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developed thereafter in an examination of , principal loss occurred in this department; one of the witnesses. The fact that Lipp- so that it is impossible to determine accurateman was biased and prejudiced in favor of ly the quantity and value of the dry goods conthe insurers is predicated upon his entire sumed. We are satisfied that it was consideraconduct during the proceedings, his acts and bly more than the amount found by the appraisstatements, and the influence shown to have ers, and we are not satisfied that it was as been exercised by him over the other arbi- much as the plaintiff claimed, and the lower trators, all taken in connection with the in- court was doubtless in the same predicament. adequate amount allowed. With these mat- There was some other proof, however, to ters in view, we do not think that the mer- which the lower court could, and probably cantile company should be charged with did, resort in arriving at the amount of the haring obtained sufficient knowledge thereof, damage in this particular. The amount of during the progress of the arbitration, to pre- the dry goods totally consumed was confined clude it from raising the objection to the to a certain space on one side of the storeaward upon that ground. It further appears room, and proof was submitted by the rethat after the arbitrators had concluded spective parties to show the quantity, qualtheir investigation, but before siguing the ity, and value of the goods contained in this award, Nash found fault because they had space. One of the estimates of the amount taken no proof with regard to the goods of the loss here was made by apportioning which were totally consumed, and stated to this burned space its proportion of the that they had nothing before them upon whole stock of dry goods, determined with which they could satisfactorily base an award reference to the entire space occupied by in that particular, and announced that the the goods belonging to that department. Anmercantile company would not be bound other estimate as to the amount of the loss thereby. The arbitrators, however, were at in this particular could be made from certain this time at work upon their award, and it | testimony relative to the purchases, sales, was soon thereafter made; whereupon it and profits of the mercantile company durwas immediately repudiated by the mercan- ing the time it had been in business. The tile company. The inadequacy of the award proof was uncertain, conflicting, and unsatitself was an important factor, entitled to isfactory as to all of the foregoing, and it consideration in determining the bias and would be difficult to make a satisfactory prejudice of Lippman, under the circumstan- computation therefrom. We do not know ces. This is supported by the case of Brad- how the lower court computed it. We might shaw v. Insurance Co., 137 N. Y. 137, 32 N. undertake a computation, and arrive at a E. 1055, which was a case very similar to different result, but we do not think it would the one before us. We are of the opinion be as reliable and satisfactory as the amount that the objection to the award on the found by the lower court, for that court had ground stated was made in time, and, there the advantage of hearing many of the witbeing competent evidence to sustain the find- nesses testify; and there being some eviing of the lower court that Lippman was dence to sustain the finding, and none by biased and prejudiced in favor of the insur- which we could arrive at a more satisfactory ance companies, that finding will not be set conclusion, the finding of the lower court aside.

should not be disturbed. The next contention is as to the amount of The last contention is as to the date from the recovery, and the consideration of this ques- which interest should be allowed. The plaintion embraces the plaintiff's appeal also. The tiff in his complaint prayed for interest from plaintiff contends that the only proof as to March 29th, and the court allowed interest the amount of the loss was the testimony of therefrom. The policies provided, in case some of the clerks of tho mercantile com- of a difference of opinion between the insurpany, who testified that the value of the er and the insured as to the amount of the goods damaged and destroyed exceeded the loss, for payment 60 days after proofs of loss sum of $60,000, and consequently the lower were submitted. But this clause was for court should have rendered judgment for the benefit of the insurer, and, by agreeing the full amount of the insurance. The de- to arbitrate, it was waived, and there was fendant contends that the best proof as to no error in allowing interest from the time the amount of the loss was furnished by the it was prayed for. Cascade Fire & Marine investigation and return of the appraisers Ins. Co. v. Journal Pub. Co., 1 Wash. St. aforesaid, and both parties insist that there 452, 25 Pac. 331; Insurance Co. v. Gotthelf was no evidence to support the amount found (Neb.) 53 N. W. 137; Snowden v. Insurance by the lower court. The damage to the Co., 122 Pa. St. 502, 16 Atl. 22; Nashua & goods that were not totally destroyed could L. R. Corp. v. Boston & L. R. Corp., 61 Fed. be fairly well ascertained, and also the goods 237, 9 C. C. A. 468. The judgment of the that were totally destroyed, except those be- lower court is affirmed. longing to the dry-goods department. The book containing a record of the stock of dry HOYT, C. and DUNBAR, GORDON, goods was consumed in the fire, and the and ANDER: , JJ., concur.

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(2 Okl. 624)

levied by the commissioners, together with ar SHARPE, County Treasurer, et al. v. ENGLE additional sum of four mills on the dollar for et al.

territorial purposes, is now on the books of the (Supreme Court of Oklahoma. Feb. 16, 1895.) treasurer for collection, and a cloud on the ti. TAXATION-TIME OF LEVY-DUTIES OP COUNTY tle of plaintiff's property; and that the treas. COMMISSIONERS.

urer is threatening to and will, unless restrain1. Section 5627 of the Statutes of Okla- ed, issue warrants for the collection of the homa of 1893, which provides that on the third

same, and cause the same to be levied upMonday in July of each year boards of county commissioners must levy the necessary taxes

on plaintiff's property, and will advertise and for that year, and that they may levy the same sell plaintiff's real estate, to their irreparaat any time after that day if the statement

ble damage. To this petition the defendants from the territorial board of equalization has not been received, but that such levy must not

filed a demurrer, on the ground that the be postponed for more than 10 days, and that court had no jurisdiction of the persons of the the commissioners must levy the taxes as di- defendants or of the subject-matter of the rected by law, is mandatory in the requirement

action, and that the petition did not state that the commissioners must levy the taxes as

facts sufficient to constitute a cause of acprovided, but does not prohibit the levying of the taxes after the expiration of the time if tion. The court overruled this demurrer, they are not levied within the time; and a and rendered judgment, upon the sworn pe tax payer may not enjoin the collection of taxes merely because they were levied a few days

tition, enjoining the collection of the taxes, late.

and from this judgment appeal is taken. 2. The county commissioners are only re- The point upon which it is contended that quired to make a levy for territorial taxes when the territorial auditor has not transmitted to the

the taxes, excepting the territorial taxes, are county clerk of the county a statement of the

illegal, is that the tax was levied after the territorial taxes levied by the territorial board time at which it is provided by law they of equalization 10 days after the third Monday should have been levied had expired. Sec. in July; and an allegation that no levy of the

tion 5627 of the Statutes of Oklahoma of territorial taxes was made by the board of county commissioners, without any charge that 1893 provides: “On the third Monday of the territorial board of equalization and audi- July of each year, the board of county comtor had failed to do their duties under the law,

missioners must meet in the county seat to does not state cause of action. (Syllabus by the Court.)

levy the necessary taxes for the current fiscal

year, and they may levy the taxes at any time Appeal from district court, Canadian coun

after the said third Monday of July if the ty; before Justice Jobn H. Burford,

statement from the territorial board of equalAction by M. M. Engle and others against ization has not then been received, but such Earnest Sharpe, county treasurer, and Cana- | levy must not be postponed for more than dian county, to restrain the collection of tax

ten days; and they shall levy the taxes as es. Judgment for plaintiffs, and defendants herein directed.” It is admitted by plain. appeal. Reversed.

tiffs in error that the 3d day of August, C. A. Galbraith, Atty. Gen., A. J. Jennings, 1893, was two days beyond the time fixed by Co. Atty., and C. H. Carswell, for appellants. this statute for the levying of the taxes for John I. Dille, John Schmook, Jr., C. O. Blake, 1833, even if the statement from the terri. and E. E. Blake, for appellees.

torial board of equalization was not filed

within the time provided by law, so that the BIERER, J. M. M. Engle and a large board of county commissioners could postnumber of other persons brought this ac- pone the time 10 days from the third Montion, as plaintiffs in the court below, against day of July. It is contended by defendants Earnest Sharpe, treasurer of Canadian coun- in error that this statute is mandatory, and ty, territory of Oklahoma, and Canadian that the commissioners must levy the taxes county, to restrain the collection of certain at the time provided for therein, and could taxes. The petition alleges that the plain. not levy them after the time bad expired. tiffs are the owners of real estate and per- The language of this statute is mandatory, sonal property in Canadian county, which but its mandatory effect is not as defendants has been by the assessors listed for taxation in error claim, It is mandatory in that the for the year 1893, and that on the 3d day commissioners must meet at the time or of August, 1893, the board of county commis- within the time fixed, and that the levy of sioners of said county attempted to levy the the taxes must cot be postponed for a longer taxes for the various funds in said county, time than the limit allowed by the section, and that the board of county commissioners and that they must levy the taxes provided has not at any time made a levy for terri- for; but it is not mandatory in that it car. torial taxes, nor a levy for any other pur- ries with it a prohibition against levying the pose, for said year, except at the time men- tax at any other time. The thing sought to tioned; that the defendant Earnest Sharpe be provided for by the legislature in this sec(plaintiff in error here) is the treasurer of tion was a positive requirement for the levy. Canadian county; that the county clerk of ing of such taxes as the county commissionsaid county, after such levy, made the tax ers are required to levy, and not a prohibi list, and delivered the same to the county tion against doing it at some other time, treasurer for collection; and that the tax, as which could not affect the justice or equity of the tax. It is not contended that any lev. quired by law, it is directory as a method of les were made except such as are provided procedure for enforcing the revenue laws of for by law, and it is not contended that the the territory in so far as any rights of a tax taxes were unfairly assessed, or are unjust payer may be concerned. In the case of from any cause, or that they are other than Mills V. Johnson, 17 Wis. 617, it was held what the law provides for. In our judg. that a statute requiring the assessors to rement, then, tbeir collection cannot be enjoin- turn their assessment rolls to the common ed from the mere fact that the levy was council of a city on or before the 1st day of made a few days after the time provided by July in each year, and providing that on the law. Under this statute, the prosecuting of- first Monday of July, or within 10 days thereficer, or any person having an adjudicated after, the common council should determine claim against the county to pay which a tax the amount of tax, and levy the same, was is by law required to be levied by the board directory as to time, and that the return of of county commissioners, might have, by ac- the assessment rolls in the month of August tion, required the commissioners to levy a and the levying of a tax on the 26th day of tax therefor if they had failed to do so dur- July did not invalidate the tax or render the ing the time provided by law. Why, then, proceedings void. The court said of the mat. might not the commissioners do the very ter: "These are the irregularities complainthing for the failure to do which they might ed of as to the levy and assessment; and it be subject to compulsory process? We can is clear to us that they are not of sufficient see no reason why they should not do it. force to invalidate the tax in a court of equiCertainly, there is no reason why they should ty. They all relate to the time in which the not, unless this statute becomes a probibition several steps were taken, and none of them against it after the expiration of the time reach the groundwork and substance of the fixed, In our judgment, this statute was proceeding. They do not go to the equity never intended to be given such a meaning.

of the tax, but only to mistakes and imperSpeaking upon the question as to whether fections purely technical in their nature, or not such provisions as these in a tax law which under our system can never be wholiy are so far mandatory as to prohibit the doing avoided in proceedings for taxation, and of a thing required at another time, Judge which do not affect the merits or justice of Cooley, in his work on Taxation (page 283),

the claim on the part of the public. Warden says: "The phraseology of the statute may V. Supervisors, 14 Wis. 618. But, more than sometimes settle this question very conclu

this, we are of the opinion that they are not sively. If, by the use of negative words, it such defects as would vitiate the tax at law. requires a particular proceeding to be taken The provisions of the chartei as to time are in a particular time or manner, and makes directory, and a failure to comply with them it void if not so done, or gives it effect, pro

did not avoid the proceeding." In Wingate v. · vided it is so done, or declares that, unless Ketner, 35 Pac. 591, will be found a decision It is taken, subsequent proceedings shall not from the supreme court of Washington which be had, or prohibits its being done except at supports our view on this question. In the the time the statute prescribes, or if any

syllabus the court says: “The requirement terros plainly imperative are employed, the of Act March 9, 1893, § 2, that a city council intent is clear, and no discretion can be per: shall, within 30 days after an assessment roll mitted in construction." He then quotes the is certified to it, by ordinance fix the rate following language of Judge Field in French of taxes to be levied, is not so mandatory V. Edwards, 13 Wall. 506: “There are un- that a slight delay will invalidate the levy." doubtedly many statutory requisitions in- The supreme court of Kansas has many times tended for the guide of officers in the con- held that a court of equity will not lend its duct of business devolved upon them which aid by injunction to restrain the collection of do not limit their power or render its exer- a tax because of mere irregularities in the cise in disregard of the requisitions ineffec- tax proceedings, and which did not injure tual. Such, generally, are regulations design- the substantial rights of the citizen or tax. ed to secure order, system, and dispatch in payer. Railway Co. v. Russell, 8 Kan. 558; proceedings, and by a disregard of which the Parker v. Challiss, 9 Kan. 155; Smith v. rights of parties interested cannot be injuri- Commissioners, Id. 296; City of Lawrence v. ously affected. Provisions of this character Killam, 11 Kan. 499; Challiss v. County are not usually regarded as mandatory, un- Com'rs, 15 Kan. 49. less accompanied by negative words import- It is contended, however, by defendants in ing that the acts required shall not be done error, that, even though the court may hold in any other manner or time than that desig- that the levy by the board of county commisnated.” Now, we think this provision of our sioners a few days after the time fixed by statute is one of the kind there referred to. law had expired would not render the tax It is a provision to secure a system, uniformi- void, yet the petition did state a cause of ty, and the certainty of provision for defray- action, because it alleged that a four-mills ter. ing public espenditure; and, while it is man- ritorial tax had been entered upon the tax datory upon the commissioners in so far that rolls, and was on the books of the treasurer, It fixes upon them the positive duty of doing as a cloud upon the defendants' title, and the thing at the time or during the period re- that no levy bad been made for territorial

V.39P.no.3-25

purposes by the board of county commission. day of September, 1891, the defendant in error ers.

It is claimed that the territorial tax demanded paymert for, or return of the lumber could not be entered without a levy by the

from, the plaintiff in error, both of which were

refused. The plaintiff in error thereby approcounty commissioners. We do not think this

priated the lumber, and will be bound to pay contention correct. The law provides that the value thereof at the time of the demand and the territorial board of equalization shall

refusal to pay for or return the same, togeth

er with interest upon the amount at 7 per cent. levy the territorial taxes, and on or before

from the day of September, 1891. It is the third Monday in July of each year the an ordinary case of conversion. territorial auditor shall transmit to the coun- (Syllabus by the Court.) ty clerk of each county a statement of the

Error to district court, Oklahoma county; same; and that, if such statement is not re

before Justice Henry W. Scott. ceived by the county clerk within ten days

Action by the T. M. Richardson Lumber after said third Monday in July, then the

Company against the city of Oklahoma City. county commissioners shall levy a general

Judgment for plaintiff, and defendant brings territorial tax, at the rate of three mills on

error. Reversed. the dollar. The county commissioners are not required to levy a territorial tax except W. R. Hays & Van Winkle, for plaintiff upon a failure of the territorial board of

in error. C. A. Galbraith, for defendant in equalization. There is no allegation in the error. petition that the territorial board of equalization failed to perform its duty, so that the MCATEE, J. This suit was brought by same could devolve upon the county com- the T. M. Richardson Lumber Company missioners; and, as the petition does not against the city of Oklahoma City to recover charge the failure of the territorial board, compensation for a bill of lumber amounting the allegation that the board of county com- to $156.04, furnished on July 2, 1889, by the missioners had not at any time made a levy Jones-Richardson Lumber Company, at the for territorial purposes amounts to nothing, request of the city council of Oklahoma City, and cannot be held to constitute a cause of a local government which had been improaction. The presumption is that the territo- vised by the residents of the town, in the abrial board of equalization and the territorial sence of any statutory authority on the part auditor did their respective duties, and such of said residents to create a municipal gov. presumption must be overthrown by proper ernment, and under which sanitary, police, averment before any failure on the part of and other municipal powers were exercised. the board of county commissioners could be up to the time of the passage of the organic the basis of complaint.

act for the territory of Oklahoma, when, for For the error complained of, the judgment a brief period, the form of village governmust be reversed, and remanded, with direc- ment existed under the laws of the state of tions to sustain the demurrer to the petition, Nebraska, as provided by the organic act. and render judgment for the defendants, un- At the time the lumber was furnished there less further objection to the validity of the was no duly-organized municipal government taxes is shown by amendment to the peti- for the village or city of Oklahoma City. tion. All the justices concurring, except Thereafter, upon the 7th day of April, A. D. BURFORD, J., not sitting, having presided 1891, and after the first meeting of the first in cause below.

legislature of Oklahoma, the village govern

ment was abandoned, and the city became (3 Okl. 5)

incorporated as a city under the laws of the CITY OF OKLAHOMA CITY V. T. M.

territory of Oklahoma. Thereafter, on the

day of September, A. D. 1891, the deRICHARDSON LUMBER CO.

fendant in error, which had become assignee (Supreme Court of Oklahoma. Feb. 16, 1895.)

for value of said account, presented its bill MUNICIPAL CORPORATIONS PROVISIONAL FORMA

to the said city government for payment, tion-PowERS-CONVERSION.

which was refused. The lumber had been 1. The provisional government for the regulation and management of the affairs of the bought for the purpose and had been recities and towns of the territory of Oklahoma, ceived and appropriated by the provisional which were established prior to the act of

government in making sidewalks, and in congress approved May 2, 1890, were but voluntary associations of the people living in

building a tool house, shelter for police, them, were without legal authority, and had no cross walks, culverts, etc., and had been power to contract debts which should constitute from that time continuously, and was at the legal obligations upon the municipalities afterwards formed under authority of law.

time of the demand for payment made by 2. Purchases of lumber were made prior

defendant in error from plaintiff in error, to May 2, 1890, from the Jones-Richardson still appropriated to the use to which it had Lumber Company by persons representing the been applied. The defendant in error at the provisional government of Oklahoma City. The lumber was applied in constructing side

same time filed a conditional petition with the walks upon the streets, and for other public city council of plaintiff in error, by which it improvements for the city. The unpaid ac- requested payment of said account, and re. count for the lumber was assigned for value to

quested, in case its demand for payment the defendant in error. The plaintiff in error became a legally incorporated city on the 7th

was not complied with, that it might be perday of April, 1891. Thereafter, upon the mitted by the city council to take up and retain the lumber as it was then lying on the , they could not bind themselves by contracts streets, in the sidewalks, culverts, cross or bind anyone else. They were morally walks, closet, shelter, and tool house. The bound to make just recompense for that city government, defendant in error, refused which they received in money, labor, or maboth demand for payment and request that terials, but no such obligation could be enplaintiff in error be permitted to take back forced against them." There could therethe property. The defendant in error, plain- fore be no transmission from it to the plaintiff below, brought this suit, alleging in the tiff in error of any rights, duties, or liabiliamended complaint, upon which the case was ties. No legal liability is therefore imposed tried, that the plaintiff in error had convert- upon the plaintiff in error to pay for the lumed the lumber to its own use, and the jury ber, the possession of which was secured by returned a verdict for the contract price of the provisional government. The plaintiff in the lumber, with interest from the date of error is not, therefore, liable for payment of purchase by the provisional city government the lumber as supplied to the provisional upon July 2, 1889, upon which judgment was government. It is liable for the payment of entered up against plaintiff in error, and for the value of the lumber at the time of the costs of suit. The defendant in error brings demand made by defendant in error, and its the case here for review.

refusal to either pay for the lumber, or to The various assignments of error raise the permit it to be removed and taken out of its questions: (1) Of the liability of plaintiff in possession. The defendant in error had the error, the city of Oklahoma City, to pay for right, at the time of the transaction with the the lumber supplied the provisional govern- | provisional government, to hold liable those ment of Oklahoma City prior to its legal in- who pretended to deal with authority in its corporation; and, if such liability is found name; or it had a right to repudiate the preto exist, (2) whether payment should be re- tended contract, and retain the ownership quired for the value of the lumber at the of the property. In demanding from the time it was furnished to and used by the pro- plaintiff in error payment for the property, visional government, or whether payment or possession of it, he asserted his claim, and should be made of the value at the time of was entitled from the plaintiff in error to the refusal either to pay for or return the either return of the lumber or payment for lumber. These questions were raised at the it. Reynolds v. Shuler, 5 Cow. 323; Tnomptrial by demurrer to the amended complaint, son v. Currier, 24 N. H. 237; Shaw v. Peckwhich was overruled; by objection to the ett, 25 Vt. 423; Blood v. Sayre, 17 Vt. 609. admission of evidence under the complaint; Upon such demand being made, and the reby demurrer to the evidence introduced in fusal of the plaintiff in error to return the behalf of the defendant in error as not prov- lumber or to pay for it, the defendant in ing a cause of action,--all of which were error became entitled to recover its value overruled, and such ruling excepted to; by as for a conversion, together with interest offering of instructions by plaintiff in error, at the rate of 7 per centum per annum from which were refused; by the third instruc- the date of the demand made by the defendtion given by the court, which was excepted ant in error. Weymouth v. Railroad Co., to by the plaintiff in error; and by the over- 17 Wis. 550; Weld v. Oliver, 21 Pick, 559; ruling by the court of a motion for a new Greeley v. Stillson, 27 Mich. 153; Winchester trial, which ruling was excepted to. The v. Craig, 33 Mich. 205; Davis v. Fairclough, contention that the plaintiff in error can be 63 Mo. 61; Ewing v. Blont, 20 Ala. 691; legally liable to pay the debts which were Saunders v. Clark, 106 Mass. 331. All of incurred, or sought to be incurred, by the the justices concur, except SCOTT, J., not provisional government of Oklahoma City, sitting. prior to its legal incorporation, cannot be sustained. The provisional government was without legislative authority. It was but the

(2 Okl. 616) voluntary association of the people of the

MATTHEWS v. YOUNG. community for the regulation of their af- (Supreme Court of Oklahoma. Feb. 16, 1895.) fairs during an interregnum. It had no EQUITY-JURISDICTION-Public LANDS. legislative authority. The character and lia- 1. Equity hes no power to determine any bility of such provisional government was

question affecting the title to public lands, un

til the land department has determined the considered by this court in Mayor, etc., of matter, and the title has passed from the govCity of Guthrie v. Territory, 1 Okl. 193, ernment. as follows: "The proposition which lies at

2. Equity will not grant relief against an the foundation of the law of corporations,

adverse decision of the town-site trustees ap

pointed under Act Cong. May 14, 1890, in a public and private, exists, and can only ex- contest in which plaintiff failed to deposit the ist, by virtue of express legislative enact- required fee, though such failure was because ment, creating or authorizing the creation or

of plaintiff's poverty. existence of the corporate body. Legislative Error from district court, Logan county; sanction is with us absolutely essential to before Justice Frank Dale. lawful corporate existence.” Dill. Mun. Corp. Bill by Francis M. Young against J. L. Mat

37. “These provisional governments had thews. Judgment for plaintiff, and defendno legal existence; they were nonentities; ant brings error. Reversed.

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