Pauls Valley on September 18, 1912, being void, we think when the court convened at Lindsay it should have acted upon the motion of plaintiff to dismiss the appeal and the request of the defendant for time to amend his bond, as though the former order had never been made. The former decisions of this court are to the effect that a party appealing should be permitted upon request to amend a defective appeal bond, rather than that the appeal should be dismissed. C., R. I. & P. Ry. Co. v. Moore, 34 Okl. 199, 124 Pac. 989; Spaulding Mfg. Co. v. Roff, 34 Qkl. 309, 125 Pac. 727; Spaulding Mfg. Co. v. Witter et al., 34 Okl. 313, 125 Pac. 729; Churchman v. Payte, 37 Okl. 649, 133 Pac. 178; Roberts v. Converse, 37 Okl. 169, 131 Pac. 539; Harper v. Pierce, 37 Okl. 457, 132 Pac. 667.

HATCHETT, C. This suit was instituted by the Missouri, Kansas & Texas Railway Company, as plaintiff, against David M. Walker, county treasurer of Pawnee county, and C. C. Marshall, sheriff thereof, defendants, for an injunction to enjoin the collection of certain taxes assessed against the plaintiff on its property in Jordan Valley township and in school districts Nos. 2 and 51 in Pawnee county. The plaintiff alleged in its petition as grounds for the injunction that in the said school districts there was a levy made in excess of the limitation fixed by the act of the Legislature of March 17, 1910 (Laws 1910, c. 64), and in excess of the limitation fixed by section 9, article 10, of the Constitution, and that in said township there was also a levy in excess of the The defendant in error, the plaintiff in the limitation fixed by said act of the Legislatrial court, has not favored us with a brief, ture. A stipulation as to the facts was enterand we would have been warranted under ed into between the parties and the cause the rules of this court, in reversing the cause submitted thereon to the court. The stipufor such failure, but, as the power of a coun-lation shows that the excise board of Pawnee ty judge in chambers or during vacation, in county made a levy for taxes for current counties where county court is held at more expenses for the year involved for the supthan one place, has been somewhat mooted, port of common schools in school district No. we thought best to decide this appeal on its 2 of 5.5 mills; for the support of common merits. schools in school district No. 51, 5.5 mills; We recommend that the order of the coun- for township purposes in Jordan Valley townty court of Garvin county at Lindsay, dis-ship, 3.3 mills. missing the appeal from the justice court be lief sought as to the two school districts, The court granted the rereversed, and the cause remanded, with direc-holding that the levy was five-tenths of a tions to reinstate the appeal and proceed in accord with this opinion.

PER CURIAM. Adopted in whole.

(54 Okl. 359)
MISSOURI, K. & T. RY. CO. v. WALKER,
County Treasurer, et al. (No. 4983.)
(Supreme Court of Oklahoma. Jan. 4, 1916.)

(Syllabus by the Court.)

TOWNS 54-TOWNSHIP-TAX LEVY-LIMIT. The total township levy for current expenses cannot, without a vote of the people, exceed 3 mills in any one year; and the 10 per cent, which the excise board is authorized to add for delinquent taxes, when added to the sum necessary for current expenses, must not increase the levy beyond the limit of three

mills.

[Ed. Note.-For other cases, see Towns, Cent. Dig. §§ 95, 97; Dec. Dig. 54.]

Commissioners' Opinion, Division No. 6. Error from District Court, Pawnee County; L. M. Poe, Judge.

Action by the Missouri, Kansas & Texas Railway Company against David M. Walker, County Treasurer, and another. Judgment for defendants, and plaintiff brings error. Reversed and remanded, with directions.

Clifford L. Jackson, W. R. Allen, and M. D. Green, all of Muskogee, for plaintiff in J. A. McCollum, of Pawnee, for de

error.

fendants in error.

mill in excess of the limit allowed by law, and enjoined the collection of the excess above 5 mills, but refused to grant the relief sought as to Jordan Valley township, and taxed half the costs against each of the parties, and the plaintiff has appealed to this court.

The principal question involved is: "What is the limit that the county excise board can levy for township purposes; is it 3 mills or 3.3 mills?"

Section 7376, Revised Laws 1910, is as follows:

the total levy for current expenses of each "Except as otherwise provided in this article, county, city, town, township or school district shall not exceed in any one year the following: County levy, not more than 5 mills: Provided, that any county may levy not exceeding one mill additional in aid of the common schools of the county, and in any county where a county high school is located, an additional levy of not more than one mill may be made for the county high school: Provided, further, that where the assessed valuation of any county is less than four million dollars, the county levy shall not exceed six mills. City levy, not more than seven mills. Incorporated town levy, not more than five mills. Township levy, not more than three mills. School district levy, for the support of common schools, not more than five mills."

