plaintiff sued for the salary of the office 'during the time he was prevented from discharging his duties thereof pending the contest and the discharge thereof by De Long, a period of 463 days, and demanded judgment against the county for the per diem compensation provided by law which had been paid to De Long during his incumbency. The court, after stating in effect that their statutory provisions did not prevent application of the general rule, said: "With the admitted facts and the statutory provisions applicable thereto thus before us, the central question to be considered may be stated as follows: Where during the incumbency of a county officer de facto under color of title the county pays him the salary provided by law, can the officer de jure after obtaining possession of the office under final judgment of ouster maintain an action against the county for payment to himself of the salary for the same period? The decision of the courts upon this and cognate questions have developed a marked lack of harmony, and have been said by Mr. Freeman to be 'incapable of reconciliation.' The same distin lic policy accords with this view. Public offices are created in the interest and for the benefit of the public. Such, at least, is the theory, upon which statutes creating them are enacted and justified. Public and individual rights are, to great extent, protected and enforced through official agencies, and the state and individual citizens are interested in having official functions regularly and continuously discharged. The services of persons clothed with an official character are constantly needed. They are called upon to execute the processes of the court, and to perform a great variety of acts affecting the public and individuals. It is important that the public offices should be filled, and that at all times persons may be found ready and competent to exercise official powers and duties. If, on a controversy arising as to the right of an officer in possession, and upon notice that another claims the office, the public authorities could not pay the salary and compensation of the office to the de facto officer, except at the peril of paying it a second time if the title of the contestant should subsequently be established, it is easy to see that the public service would be great-guished annotator, while expressing his own ly embarrassed, and its efficiency impaired. Disbursing officers would not pay the salary until the contest was determined, and this in many cases would interfere with the discharge of official functions." A case based upon similar reasoning is found in Michel v. City of New Orleans, 32 La. Ann. 1094, where the court said: "Sound public policy dictates the wisdom and the necessity of paying | the salary of the officer in possession of the office and performing the functions required for the protection of society and the maintenance of peace and order; and, after this duty is performed, both law and equity forbid that the city or state be compelled to account for the same salary to any other party who may subsequently be decreed as the proper officer. We are clear that under our laws the right of a de jure officer in such case must be exercised against the intruder for the recovery of fees or of the salary of the office, and no recourse exists against the state or city for such salary as was paid to the de facto officer." In Brown v. Tama County, 122 Iowa, 746, 98 N. W. 562, 101 Am. St. Rep. 296, at the general election for 1899, Brown and De Long were opposing candidates for the office of superintendent of schools for Tama county. Brown was declared elected by the board of canvassers, whereupon De Long contested his election, which contest was pending on January 1, 1900. On January 2, 1900, the court of contest decided that De Long was elected to the office. Brown appealed to the district court, where said judgment was affirmed, but on further appeal to the Supreme Court the judgment of the district court and the court of contest was reversed. On being remanded to the district court, the case was again tried and final judgment entered in plaintiff's favor on June 21, 1901. In the instant case dissent from the rule, says: 'If, during the incumbency of an officer de facto, and before any judgment of ouster has been rendered against him, the city or county of which he is such an officer de facto pays him the salary of the office, a decided preponderance of authorities sustains the position that by means of such payments the right of the officer de jure to collect his salary from such city or county is lost.' See note to Andrews v. Portland, 79 Me. 484, 10 Atl. 458, 10 Am. St. Rep. 280, which cites Auditors v. Benoit, 20 Mich. 176, 4 Am. Rep. 