Winslow v. France, Treasurer

1908 OK 26, 94 P. 689, 20 Okla. 303, 1907 Okla. LEXIS 39

• Court: Supreme Court of Oklahoma
• Decided: March 6, 1908
• Docket: 31
• Status: Published

Opinion

Williams, C. J.

(after stating the facts as above). I,n this case the question is raised whether or not Woods county as now constituted succeeds to the property of Woods county as it existed under the territory of Oklahoma. This court will take judicial knowledge of the fact that Woods county comprises a certain-portion of said county as it existed under the territory of Oklahoma, and has the same county seat that it had under the territorial form of government. It is well settled that if a new county is created out of the territory of an old county, or if part of its territory or inhabitants is annexed to another county, unless some provision is made in the act respecting the property and existing liabilities of the old county that the old county owns all the public property except such as may be located within the detached territory, and is responsible for the debts contracted by it 'before the act of separation was passed. Laramie County v. Albany County et al., 92 U. S. 314, 23 L. E. 552; North Hempstead v. Hempstead, 2 Wend. (N. Y.) 134; Wade v. Richmond, 18 Grat. (Va.) 583; Higginbotham v. Commonwealth, 25 Grat. (Va.) 627; Watson v. Com missioners of Pamlico, 83 N. C. 17; 1 Dillon on Municipal Corporations, § 133.

If a portion of a territory is annexed, to another county, unless some provision is made in the act respecting the property and existing liabilities of the old county, the territory or inhabitants detached from the original county lose 'all claim to share in the property belonging to the county from which it was taken. Whilst it is thus relieved from the indebtedness resting upon the latter, yet it incurs the liabilities and shares in the property of the county to which it is attached, and is equally subject to assessment and taxation for that purpose. Commissioners of Currituck v. Commissioners of Dare, 79 N. C. 565; Watson v. Commissioners of Pamlico, 83 N. C. 17; Chicago, etc., R. R. v. Cuming County, 31 Neb. 374, 47 N. W. 1131; 1 Dillon on Municipal Corporations, § 133.

Woods county, as it exists under the state government, is the coiinty or municipality remaining after the detachment of the territory therefrom to constitute the counties of Alfalfa and Major, and by the annexing to said original county certain designated territory, detached from the county of Woodward as it was constituted under the territory of Oklahoma. If Woods county, as at present constituted, is the successor of the county of the same name as a body corporate and politic under the territorial form of government, then it succeeds to all the property of said county except such' as may be located within the boundaries of the detachgd territory.

Plaintiff in error insists that it is neither the successor of the old county,"nor is it entitled to receive the property of the’same, nor is it a county that existed under the territorial form of government. Section 30 of the Schedule of the Constitution is in haec verba:

“The Legislature shall provide by general, special, or local law for the equitable division of the property, assets and liabilities of any county existing in the territory of Oklahoma between such county and any new county or counties created, in whole or in part 'of the territory of such county.”

Section 38 of said Schedule is in haec verba:

“Should the First Session of the Legislature, provided by this Constitution, fail to provide for the division of the property, assets and liabilities of any county existing in the territory of Oklahoma between such county and any county or counties created in whole or i,n part out of such county, original jurisdiction is hereby con-ferr.ed upon the Supreme Court to make equitable division of such property, assets and liabilities, and for the purpose of hearing and receiving evidence and reporting findings of law and fact may appoint a special master in chancery in any such case.”

The county of Day was the only county existing under the territory of Oklahoma whose identity by name was lost in the formation of new counties of the state, ánd it is specifically provided in section 21 of the Schedule that “all property, real and personal, and credits, claims and ehoses in action, belonging to the county of Day at the time of the admission of the state into the Union, shall be vested in and become the property of the county of Ellis: Provided, the Legislature shall provide by general, special, or local law, for the equitable division of the'assets of Day county,, thus transferred to Ellis county, and the liabilities of Day county between the counties of Roger Mills and Ellis”; said proviso being substantially the same as section 20 of the Schedule, supra, which is general in its terms in its application to “any county existing in the territory of Oklahoma between such county and any new county or counties created in whole or in part out of the territory of such county.” ' Woods county, being an organized cqünty within the territory of Oklahoma, was a 'body corporate and politic under the laws of said territory. Volume 1, section 1228, .Wilson’s Rev. & Ann. St. 1903. Section 2 of the Schedule is in haec verba:

“All laws in force in ,the territory of Oklahoma “at the time of the admission of the state into the Union, which are not repugnant to this Constitution, and which are not locally inapplicable, shall be extended to and remain in force in the state of Oklahoma until they expire by their own limitation or are altered or repealed by law.”