Section 7380 provides:

"The excise board shall meet at the county seat on the last Saturday of July of each year for the purpose of examining the estimates of expenses for the county and for each city, town, board of education, township and school district therein. Their meeting shall be public and they shall keep a record of their proceedings.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

"That the 10 per centum for delinquent taxes shall be added to the total amount found necessary for current expenses, sinking fund and interest coupons, even though such an addition would exceed the limitation fixed by section 1 of said act, unless such an addition would exceed the limit fixed by the Constitution, and then in that event, no such addition can be made."

They shall have power to revise and correct any duced within such limit, but allowed to stand estimate certified to them where the amount as fixed for township purposes, because the thereof is in excess of the just and reasonable needs of the municipality for which the same is 3.3 mills would be within the limit of the made. When they shall have approved each es- Constitution. In other words, they want timate, if the same shall be within the limits the law in that regard to be made to read for current expenses, provided by the first secas follows: tion of this article [section 7376] and shall have ascertained the assessed valuation of property taxed ad valorem in the county and in each municipal subdivision thereof, and shall have ascertained the probable income of the county and of each municipal subdivision thereof from all sources other than ad valorem taxation, they shall thereupon make the levy therefor, adding thereto the amount ascertained to be necessary for a sinking fund which, with the money already in such fund, shall be sufficient to pay, at maturity, all bonded indebtedness of such municipality, and for the interest coupons falling due on the outstanding bonds of such municipality; to the total amount so ascertained to be necessary for current expenses, sinking fund and interest coupons shall be added ten per cent. for delinquent taxes. The levies so made by them shall be certified to the county clerk, who shall extend the same upon the tax roll."

The following section then provides for the method of holding elections for the purpose of increasing the levy in case of necessity. Now the question is whether or not under section 7380, providing the procedure for the excise board, the 10 per cent. which shall be

added for delinquent taxes authorizes the board to add such 10 per cent. to the limit fixed by section 7376. In the instant case the excise board fixed the levy in the school districts at 5.5 mills, and in the township at 3.3 mills, each being 10 per cent. higher than the limit fixed by section 7376.

Section 9 of article 10 of the Constitution fixes the limitation for school district levy

at not more than 5 mills for school district purposes for support of common schools without a vote of the people of the district. Then if the Legislature intended that the 10 per cent. which the excise board is authorized to add for delinquent taxes should be in addition to the 5 mills authorized for school district levy, then it was clearly beyond the point fixed in the Constitution; but if the law means that the excise board shåll ascertain the sum of money necessary for the purposes named therein, then should add 10 per cent. thereto, but that the total should be within the 5-mill levy, the act would be in accord with the Constitution. The act being susceptible of a construction which will uphold it, the courts will so construe it. C., R. I. & P. Ry. Co. v. Beatty, 34 Okl. 321, 118 Pac. 367, 126 Pac. 736, 42 L. R. A. (N. S.) 984; St. L., etc., R. Co. v. Zalondek et al., 28 Okl. 746, 115 Pac. 867.

Our task is to construe these statutes and ascertain the true intent of the Legislature. It is not to be presumed that the Legislature intended to go beyond the limit fixed by the Constitution in any event. If we place such construction upon this act as contended for by the defendants, then we must say that the Legislature intended to fix a maximum limit for school district purposes beyond that fixed in the Constitution. But if we give this act the construction contended for by the plaintiff, then all of its parts and each of its provisions would be within the maxi

mum levies fixed by the organic law.

And

further, it is the true rule of construction

should be so construed if possible, as to make that all parts of an act of the Legislature them harmonious and give effect to each provision. Section 7376 says:

article (which means that unless an election is That "except as otherwise provided in this held under the provisions of this article) the total levy for current expenses of each county, city, town, township and school district shall not exceed in any one year the following: * * *Township levy not more than three mills; school district levy, for the support of common schools, not more than five mills."

If section 7380 should be construed as to permit the excise board to add 10 per cent. for delinquent taxes to the 3 mills for township purposes and the 5 mills for school district purposes, then section 7376 could not be given its plain and clear meaning, but it would be necessary in that event to give it the meaning that the total levy for township purposes should be 3 mills and an additional 10 per cent., and the total levy for school district purposes 5 mills and 10 per cent.

The trial court evidently took the view that the levy for school district purposes exceeded the limit fixed by the Constitution, and therefore enjoined the collection of the taxes in excess of 5 mills, but that the proper construction of section 7380, Revised Laws 1910, would permit the excise board to levy taxes for township purposes at 10 per cent.

The defendants admit that the 5-mill limitation for school district purposes was bind-above the 3 mills fixed by section 7376. We ing upon the Legislature, but contend that it was the intent of the Legislature in the section above quoted to fix the maximum limit at 5.5 mills for school district purposes, and 3.3 mills for township purposes, and wherein the Legislature exceeded the limit provided by the Constitution as to the levy for school

cannot arrive at any other conclusion than that the trial court erred in so construing the act, and that the true construction is that the total the excise board can levy for township purposes is 3 mills, and that the 10 per cent. which the law provides shall be added for delinquent taxes, when added to the

expenses, for the township must be within the 3-mill maximum limit.