382; State v. Clark, 52 Mo. 508; Smith v. Mayor, 37 N. Y. 518; Westberg v. City, 64 Mo. 493; Dolan v. Mayor, 68 N. Y. 274, 23 Am. Rep. 168; Steubenville v. Culp, 38 Ohio St. 23, 43 Am. Rep. 417; Shannon v. Portsmouth, 54 N. H. 183; Commissioners v. Anderson, 20 Kan. 298, 27 Am. Rep. 171. The only cases noted by Mr. Freeman as sustaining the opposing views are Andrews v. Portland, supra; Memphis v. Woodward, 12 Heisk. (Tenn.) 499, 27 Am. Rep. 750; Savage v. Pickard, 14 Lea (Tenn.) 46; People v. Smyth, 28 Cal. 21; Carroll v. Seibenthaler, 37 Cal. 193. It is to be said of several, if not all, of the cases last cited, that they present a materially different state of facts than we have here to pass upon. For instance, the plaintiff in the Andrews Case was duly appointed and qualified city marshal, and had been long in the actual possession of the office, when he was wrongfully excluded therefrom by the action of the city officers, after which he not only remained ready to perform, but offered to perform, the duties to which he had been appointed; and it was held that he was entitled to recover his salary for the full term, although the marshal de facto had also been paid." See, also, in support of this doctrine: Bradley v. City of Georgetown, 118 Ky. 735, 82 S. W. 303; Coughlin v. McElroy et al., 74 right attempted to deprive him of the emoluConn. 397, 50 Atl. 1025, 92 Am. St. Rep. 244; ments thereof by passing a resolution by said Lee v. Mayor and Council of Wilmington, 1 city council suspending him from said office Marv. (Del.) 65, 40 Atl. 663; Henderson v. pending the determination of certain charges Glynn, 2 Colo. App. 303, 30 Pac. 265; Samuels preferred against him to be investigated v. Town of Harrington, 43 Wash. 603, 86 by said city council; that said suspension Pac. 1071, 117 Am. St. Rep. 1075; Shaw v. was illegal and void for reasons stated; that County of Pima, 2 Ariz. 399, 18 Pac. 273; on final hearing of said charges said city Parker v. Board of Sup'rs, 4 Minn. 59 (Gil. council by majority voted on August 26, 1908, 30); State ex rel. Vail v. Clark, Auditor, 52 pretended to remove him from said office, Mo. 508; Gorman v. Com. of Boise Co., 1 and declared the same vacant, and had since Idaho, 655; State ex rel. McDonald v. Mayor prevented him from discharging the duties of Newark, 58 N. J. Law, 12, 32 Atl. 384; thereof, and from drawing his salary as such Demarest v. Mayor, etc., of New York, 147 officer, which said salary was $100 per month N. Y. 203, 41 N. E. 405; Wayne County v. as provided by ordinance of said city; that, Benoit, 20 Mich. 176, 4 Am. Rep. 382; although repeatedly demanded, said mayor State ex rel. Greely Co. v. Milne, 36 Neb. and city council refused to consider and al301, 54 N. W. 521, 19 L. R. A. 689, 38 Am. low same; that the city clerk and treasurer St. Rep. 724; Fuller v. Roberts Co., 9 S. D. had refused to issue a warrant to him for 216, 68 N. W. 308. Contra: State v. Carr, 129 such salary and to cash the same as requirInd. 44, 28 N. E. 88, 13 L. R. A. 177, 28 Am. ed by law; that $200 was thus due him as St. Rep. 163; Anderson v. Portland, 79 Me. salary for the months of August and Septem484, 10 Atl. 458, 10 Am. St. Rep. 280; Mem- ber and continues at the rate of $100 per phis v. Woodward, 12 Heisk. (Tenn.) 499; month until April 1, 1909, and prayed for the Tanner v. Edwards, 31 Utah, 80, 86 Pac. 765, court's writ of mandamus to compel said 120 Am. St. Rep. 919; Dorsey v. Smyth, 28 mayor and city council to permit him withCal. 21; Rasmussen v. Board of Co. Com., 8 out interference to exercise the duties of said Wyo. 277, 56 Pac. 1098, 45 L. R. A. 295. office, to recognize him as said officer, to conChristy v. City of Kingfisher, 13 Okl. 585, 76 sider, allow, and order issued to him a vouchPac. 135, and State ex rel. Lee v. Chaney et al. (Okl.) 102 Pac. 133, are not in conflict E. T. Gabbert commanding him to refrain er for $200 as salary aforesaid, and against with this opinion. In the former Christy was the duly elected marshal of the city of King- etc. In response to the alternative writ defrom usurping said office of chief of police, fisher at the April election of 1899 for a fendants set up the preferment of the charges term of two years. Acting pursuant to section 439, Wilson's Rev. & Ann. St. Okl. 1903, from office alleging that said charges were against relator and his trial and removal on complaint filed against him for corruption in office, he was suspended by the mayor favor of defendants, and Lee as relator aptrue. The trial court rendered judgment in without the privilege of being heard, and the mayor and city council passed a resolution pealed. In passing this court in effect folpurporting to remove him