Territory of Oklahoma Ex Rel. Overholser v. Baxter

Supreme Court of Oklahoma

Territory of Oklahoma Ex Rel. Overholser v. Baxter

1905 OK 130, 83 P. 709, 16 Okla. 359, 1905 Okla. LEXIS 134

CourtSupreme Court of Oklahoma

DecidedOctober 6, 1905

StatusPublished

Cited by8 cases

This text of 1905 OK 130 (Territory of Oklahoma Ex Rel. Overholser v. Baxter) is published on Counsel Stack Legal Research, covering Supreme Court of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Territory of Oklahoma Ex Rel. Overholser v. Baxter, 1905 OK 130, 83 P. 709, 16 Okla. 359, 1905 Okla. LEXIS 134 (Okla. 1905).

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Opinion

Opinion of the court by

HatNER, J.:

Upon the agreed statement of facts two questions are submitted to the court for determination. They are: (1). Whether bonds can be issued under the provision *362 of chapter 12 of the statutes of 1897, for purchasing a site for the erection of a jail; and (2), whether such bonds can be issued under the provisions of said act, and the proceeds expended for the purpose of purchasing permanent furnishings and fixtures for the completion of the court house, and placing the same in condition to be used for the transaction of the business of said county.

Section 1 of article 1 of chapter 12 of the Session Laws of Oklahoma of 1897, provides as follows:

“Whenevei- the board of county commissioners of any county in the Territory of Oklahoma considers it to be to the best interest of the county to purchase or erect a court house or jail, they shall have power to contract for the purchase or erection of same and to issue bonds in payment therefor.'’

The question here presented is: Does the power to erect a court house or jail include the implied power to purchase a site upon which to erect a jail, and to issue bonds in payment therefor? It seems to us the answer to this question is obvious. The power to erect a court house or jail implies the incidental power to purchase a site for such purpose. This implied power is essential and indispensable for the purpose of carrying into effect the express power conferred by the statute. To hold otherwise would seem to us to defeat the object and purpose of the statute.

In DeWitt v. San Francisco, 2 Cal. 289, it was held that the authority by act of the legislature to erect a court house and jail, would necessarily embrace the power to purchase the land on which to erect them In passing upon.this question, the. supreme court of California uses the following language :

*363 “Indeed it cannot seriously be doubted, that if the power to purchase any property had not been given in express words, yet that the authority to erect a court house or jail, would necessarily embrace the power to purchase the land on which to erect it, the land whereon to build it, being no less essential than the stone and material to build it with.”

In Shiedley et al. v. Lynch et al. 8 S. W. 434, the supreme court of Missouri held that the act of the legislature granting authority to the county court to erect court houses confers as a necessary incident the power to purchase land for the erection of such court houses if necessary.

Hence, we think the power conferred upon the board of county commissioners to erect a jail and to issue bonds in payment therefor, carries with it the implied and incidental power to purchase a site therefor; and this brings us to the second question: Does the power to erect a court house and jail imply the power to purchase permanent furnishings and fixtures for the completion of the court house or jail, to place them in condition to be used for the purpose for which they were erected ? It seems to us that the same reasoning applies to this question as to the other question. The power to erect a court house includes the power to purchase permanent furnishings and fixtures for the purpose of placing the court house in fit condition to be used for the purpose for which it was intended. We therefore hold that the express power to erect a jail and issue bonds in payment therefor, includes the implied poAver to purchase a site on which to erect such jail, and to issue bonds in payment therefor; and that the power to erect a court house and issue bonds in payment therefor, includes the necessary and indispensable power to purchase *364 fixtures and permanent furnishings for the completion of such court house to place the same in fit condition to be used for the transaction of public business, and to issue bonds in payment therefor.

Both questions must be answered in the affirmative, and a peremptory writ of mandamus will, therefore, issue.

All the Justices concurring.

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Opinion of the court by

HatNER, J.:

Upon the agreed statement of facts two questions are submitted to the court for determination. They are: (1). Whether bonds can be issued under the provision *362 of chapter 12 of the statutes of 1897, for purchasing a site for the erection of a jail; and (2), whether such bonds can be issued under the provisions of said act, and the proceeds expended for the purpose of purchasing permanent furnishings and fixtures for the completion of the court house, and placing the same in condition to be used for the transaction of the business of said county.

Section 1 of article 1 of chapter 12 of the Session Laws of Oklahoma of 1897, provides as follows:

“Whenevei- the board of county commissioners of any county in the Territory of Oklahoma considers it to be to the best interest of the county to purchase or erect a court house or jail, they shall have power to contract for the purchase or erection of same and to issue bonds in payment therefor.'’

The question here presented is: Does the power to erect a court house or jail include the implied power to purchase a site upon which to erect a jail, and to issue bonds in payment therefor? It seems to us the answer to this question is obvious. The power to erect a court house or jail implies the incidental power to purchase a site for such purpose. This implied power is essential and indispensable for the purpose of carrying into effect the express power conferred by the statute. To hold otherwise would seem to us to defeat the object and purpose of the statute.

In DeWitt v. San Francisco, 2 Cal. 289, it was held that the authority by act of the legislature to erect a court house and jail, would necessarily embrace the power to purchase the land on which to erect them In passing upon.this question, the. supreme court of California uses the following language :

*363 “Indeed it cannot seriously be doubted, that if the power to purchase any property had not been given in express words, yet that the authority to erect a court house or jail, would necessarily embrace the power to purchase the land on which to erect it, the land whereon to build it, being no less essential than the stone and material to build it with.”

In Shiedley et al. v. Lynch et al. 8 S. W. 434, the supreme court of Missouri held that the act of the legislature granting authority to the county court to erect court houses confers as a necessary incident the power to purchase land for the erection of such court houses if necessary.

Hence, we think the power conferred upon the board of county commissioners to erect a jail and to issue bonds in payment therefor, carries with it the implied and incidental power to purchase a site therefor; and this brings us to the second question: Does the power to erect a court house and jail imply the power to purchase permanent furnishings and fixtures for the completion of the court house or jail, to place them in condition to be used for the purpose for which they were erected ? It seems to us that the same reasoning applies to this question as to the other question. The power to erect a court house includes the power to purchase permanent furnishings and fixtures for the purpose of placing the court house in fit condition to be used for the purpose for which it was intended. We therefore hold that the express power to erect a jail and issue bonds in payment therefor, includes the implied poAver to purchase a site on which to erect such jail, and to issue bonds in payment therefor; and that the power to erect a court house and issue bonds in payment therefor, includes the necessary and indispensable power to purchase *364 fixtures and permanent furnishings for the completion of such court house to place the same in fit condition to be used for the transaction of public business, and to issue bonds in payment therefor.

Both questions must be answered in the affirmative, and a peremptory writ of mandamus will, therefore, issue.

All the Justices concurring.

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1905 OK 130, 83 P. 709, 16 Okla. 359, 1905 Okla. LEXIS 134, Counsel Stack Legal Research, https://law.counselstack.com/opinion/territory-of-oklahoma-ex-rel-overholser-v-baxter-okla-1905.

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