Section 13 of the enabling act (Act June 16, 1906, c. 3335, 34 Stat. 275 [TJ. S. Comp. St. Supp. 1907, p. 149]) is as follows:

“That said state * * * ; and that the laws in force in the territory of Oklahoma, as far as applicable, shall extend over and apply to said state until changed by the Legislature thereof.”

Section 1, art. 17, Const., is as follows:

“Each county in this state, now or hereafter organized* shall be a body politic and corporate.”

The corporate existence of said county, which was then organized, not having been abolished by the terms of the Constitution, but, on the contrary, is kept in force by virtue of said section 1, art. 17, and also by said section 2 of the Schedule and section 13 of the enabling act.

It is a rule of construction that an instrument must be construed as 'a whole in order that its intent and general purpose may be ascertained, and, whenever possible, to the end that the intent of the framers may be ascertained and carried out, and effect given to all of its provisions, and to promote the objects for which it was framed and adopted. The only county and body corporate and politic that lost its identity by name in the provision relating to counties was provided for by a special section, wherein a successor was named. Every other county that existed under the territory of Oklahoma remains in name the same; and, as the new county of Ellis, which has the same county seat and a part of the original territory of Day, the parent county, retains the same county seat and a part of the territory and inhabitants of the parent county. It is contended by plaintiff in error that the section of article 17 of the Constitution giving, the boundaries of Woods county, makes no reference to Woods county as having existed under the territorial form of government but as to counties like Blaine, Canadian,. Cleveland, Custer, Dewey, Grant, Kay, Kingfisher, Lincoln, Logan, Noble, Oklahoma, Payne, Pottawatomie, Pawnee, and Washita, reference is made to such counties as they existed under the territory of Oklahoma. True, that as to “Payne county” it is referred to as it “now exists under the territory of Oklahoma” with certain townships detached therefrom, and that as to “Noble county” it is referred to as it “now exists under the territory of Oklahoma” with certain townships attached thereto, and with reference to Caddo county in the same article, whilst said county remains as it existed under the territory of Oklahoma, with the exception of the portion that was detached on the east, yet it is specifically described by metes and bounds, and in like manner Comanche county, wherein certain designated territory was detached on the southwest corner and on the east side, reference is not made thereto as the county existed under the territorial form of government, with certain fractional parts detached, but its territory is described by metes and bounds. You.will observe the same as to Greer county, and also Roger Mills, Woodward, and Beaver counties. As to Woods county the effect would have been the same had the county been described: That portion of Woods county as it existed under the territory of Oklahoma except a certain designated portion detached creating Alfalfa and Major counties, and also that described territory detached from Woodward county as it existed under said territory and therein annexed to Woods county. The only difference is a matter of taste; the legal effect is the same.

In the case of Commissioners of Crawford County v. Commissioners of Marion County, 16 Ohio, 467, it is said:

“The political organization of the county of Crawford was not destroyed by the act of 1845, creating the new county of Wyandot. The act organizing the county of Crawford has never been repealed. It cannot, therefore, be contended that Crawford is a new county. * * * The identity of a county does not depend upon its territorial boundaries, but .its political organization. * * * A change of boundary is not the erection of a new county. If its political organization continues, its identity is preserved; its existence dates from the act erecting it, and not the act which may change its boundaries. But in the present instance it was not the design of the Legislature to destroy Crawford county, or create it into a new county. If it was destroyed at all, it is by a construe tion of the act in reference to the Constitution, holding that reducing its old limits below the constitutional quantity destroyed the county, and that adding thereto new territory to make up the deficiency created a new county. Such was not the object or intent of the Legislature; nor are we authorized to construe the act to effect that result.”

Beyond question, upon the admission of Oklahoma into the Union, with her Constitution and organized government, the territorial government was displaced and all its powers and jurisdiction abrogated, except as the same remained or continued in force by virtue of provisions of the Constitution. The authority of the state was destructive of that of the territory, except as the organic law of the state continued such territorial authority or organization, but it was within the sovereign power of the people of the proposed commonwealth, through its constitutional convention, to provide that counties organized or existing under the territorial form of government should continue and be a body corporate and politic under the state government, succeeding to all the rights of such county under a territorial form of government. If we had any doubt as to this having been done, however, the same would be removed by sections 9 and 25 of the Schedule, which we hereinafter set out, to wit:

“All judgments and records of deeds, mortgages, liens, and other instruments, filed or recorded, affecting title to real and personal property in new counties that have been created out of the territory of any county or counties of the territory of Oklahoma, or out of any county or counties of the territory of Oklahoma and of any recording district or 'districts of the Indian Territory, are hereby made as effectual to impart notice and for all other purposes under the laws of the territory of Oklahoma, extended in force in the state, as the same would have been if no changes had been made by the provisions of this Constitution in the boundaries of the counties as they existed in the territory of Oklahoma, or of the boundaries of the recording districts as they existed in the Indian Territory.” (Section 9 of the Schedule.)