from office. Aft-lowed the Christy Case, and held section 439, erwards the mayor in the name of the city commenced action in mandamus to compel him to turn over to the city all of its property in his possession, and command him to desist from acting further as city marshal. To the alternative writ he filed his return setting up the facts, whereupon the district court granted a peremptory writ and taxed him with the cost. He appealed. In passing the Supreme Court held, in effect, that said section 439 was repugnant to section 9 of the organic act for reason stated in the opinion and for that reason held the action of the city council in removing him illegal and void, and in no way affected his right to retain possession of the office, and reversed and remanded the case, with directions to deny the writ. The latter was a suit in mandamus by the state on relation of R. C. Lee against the mayor and city council, city clerk, and city treasurer of McAlester and E. T. Gabbert. Lee in his petition alleged, in substance, that he was the duly elected chief of police of said city, and had qualified and discharged his duties as such from April 8, 1908, to July 27, 1908; that upon the date last mentioned said Wilson's Rev. & Ann. St. Okl. 1903, to be repugnant to section 9 of the organic act, and for that reason was not extended to and did not remain in force in the state of Oklahoma by virtue of section 2 of the Schedule to the Constitution, and for that reason Lee held that as relator was illegally deprived of his of fice, and reversed and remanded the case with instructions to proceed in accordance with that opinion. In neither case was the question involved in this case in issue or decided by the court. It follows that, as the claim sought to be enforced was illegal, the city council was without power to authorize its payment, and plaintiff in error right in refusing to sign the warrant therefor. In James v. City of Seattle et al., 22 Wash. 654, 62 Pac. 84, 79 Am. St. Rep. 957, the city council of that city passed an ordinance providing in substance for the appointment of a special committee to visit other cities for the purpose of securing information upon the subject of waterworks, street paving, lighting, etc. Appellant, with other members of the city council, was appointed thereon, and visited some of said cities for that purpose and made necessary expenditures for his Error from District Court, Pittsburg County; P. B. Cole, Judge. Action by the Incorporated Town of Haieyville and others against the Incorporated Town of Hartshorne and others. Judgment for plaintiffs, and defendants bring error. Modified and affirmed. with the secretary of the auditing committee his claim against the city for said expenditure. It was duly audited and reported to the council and approved, and an ordinance adopted directing a warrant to be drawn for its payment, with others, and appropriating money from the general fund to pay the same. The warrant was drawn in his favor and signed by the mayor. Parry, city compants in error, the incorporated town of troller, refused to countersign the same, and defendant city refused to deliver it to appellant. Suit was brought by him to procure a peremptory writ of mandate to compel respondent Parry, as city comptroller, to countersign and the city to deliver to plaintiff the warrant. Respondent demurred to the affidavit for the writ on the ground that he failed to state facts sufficient to constitute a cause of action. The demurrer was sustained, and plaintiff appealed. It was there urged, as in this case, that the comptroller as a ministerial officer had no discretion in the discharge of his duties, and that the city charter provided that he shall countersign all warrants upon the treasurer. The court in affirming the judgment of the lower court held that the charge did not constitute a valid claim against the city, and for that reason the council was without power to authorize its payment, and said: "Where the council is without power to authorize the payment of the claim, the officer may properly refuse to countersign the warrant directing the payment of such claim." To the same effect is Van Akin v. Dunn, County Treasurer, 117 Mich. 421, 75 N. W. 938, where the court said: "The writ of mandamus is a discretionary writ, and, while it may issue where there is a clear legal right, a court should always refuse it where the record shows the injustice of the plaintiff's claim." We are therefore of the opinion that the lower court erred in directing the writ to issue, and for that reason this cause is reversed and remanded. All the Justices concur. (24 Okl. 775) INCORPORATED TOWN OF HARTS- A town having been incorporated by vir tue of section 14. Act Cong. June 26, 1898 (Curtis Bill), c. 517, 30 Stat. 499, 500, and by order of court its boundaries having been fixed, when the townsite commission, by virtue of the agreements or treaties between the United States and the Choctaw and Chickasaw Na tions, laid out a townsite, not covering all the municipal area included by the order of the court fixing such limits, it has the effect of detaching from the original limits such portion of the incorporated area as was not included in the townsite limits. [Ed. Note. For other cases, see Public Lands, Dec. Dig. § 39.