deputy clerk of the district court of said

county. Error from District Court, Day County ;

"Thereafter the bonds so executed as aforebefore Justice J. L. Pancoast.

said were duly registered by the auditor of Action by the state of Kansas against the

the territory of Oklahoma, and said auditor board of county commissioners of Day coun

certified on the back of each bond aforesaid, ty. Judgment for plaintiff, and defendant

under the seal of his office, that the said brings error. Affirmed.

bonds were legal and regularly issued accord

ing to law. True copies of the said auditor's This action was originally commenced in certificate of registration and of the legality the district court of Day county, Okl., by and regularity of the issue of the bonds aforethe defendant in error filing therein its peti- said are hereinafter set out in Exhibits B and tion, which, with exhibits attached and re- C, attached hereto and made a part hereof. ferred to in the petition, is as follows: That the defendant issued the said judgment

“The state of Kansas, the plaintiff herein, funding bonds as aforesaid, and said bonds complains of the board of county commission- were made payable to bearer, and thereafter ers of Day county, the defendant herein, and

divers and certain of said bonds of said judg. for its causes of action against said defend- ment issue of July 10, 1900, aforesaid, more ant says: That the state of Kansas is one fully hereinafter set forth, were bought in of the states of the United States of Ameri

good faith in the open market by the loan ca, and was admitted into the Union on Jan

commissioner of the State Agricultural Coluary 29, 1861. That the defendant, the board lege of the state of Kansas as an investment of county commissioners of Day county, is for the endowment fund of said college, for the lawful executive and administrative body a valuable consideration; and out of an abunof Day county, Okl., and that said Day coun- dance of prudence and caution on the part ty was organized on or about —, 1902, of the said loan commissioner, before purchasand is now, and at all times hereinafter men- ing said bonds, the said loan commissioner retioned was, one of the duly organized coun- quired to be furnished to him a certified copy ties of the territory of Oklahoma. That by of all the papers on file in the office of the auvarious acts of Congress the state of Kansas, ditor of the territory of Oklahoma containing plaintiff herein, was granted large tracts of the history of the issue of said judgment fundland out of the public domain for the pur- ing bonds, and particularly showing the jourpose of creating a fund, to be known as the

nal entry of the judgment upon which this isagricultural college endowment fund of the

sue of bonds was based, and particularly showstate of Kansas, and providing that the said

ing the amount of said issue, and particularly fund realized from the sale of said lands showing the total outstanding in lebtedness should never be diminished, but should be

of said Day county, and particularly showperpetual, and the principal sum of the said

ing the assessed valuation of said Day counfund should be invested, and the interest mon- ty, which copy of all the papers on file as ey derived from such investments should be

aforesaid, in the office of the auditor afore· for the support of the Kansas State Agricul- said, was duly certified by the auditor of tural College. That, in pursuance of said Oklahoma under the seal of his office, a true acts of Congress, the state of Kansas has ac- copy of which is hereto attached, marked Ex('umulated a large fund, to wit, five hundred

hibit A, and made a part of this petition. thousand dollars, which is invested from time That the bonds of this judgment funding isto time in municipal bonds, and interest sue so purchased as aforesaid by the loan thereon is devoted to the support of said col- commissioner as aforesaid are bonds numlege. That the defendant, the board of coun- hered 11, 12, 13, 14, 15, and 16, for $1,000.00 ty commissioners of Day county, on July 10, each, and bond numbered 18 for $100.00, and 1900, in open court in the district court of all of said bonds so purchased as aforesaid said Day county, Okl., at the lawful sitting are issued as of the date of July 10, 1900, of said court, ordered by the Supreme Court and due July 10, 1910. A true copy of bond

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