How can we reconcile the words, “are hereby made as effectual to impart notice and for all oiher purposes under the laws of the, territory of Oklahoma, extended in force in the state, as the same would have been if no changes had been made by the provisions of this Constitution in the boundaries of the counties as they existed in the territory of Oklahoma," without reaching the conclusion that it was intended that the counties as bodies corporate and politic should continue under the state government?

“Any county, city, incorporated town, township, board of education, school district, or other municipality, either in the territory of Oklahoma or the Indian Territory, that shall owe, at the time of the admission of the state into the Union, an indebtedness, evidenced by warrants, scrip, or other evidence of indebtedness, is authorized, through the proper officers thereof, to make provision for the payment, of, and to pay such indebtedness, either by tax levy or issuing bonds in lieu thereof, in accordance with and under the provision of the lays extended-in force in the state: Provided, that the limitation upon the amount of indebtedness that may be created by any county, city, incorporated town, township, board of education, school district, or other municipality, and upon the amount of taxes that may be levied by any county, city, incorporated town, township, board of education, school district, or other municipality, under the provisions of this Constitution, or of law, shall not apply to the indebtedness, the levying of .taxes, and the issuing of bonds provided for herein." (Section 25 of the Schedule.)

How could any school district or other municipality (which includes organized counties), that owed indebtedness at the time of the admission of the state into the Union, make provision for the payment or refunding of such indebtedness without such body corporate continuing its existence under the state government ? And how could such county have “proper officers" under the state government, without existing as a county or body corporate under such government?

The Legislature of the state of Oklahoma has unquestionably made a similar interpretatio,n in what is known as “Senate Bill No. 85," “An act to provide for the collection of taxes in the year 1907 in new counties where the same had been created in whole ,or in part out of the old counties in1’that part of the state formerly the territory of Oklahoma.” Section 1, 2, and 3 of said act are as follows;

“That in all the new counties created in whole or in part out of old counties existing in that part of the state formerly the territory of Oklahoma, before the admission of the state into the Union, the county commissioners of such new counties shall be authorized and empowered to transcribe all that part or parts of the tax roll of the parent county or counties affecting the taxable property within such new counties, and when so transcribed and approved by the commissioners’ court of such new county, the said tax rolls shall constitute and be the tax rolls of such new county for the purpose of collecting the taxes on all taxable property as therein shown for the year 1907.” (Section 1.) •

“All new counties as described in section 1 of this act shall succeed to and have all of the liens, rights and authority in the collection of taxes through the 'proper officers thereof as herein specified, for the year 1907, as the parent county or counties might have had, before the division thereof and where by law said old or parent county or counties of the territory of Oklahoma or any school district, municipal township, city, town or village, would have had a lien on property assessed by said'old county or counties for the year 1907, and appearing o,n said tax duplicate or roll for the year 1907, the said lien shall be transferred to and exist in favor of said new county or counties and the several municipal subdivisions thereof.” (Section 2.)

vWhen the tax rolls of said new counties shall have been made up and transcribed and approved as herein provided, the same shall be delivered to the county treasurer of said new county and said treasurer shall proceed to the collection and disbursement of the taxes appearing thereon as is now or may be provided by law, provided, that the new county shall bear the expense of making said tax roll, provided that nothing in this act shall be construed to prejudice the rights of any counties affected hereby to hereafter adjust their liabilities and assets among themselves as provided by the Constitution.” (Section 3.)

We conclude that Woods county, under the Constitution of the state of Oklahoma, succeeds to the property of said county under the territory of Oklahoma, except such as may be located and situated within the territory detached therefrom, subject to the provisions of sections 20 and 38 -of the Schedule, and any act or. acts of the Legislature enacted pursuant thereto. Said, section 20 of the Schedule, not being self-executing, had .neither any application to this ease on the 13th day of November, 1907, the date on which it was instituted (three days prior to the admission of the territory of Oklahoma and Indian Territory into the Union), nor at the present time, except to shed light on interpreting and construing the provisions relating to new and old counties. Said section 38 of the Schedule likewise has no other application.

But the contention might be made that the Legislature, in Senate bill No. 85, entitled “An act to provide for the collection of taxes for the year 1907 in new counties,” etc., -supra, having provided that all such counties should succeed to and have all the liens, rights, and authority in the collection of taxes through the proper officers thereof as therein specified for the year 1907 as the parent county or counties, etc., was a partial compliance with section 20 of the Schedule, and therefore ousted the Supreme Court of the contingent original jurisdiction provided for in said section 38. It is, however, not necessary to determine that question in this case.

It follows, therefore, that the decree of the’ court below should be affirmed, and it is so ordered.

All the Justices concur.