*] (Syllabus by the Court.) On the 31st day of July, 1905, the defendHaileyville, A. R. Johnson, Dan Freeman, and Carl Freeman, for themselves and others similarly situated, as plaintiffs, commenced this action against the incorporated town of Hartshorne, J. R. Berry, town marshal and ex officio tax collector, and C. R. Hunt, its mayor, in the United States Court for the Central District of the Indian Territory at South McAlester, by bill of complaint in equity, alleging that said towns of Hartshorne and Haileyville were incorporated, and that their incorporate boundaries, limits, and geographical jurisdiction had been fixed by the said court long prior to the time that the townsites of Hartshorne and Haileyville were established, fixed, and approved by the Secretary of the Interior; that the municipal corporate limits, lines, and boundaries of the said towns of Hartshorne and Haileyville do not agree and conform to the townsite limits of the said towns as established by the United States government, therein specifically setting out the discrepancy. The complainants were located within the townsite limits of Haileyville as established by the United States government, and also within the municipal corporate limits of the town of Hartshorne. The incorporated town of Hartshorne, through its city marshal and tax collector, notified the petitioners and all other persons residing within the said area that, unless all their taxes were paid, their property would be immediately advertised for sale to satisfy the requirements of the said town of Hartshorne for taxes. The relief prayed for was that the officers, marshal and tax collector of the town of Hartshorne, be restrained from in any manner collecting or attempting to collect any taxes of any kind or nature whatever from any person or persons residing on any of the said lands within the townsite of Haileyville, and from advertising, seizing, selling, or in any way attempting to sell, or in any way interfering with any of said property of any person or persons residing on or owning property on any of said lands, for any claim of taxes of any kind or nature whatsoever, until the further order of said court, and that the town authorities of said town of Hartshorne be required to eliminate from its corporate limits and boundaries the lands therein described, and that the same be annexed to, included, and made a part of the political and corporate limits of the town of Haileyville. On the same day a temporary injunction was issued as prayed for. Afterwards the plain For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes 104 P.-4 tiffs amended their petition, attaching thereto, and identifying the same as an exhibit, a copy of the order of the United States Court for the Central District of the Indian Territory at South McAlester, made and entered on the 25th day of October, 1902, by which the town of Haileyville was incorporated, and also a copy of the order of said court made and entered on the 1st day of March, 1900, incorporating the town of Hartshorne, was attached to said petition as an exhibit and made a part thereof. The petition for annexation was in due form, and signed by the required number of petitioners. On the 11th day of December, 1907, the defendants demurred to the plaintiffs' petition on the following groupds: (1) That the facts did not constitute a cause of action; (2) adequate remedy at law; (3) because special and adequate remedy at law exists; (4) misjoinder of parties plaintiff. On the 12th day of December, 1907, the demurrer was overruled. Defendants duly saving their exceptions and declining to plead further, judgment was rendered in favor of the plaintiffs. An appeal having been properly prosecuted from said judgment to this court, it is now here for review. This is a usual exercise of such authority. The townsite commission by virtue of the treaties was clothed with both legislative and administrative authority. By special legislative act, where there is no constitutional restriction, a portion of the area of a municipality may be detached. The provision of said treaties relative to townsites superseded section 15 of the