We therefore recommend that the judgment of the trial court be reversed and the cause remanded, with directions to enter judgment in favor of the plaintiff enjoining the collection of the excess in taxes and assessing the costs against the defendants. PER CURIAM. Adopted in whole.

(54 Okl. 365)

McDONALD v. COBB. (No. 4989.) (Supreme Court of Oklahoma. Jan. 4, 1916.)

(Syllabus by the Court.)

1. ANIMALS 95-RESTRAINING OF STOCK-REQUISITES OF NOTICE.

Under Snyder's Compiled Laws of Oklahoma, § 168, also Rev. Laws 1910, § 153, the notice required to be given by a party restraining stock, to the owner thereof, or the party having them in charge, need not be in writing.

[Ed. Note.-For other cases, see Animals, Cent. Dig. §§ 390-396, 402-408, 415; Dec. Dig. 95.]

2. ANIMALS 95-DAMAGES-NOTICE TO ASSESS-COMPUTATION OF TIME.

The 24 hours allowed under the same sections for the giving of notice to the justice of the peace to be and appear on the premises and assess damages must be estimated exclusive of Sunday.

[Ed. Note.-For other cases, see Animals, Cent. Dig. §§ 390-396, 402-408, 415; Dec. Dig. ~~~95.]

Commissioners' Opinion, Division No. 6. Error from County Court, Wagoner County; Leon B. Fant, Judge.

[1] The notices referred to are found in Snyder's Compiled Laws of Oklahoma, § 168, also in Rev. L. 1910, § 153, somewhat modified by the revision. Section 168 reads as follows:

"Within forty-eight hours after the stock has been restrained, Sunday not being included, the party so injured, or his agent, shall notify the owner of said stock, when known, and if unknown, the party having them in charge, and if said owner shall fail to satisfy the person whose lands are trespassed upon, he shall within twen ty-four hours thereafter, notify some disinterested justice of the peace to be and appear upon the premises to view and assess the damages; such notice to be written."

It will be noticed that the statute provides that the owner shall, within 48 hours after the stock has been restrained, Sunday not being included, notify the owner of said stock, and, if said owner shall fail to satisfy the person whose lands are trespassed upon, he shall within 24 hours thereafter notify some disinterested justice of the peace to be and appear upon the premises and view and assess the damages; such notice to be writ

ten.

Plaintiff claims the first notice to the owner or the party in possession should have been in writing, and, having been given verbally, was no notice at all. The statute being mandatory and jurisdictional, a failure to comply with the statute would lose to the defendant his right under the statute to hold the stock for damages sustained. As to the notice, the plaintiff cites Ensley v. State, 4 5 Okl. Cr. 119, 113 Pac. 234; Jones v. DashOkl. Cr. 49, 109 Pac. 250; Clemmens v. State,

Douglas County, 9 Or. 206. In Jones v.

C. C. McDonald brought action in replevinner, 89 Mich. 246, 50 N. W. 849; Minard v. against Alex Cobb. Judgment for defendant, Dashner, supra, the statute provided that the and plaintiff brings error. Affirmed.

Wm. H. Graham and H. E. Cunningham, both of Wagoner, for plaintiff in error. W. T. & A. C. Hunt, of Wagoner, for defendant in error.

BOLES, C. This is an action in replevin, instituted by plaintiff in error against defendant in error (hereinafter referred to as plaintiff and defendant, respectively), in the county court of Wagoner county. The replevin suit was defended upon the theory that the cattle claimed in the replevin action were rightfully held by the defendant under and by virtue of the herd law. Plaintiff complains that the defendant was not entitled to the possession of the cattle on account of irregularities in the distraint proceedings; in other words, the notice to the defendant, required under the statute, that his cattle were held to answer damages for trespassing upon the lands of the defendant, should be in writing. Second. That the notice required by the statute to be given the justice of the peace should be given within 24 hours, in the event a settlement cannot be effected after the first notice given; and of these in their order.

person impounding animals shall give notice to the owner which shall be delivered to the party or left at his place of abode and shall contain a description of the beasts. It is clear that the notice required under the Michigan statute must be in writing, for the manner of giving the same and the return thereof clearly imply that a written notice was required. In Clemmens v. State, supra, Judge Doyle, who wrote the opinion, had under consideration the notice required by statute to be given by the defendant of his intention to appeal. This statute also provides that proof of such service of notice must be filed with the clerk of the court, clearly implying a written notice. But in this case a different statute is before us for consideration. In the instances cited, a written notice was intended by the statute, but the statute before us simply provides that the notice be given, and does not designate what sort of a notice, and in the same statute other notices are required to be given in writing. If the framers of the statute had been of the opinion that it was necessary to give the first notice, and the one complained of herein, in writing, it would have been an easy matter for them to have said so; .consequently, we

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

hold that the notice in the instant case, be- though it is incompetent, is not reversible ering verbal, was sufficient.

ror.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4161-4170; Dec. Dig. → 1051.]

Commissioners' Opinion, Division No. 6. Error from District Court, Choctaw County; A. H. Ferguson, Judge.

Action by the Gutenberg Machine Company against the Husonian Publishing Company. Judgment for defendant, and plaintiff brings error. Affirmed.

error.

R. E. Stephenson, of Hugo, for plaintiff in Stewart & McDonald, of Hugo, for defendant in error.

[2] It is next contended that the notice given to the justice of the peace was not given within the time required by law; that is to say, 24 hours after the giving of the first notice. The evidence shows that the first notice required was given verbally about 12:30 o'clock, Saturday, April 15th. Sunday intervening, within 24 hours, the notice was given to the justice of the peace about 10 o'clock the following Monday. Plaintiff in error contends that Sunday should have been counted in, and that consequently the notice was not given within 24 hours as required by the statute after giving the first notice. This contention is not wholly without reason, but we believe under our statute which provides (section 2937, Rev. L. 1910), "Whenever any act of a secular nature, other than a work of necessity, or mercy, is appointed by law or contract to be performed upon a particular day, which day falls upon a holiday, such act may be performed upon the next business day, with the same effect as if it had been performed upon the day appoint-payment of the said notes. While there were ed," the notice required to be given in the other defendants in the trial court, it was present case not being an act of necessity or agreed that the defendant in error here was mercy, Sunday should be counted out, and if the real defendant, and the case was tried on the notice is served within 24 hours, not that theory, and it will be so considered here. counting Sunday, it would be sufficient. It therefore follows that the notice given the justice of the peace was served in time.

This being the law, we find no error in the record and recommend that the judgment of the court below be in all things affirmed.

PER CURIAM. Adopted in whole.

(54 Okl. 369)
GUTENBERG MACH. CO. v. HUSONIAN
PUB. CO. (No. 5044.)

HATCHETT, C. This was a suit by the plaintiff in error, Gutenberg Machine Company, as plaintiff, against Husonian Publishing Company and other parties in the district court of Choctaw county on promissory notes aggregating $1,500, and interest, and for the foreclosure of a chattel mortgage on a linotype machine which was given to secure the

The facts show that the plaintiff had sold the linotype machine to the defendant for $2,250, part cash, and notes were given for the deferred payments and a chattel mortgage to secure the notes; $750 had been paid. and this suit was brought to recover on the unpaid notes for the balance of the purchase price, and to foreclose the mortgage on the machine. The defendant tendered into court as full payment of its indebtedness $250, and set up a breach of warranty in the contract of purchase, and alleged that the defendant had been damaged in the sum of $1,250, in

(Supreme Court of Oklahoma. Jan. 4, 1916.) that the machine did not prove to be as war

(Syllabus by the Court.)

1. SALES 440 BREACH OF WARRANTY EVIDENCE OF VALUE-PRICE.

In an action involving a breach of warranty in the sale of personal property, the purchase price is competent evidence of the value of the property if it had been as warranted.

[Ed. Note.-For other cases, see Sales, Cent. Dig. §§ 1261-1276; Dec. Dig. 440.] 2. APPEAL AND ERROR 1064- HARMLESS ERROR-INSTRUCTIONS.

Giving an instruction which as an abstract proposition is erroneous, but, when applied to the evidence, has the same meaning as it would have had if it were strictly correct, is not reversible error.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 4219, 4221-4224; Dec. Dig. 1064.]

ranted. The jury returned a verdict for the defendant, and judgment was thereupon entered for the plaintiff for the amount of $250 as tendered, and the plaintiff has appealed to this court.

The following questions are presented and argued in the briefs: (1) That the evidence was not sufficient to sustain the verdict; (2) that the court misdirected the jury in its instructions; (3) that the court admitted incompetent evidence, to go to the jury which was prejudicial to the plaintiff.

[1] 1. On the first proposition the plaintiff contends that the defendant failed to prove the market value of the machine if it had been as warranted, and therefore that the evidence was insufficient to show the amount of its damage. It was incumbent on the defendant to prove the warranty, the consequent breach thereof, and the amount that Where a written contract of purchase which it was damaged thereby. The evidence contains a warranty is already in evidence, the admission of a letter which does not tend to shows: That the machine was bought by prejudice the jury nor enlarge the warranty, al- | written order which was duly accepted by

3. APPEAL AND ERROR 1051 HARMLESS ERROR-ADMISSION OF EVIDENCE.