Curtis bill, supra, which was complementary to section 14. Said section 15 provided that the townsite commission shall cause to be surveyed and laid out townsites where towns with a population of 200 or more were located, conforming to the existing survey, so far as may be, giving to each town such territory as may be required for its then needs and reasonable prospective growth. The treaty provision superseding section 15 was substantially the same. 30 Stat. p. 508. Section 14 excludes ali towns under 200 population from incorporation. Now, what is meant by the clause Brewer & Andrews, for plaintiffs in error. "giving to each town such territory as may be required for its present needs and reasonWILLIAMS, J. (after stating the facts as able prospective growth"? See section 15 of above). The question here for determination the Curtis bill. Was it intended to supersede is as to whether or not a town having been where not in conformity therewith the muincorporated by virtue of section 14, Act nicipal boundaries as fixed prior to that time Cong. June 26, 1898, known as the "Curtis under section 14? Such seems to be indicatBill" (chapter 517, 30 Stat. 499, 500), by ored by the clause in section 14 that "such city der of the district court, and the municipal or town government shall in no case have boundaries designated in such order, where any authority to impose upon or levy against the townsite commission by virtue of the any lands in said cities or towns any tax unagreements or treaties between the United til after title is secured from the tribe; but States and the Choctaw and Chickasaw all other property, including all improveTribes (30 Stat. 508, 509; Act July 1, 1902, ments on town lots, which for the purpose c. 1362, 32 Stat. 652, 653) laid out a town- of this act, shall be decreed personal propsite not covering all the area included by the erty, together with all occupations and priviorder of court fixing the municipal boundary, leges, shall be subject to taxation." It seems it had the effect of detaching from such muto have been contemplated that only such nicipal limits such portion of the incorporat- area should be included in such limits as ed area as was not included in the townsite should be platted into lots, streets, alleys, limits. Section 14, supra, applied to all the parks, etc., and, where the commission failFive Civilized Tribes, and said agreements or ed to include all of the municipal area in treaties only to the Choctaw and Chickasaw the townsites, it had the effect of a special Nations, but the treaties by express reserva- legislative act, detaching such territory from tion did not supersede said section 14 (30 said municipality. The Indian Territory was Stat. 500). The creation of municipalities is without a local Legislature to legislate to through the exercise of the power of the sov- meet the local needs. The noncitizen had ereignty. In the American states, except as taken up his abode there, and built towns otherwise provided in the state Constitutions, and cities, without any titles to the lots a municipality can be created only by a sov- and blocks upon which improvements had ereign act of legislation, either general or been placed. They had neither titles nor special, by (1) the state Legislature, (2) fed- local self-government. Section 14 was preeral Congress, or (3) territorial Legislature liminary to laying out the townsites for the when so empowered by act of Congress. vesting of titles in the parties having erectThe district court in incorporating such ed the improvements. Where the title was towns was not exercising legislative authori- divested out of the tribe into the individual, ty. Judicially it made an adjudication as to the lot would be subject to taxation, but it population, number of petitioners, and other would take time to consummate this purpose, facts required to be determined. Mansf. Dig. and consequently section 14 was enacted to A cause of action in favor of the owner of personalty, against a party wrongfully taking and converting the same to his use, is assignable. [Ed. Note. For other cases, see Assignments, Cent. Dig. § 45; Dec. Dig. § 24.*] 3. INSURANCE (§ 606*) - SUBROGATION-ACTIONS-PARTIES. In connection with the laying out of town-2. ASSIGNMENTS (§ 24*)-RIGHTS OF ACTIONsites, the balance of the lands other than CONVERSION OF PERSONALTY. that segregated for coal and asphalt deposits (30 Stat. pp. 505, 506, 507; 32 Stat. pp. 642, 643, 644) was to be allotted to the members of said tribes. The allotments were to be nontaxable while the title remained in the original allottee, not to exceed 21 years from the date of the patents; the homestead, one half of the allotment, inalienable for the same period; the surplus-the other halfalienable, one-fourth in one year, one-fourth in three years and the balance in five years from date of patents. 30 Stat. p. 507; 32 Stat. p. 643. It is not conceivable that Congress should have contemplated that any allotment under such a status should be inIcluded and retained within the boundaries of Where an insurance company pays to the assured a loss occasioned by the wrong of a third party, and the value of the property destroyed by the fire exceeds the amount paid by the insurance company, the assured may bring an action in his own name against the wrongdoer, and recover the full amount of the loss. [Ed. Note.-For other cases, see Insurance, Cent. Dig. § 1516; Dec. Dig. § 606.*] 4. ACTION (§ 53*)-LIABILITY-DIVISIBILITY. An action for a tort, or based upon a rise to but one liability. wrongful act, is single and indivisible, and gives [Ed. Note. For other cases, see Actions, Cent. Dig. §§ 565-592; Dec. Dig. § 53.*] TATION AND RESERVATION OF GROUNDS OF The question of misjoinder of parties, or of causes of action, or of defect of parties, must be properly taken advantage of in apt time in the trial court, or the same will be treated as waived in the Supreme Court. a municipality. The purpose was to permit the laying out of towns to meet the necessities occasioned by the white people congregating and settling and constructing improve-5. APPEAL AND ERROR (§§ 187, 193*)-PRESENments on lands belonging to the tribes. Titles to the lots on which such improvements had been placed were to be secured, and local government to preserve the peace, protect health, and promote education was to be afforded to such noncitizens. In the light of the history of the legislation, it was clearly the intention of Congress that the townsite boundaries (which were to include a reasonable prospective growth) were to control the municipal boundaries. A copy of the townsite plats were to be filed with the clerk of the court having jurisdiction to make the orders of incorporation, thus providing a complete record for municipal as well as other purposes. By the conclusion reached all the provisions relating to towns are harmonized, and the ends attained reasonably accord with the then local conditions. The judgment of the lower court, in so far as it restrained the officers of the town of Hartshorne from collecting taxes from the defendants in error residing in the detached territory, is without error. That part seeking to detach the area in controversy from the incorporated town of Hartshorne, and attaching it to the incorporated town of Haileyville, is erroneous, said territory having been so affected by the prior action of the townsite commission. Error, Cent. Dig. §§ 1184-1189, 1227; Dec. [Ed. Note.-For other cases, see Appeal and Dig. §§ 187, 193.*] (Syllabus by the Court.) Error from District Court, Woods County; J. L. Pancoast, Judge. Action by Franklin Shutt against the Kansas City, Mexico & Orient Railway Company. Judgment for plaintiff. Defendant brings error. Affirmed. On the 26th day of December, 1903, the defendant in error, Franklin Shutt, and the St. Paul Fire & Marine Insurance Company, as plaintiffs, began in the district court of Woods county, Okl. T., an action against the plaintiff in error, the Kansas City, Mexico & Orient Railway Company, as defendant, declaring on an action for damages on account of the alleged destruction of a barn, grain, and other property of said Franklin Shutt, by a fire negligently set out from a locomotive engine by the employés of said defendant. It is further alleged that on the 20th The judgment is accordingly modified and day of July, A. D. 1903, at the time said loss affirmed. All the Justices concur. (24 Okl. 96) KANSAS CITY, M. & O. RY. CO. v. SHUTT. (Supreme Court of Oklahoma. May 12, 1909.) 1. ASSIGNMENTS (§ 24*)-RIGHTS OF ACTION FOR TORT. A cause of action in favor of the owner of personalty, on account of the wrongful destruction of such property by fire, against the wrongdoer, is not assignable. [Ed. Note.-For other cases, see Assignments, Cent. Dig. §§ 42-46; Dec. Dig. $ 24.*] occurred, an insurance policy issued by said insurance company in favor of said Shutt was in force covering said property; that said insurance company adjusted said fire loss, and paid to said Shutt as a result of said adjustment the sum of $275.11 in settlement thereof; that said Shutt, in consideration of said sum of money paid in settlement of said fire loss, assigned and set over to said St. Paul Fire & Marine Insurance Company all right to recovery to the extent of such payment for the loss sustained thereby. On the 11th day of February, 1904, the de For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes |