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It is further assigned that the conclusions the $800 payment. We find no inconsistency of law and judgment as made by the court in the findings. When the subsequent exdo not follow from the findings, and also amination of the abstract disclosed that that the findings are incousistent with each Perry was not the owner, it merely disclosotlier. The court found that Pettit & Son. ed what appellants already knew, and what on January 20, 1900. gave to appellants a they knew when tliey completed their conwritten receipt for $100, as a payment upon tract of purchase of January 220. The disthe purchase price; the writing also contain- closures of the abstract therefore furnished ing other data concerning the terms of the no excuse for not making the subsequent p"?rhase. It stated the aggregate purchase payments, since the court found that the Dorice as $0,600. Eight hundred dollars was to owner was at all times ready, able, and lee paid in cash, and the balance in deferred willing to convey. Time having been made payments. An abstract of title was to be fur- the essence of the contract, and it having nislied, and five days allowed for its examina- been provided that payments made should tion. It was also stated that if the title was be forfeited in default of making other paynot good, and could not be made good, then ments, it follows that appellants are not enilie agreement should be void; but if found to titled to recover the payment made, and that he good, and not accepted by the purchaser, the judgment follows from the court's findthe crnest money should be forfeited. Time ings. was made the essence of the agreement, and The judgment is affirmned. it was also stated that it was made subjert to the owner's approval. It was also found FULLERTON, ROOT, and CROW, JJ., that the property was listed for sale with: concur. Pettit & Son by the defendant Perry. The foregoing was found with reference to what
(18 Okl. 555) took place on January 20th, and it was fur
NATIONAL BANK OF COMMERCE v. ther found that on January 220 said Perry
JONES. contracted to sell the property to the appellants. by a written contract of sale execut
(Supreme Court of Oklahoma. June 25, 1907.) al and delivered on that date; that the fur
1. CHATTEL MORTGAGES-LIEY-RECORDING. ther sum of $700 was then paid, completing valid recorded mortgage removes the chattels
Where the owner of chattels covered by a the first payment of $800. The terms of sale without the knowledge or consent of the mortwere set forth in the contract as in the mem- gagee to another county, it is not necessary for orandum of January 20th. The lots were
the mortgagee, in order to preserve the lien, to
file the mortgage or a copy thereof for registry owned by one William Pigott, at all times
in the county to which the property is removed. mentioned, and it was found that he was at
[Ed. Note.-For cases in point, see Cent. Dig. all times rea ly, willing, and able to convey; vol. 9, Chattel Mortgages, $ 100.] that on January 15th Pigott authorized M. 2. SAME-PRIORITIES-AGISTER'S LIEN. B. Crane & Co. to sell the property, which
The lien of a prior valid recorded chattel authorization continued until after the con
mortgage will take precedence over the subse
quently acquired lion of a livery stable keeper mencement of this action; that prior to the
or agister upon animals placed in his charge, execution of the said contract from Perry to unless such animals were delivered to such lienappellants, J. B. Crane & Co. executed their
holder to be kept and cared for by him with
the consent of the mortgagee. contract of sale to l'erry, and the same was
[Ed. Yote. For cases in point, see Cent. Dig. ratified by Pigott; that at the time the $10:0
vol. 9, Chattel Mortgages, $ 235.] was paill and the memorandum receipt giy
3. COXSTITUTIONAL LAW-VESTED RIGitsen, on January 20th the appellants under- OBLIGATION OF ('OXTRACTS. stood, and it was so represented, that Perry An act of the Legislature, which postpones was the owner; but that before the execution
an existing valid nortgage lien and makes a
subsequently created lien superior to the mortof the contract of January 220, when the fur
gage lien, is a law impairing vested property ther payment of $700 was made, appellants rights and impairing the obligations of a conwere apprised that Perry had only a con
tract, and is void for conflict with the Constitu
tion of the United States. tract to purchase from the owner. Appel
[Ed. Xote.-F'or ases in point, sre Cent. Dig. lants, having failed to make subsequent pay- vol. 10. Constitutional Law, $$ 181, 49-1.) ments, claimed that the examination of the
(Syllabus by the Court.) abstract disclosed that l'erry was not the owner, that the title was not therefore good, Error from District ('ourt, Pawnee Counand that appellants were for that reasonry- ty: before Justice Buyaril T. Hainer. leased from urther obligations and entitled Artion by the National Bank of Commerce to a return of the $800 already paid. The | against Ben Jones. Judgment for defendant, Siune contention is made here. But it will and plaintiff brings error. Reversed. be seen that the court found that appellants
Wrightsman & Fulton and James B. Diges, knew when they paid the $700 tlit l'erry for plaintiff in error. was not the owner, and that he had only a contract of sile. Whatever may have been BURFORD, C. J. One I. S. Jones was a their understanding in the first instance, resident of Payne county, Okl., and there they learned the facts before they completed owned and kept oue gray burse, valued at
$60. On December 6, 1900, he executed to has removed. The object in requiring a rec-
And this rule is sustained by abundant aucourt of Pawnee county. The horse was tak- thority. See, also, 6 Cyc. 1088, 1089, and auen on the writ of replevin and delivered to
thorities there cited. the plaintiff, who retains possession. On the The next contention is that the lien for trial in the probate court it was held that feeding and caring for the horse is superior the mortgagce could not recover, and the to that of the mortgage. The weight of auhorse was ordered returned to the defendant. thority is to the effect that a lien for feeding Appeal was taken to the district court of and caring for domestic animals is not suPawnee (ounty, and the cause there tried perior to the lien created by a prior valid to the court, and judgment rendered sustain- recorded mortgage. 1 Jones on Liens, $ 691. ing the lien of the defendant for feed and It is also stated in 19 Am. & Eng. Enc. (2d care for the sum of $25, which the plaintiff Ed.) p. 438: “It is held by the overwhelmwas ordered to pay, or, on default in pay- ing weight of authority that the lien of a ment, to return the horse. This judgment prior valid recorded chattel mortgage will was rendered upon the express holding by take precedence over the subsequently acthe trial court that the lien for feed and quired lien of a livery stable keeper or agistcare was superior to the mortgage lien. The er upon animals placed in his charge, unbank, the mortgagee, brings the case here for less such animals were delivered to the livery review, and the sole question for determina- stable keeper or agister to be kept and cared tion is: Which is the superior lien, that of for by him with the consent of the mortthe mortgage to the bank, or that for feed gagee." The Supreme Court of Kansas has and care clained by the liveryman?
adopted a rule to the contrary in a number It is said in the brief that the trial court of cases, but the authorities generally are held that the bank had lost its lien by a not in accord with the decisions of that court. failure to have the mortgage filed for record But it is said that our statute changes the in the office of the register of deeds of Pawn- general rule, and that in this case the mortee county after the horse was removed from gage lien must be held inferior to the lien Payne county. Such is not the law. When of the agister. This cannot be. The statthe owner of the horse, who resided and kept ute referred to was adopted February 28, the horse in Payne county, executed a mort- 1901, almost three months after the mortgage gage upon the horse, and it was duly filed had become a valid lien and the rights of for record in such county, the mortgage lien the mortgagee completely vested. This statbecame effective against all persons who sub- ute (chapter 3, p. 43, Sess. Laws 1901) is sequently dealt with the properiy, and a re- as follows: moval of the property by the mortgagor
"Section 1. That any person or persons without the consent or connivance of the employed in feeding, grazing or herding any mortgagee would not affect the validity of domestic animals, whether in pasture or the mortgage lien. It is said in Jones on otherwise, shall for the amount due for such Chattel Mortgages, 8 269: "The removal of feeding, grazing or herding have a lien on a mortgagor from the town or county in said animals." which he resided when the mortgage was exe
"Sec. 3. All liens not to exceed in the agcuteci, and where it was duly recorded, and gregate twenty-five per cent. of the value of the taking of the mortgaged property with such animals against any domestic animal him, does not invalidate the record of the or animals for labor, grazing, herding or mortgage, or necessitate the recording of feeding, or for corn, feed, forage or hay, it again in the town or county to which he furnished the owner of such domestic animals
as herein provided and actually used for such to the Constitution of the United States and purpose, shall be prior to all other liens there- the principles of the Declaration of Independ
ence, that no distinction shall be made on acon, and no recital or stipulation in any mort
count of race or color, and that the convention gage or other incumbrance on any cattle so shall by ordinance irrevocable accept all the fed shall be held to supersede or vitiate the terms and conditions in the enabling act. lien here provided for."
The power vested in the convention to The Constitution of the United States,
form a state government clearly implies the which is the supreme and paranount law of
power to create and define all the counties withthe land and controlling upon all bodies, ei-. | in the limits of the proposed state, the only ther legislative or judicial, within the terri- limitation upon the convention in this respect
being that the Osage Indian Reservation shall tories, in article 1, § 10, provides: "No state
remain a separate county until the lands thereshall pass any law impairing the obligation of in are allotted in severalty, and until changed contracts." And by the provisions of the by the Legislature of the state. organic act this provision of the Constitution,
5. COUNTIES-DEFINITION. as well as all others not locally inapplicable,
A "county" is one of the territorial divi
sions of the state created for public and politiis put in force in this territory. Organic
cal purposes connected with the administration Act St. 1890, 8 28. An act of the Legislature of the state government. which seeks to impair the obligation of a 6. CONSTITUTIONAL LAW – STATES – STATE
OFFICERS. contract, or to impair or destroy vested prop
Officers for a full state government, under erty rights, is unconstitutional and void.
the terms of the enabling act, include not only Toledo Railroad Co. v. Hamilton, 134 U. S. state officers whose powers and duties are co296, 10 Sup. Ct. 546, 33 L. Ed. 905; Crowther extensive with the limits of the state, but in
cludes all the officers provided for in the Conv. Fidelity Ins. Co., 85 Fed. 43, 29 C. C. A. 1;
stitution, from the highest to the lowest, whose Yeatman v. King, 2 N. D. 428, 51 N. W. 721, duties are in any manner connected with the 33 Am. St. Rep. 797; Kilpatrick v. Kansas administration of the state government. City, etc., R. R. Co., 41 Am. St. Rep. 758, note; 7. SAME-CONSTITUTION-SUBMISSION TO PEO
PLE. Giles v. Stanton, 85 Tex, 620; 1 Jones on
Congress, by the express terms of the enLiens, & 701. These authorities lay down the abling act, conferred the power and authority doctrine that a mortgage lien constitutes a upon the convention to pass appropriate ordivested property right, and after it has at- nances for submitting the Constitution to the
people for ratification or rejection at an electached the Legislature has no power to create
tion to be held at a time fixed in said ordinance. a lien superior to the vested interest, or to
8. SAME-ORDINANCES. provide that such vested lien shall be made An ordinance, as used in this act, means a inferior to a lien subsequently created ; and
law which is essential to carrying into effect
merely the objects for which the convention we think this rule sound, and in harmony
was created. Such an ordinance, when once with reason and justice.
adopted by the convention, has the force and efThe judgment of the district court is re- fect of law. versed, at the costs of defendant in error, 9. SAME-INJUNCTION-JURISDICTION CONwith directions to vacate and set aside the STITUTIONAL CONVENTION.
A court of equity has no power or jurisdicjudgment in favor of the defendant and to
tion to restrain or enjoin the constitutional enter judgment for the plaintiff that it was convention, its officers or delegates, from exercisentitled to the possession of the horse at the ing any of the rights, powers, and obligations
confided to it by Congress or the people; nor time it commenced its action and for its
can the powers of the court be invoked to recosts. All the Justices concur, except HAIN- strain or enjoin the submission of the ConstituER, J., who tried the case below, not sitting. tion, or any proposition contained therein, to a
vote of the people in advance of its adoption and ratification by the people and its approval
by the President of the United States, on the (18 Okl. 561)
ground that the proposed Constitution, or any FRANTZ et al. v. AUTRY.
of its provisions, is unconstitutional, or that the (Supreme Court of Oklahoma. June 25, 1907.)
convention acted in excess of its lawful powers.
10. SAME — LEGISLATIVE POWERS – DELEGA1. CONSTITUTIONAL LAW - CONSTITUTION
TION TO EXECUTIVE-JUDICIAL REVIEW. DEFINITION.
The Constitution of the United States guarA "constitution" is the written instrument
anties to every state a republican form of govby which the fundamental powers of the govern
ernment, and the power to determine whether ment are established, limited, and defined, and
the Constitution is republican in form is priby which those powers are distributed among marily a legislative power, and resides in conthe several departments for their safe and useful exercise for the benefit of the body politic.
gress. But this power was delegated by Con
gress to the President of the United States, and 2. SAME-CONSTITUTIONAL CONVENTION.
such question is not subject to judicial cogniThe constitutional convention is vested with zance, the power and charged with the duty and re- Irwin, J., dissenting, and Burwell, J., dissentsponsibility of forming a Constitution and state ing in part. government, and in the performance of such duties it exercises legislative powers and functions.
(Syllabus by the Court.) El. Note.-For cases in point, see Cent. Dig. Error from District Court, Woods County ; vol. 10, Constitutional Law, $ 1.]
before Justice John L. Pancoast. 3. SAME-POWERS.
Action by G. E. Autry agaiust Frank Frantz, The convention has, and can exercise, plenary powers, subject to the limitations and re
Governor of Oklahoma, and others. Judgstrictions that the Constitution shall be repub- ment for plaintiff, and defendants bring erlican in form, that it shall not be repugnant ror. Reversed and dismissed.
On June 16, 1906, the Congress of the Unit- vide or designate the townships of their reed States passed an act entitled "An act to Sective counties into election precincts and enable the people of Oklahoma and of the In est: Wish the boundaries of the same, and dian Territory to form a Constitution and shall designate a polling place in each prestate government and he admitted into the cinct, and appoint all necessary inspectors Union on an equal footing with the original of election in the several precincts, whose states," etc. Act June 10, 1906, c. 3:333, 34 duties shall be the same as inspectors of ele, Stat. 207. Under and in conforinity with the tion under the laws of the territory of Okprovisions of this act. members of the con- lahoma, and shall also perform all other dustitutional convention were elected, and the ties required to be done or performeel lig the convention was duly organized; W. II. Mur- boards of county commissioners pertaining to ray being elected its president, and John elections under the laws of the territory of M. Young its secretary. Thereupon the con- Oklahoma for elections therein, and shall vention proceeded to the forming of a Con. perform all other duties or acts necessary to stitution and state government, and an ordi- the conduct of said elections." nance for the submission of the same to the This action was commenced in the district qualified voters of the proposed state of Ok- court of Woods county by G. E. Autry, a taxlahoma for ratification or rejection, August payer and member of the board of county ti, 1907, being the date fixed by said ordi- commissioners of said county, against Frak nance for the holdirg of such election, and Frantz, Governor of Oklahoma, and W. II. which ordinance also provided for the election Murray, president of the constitutional conof all state, district, county, and township offi- vention, John M. Young, secretary ther-of. cers, including the members of the Legisla- and the other defendants as the saill desisture and five Representatives to Congress. nated county commissioners and county clerks It was also provided that within 20 days aft- of the counties of Alfalfa and Jajor, to ener the adoption of such Constitution and or- join the said Frank Frantz, W'. II. Murr:ly, dinance by the constitutional convention, and John M. Young from issuing or publishwhich was done on April 22, 1907, the Gore ing any proclamation in which said probalernor of Oklahoma should issue a proclama- mation it is proposed to submit to the electtion calling an election for the 6th day of ors of the proposed state of Oklahoma, either August, 1907, in the manner prescribed by as a part of the proposed Constitution or as said ordinance; and that, if the Governor a separate ordinance, any clause or provishould fail or neglect to call such election, sion dividing, or purporting to divide, Woods then the president of the constitutional con- county, or changing or in any wise interfervention was authorized to issue such proc- ing with any township or precinct therein, lamation. Woods and Woodward counties and to enjoin and restrain the said C. I. are organized and existing counties of the Overstreet, C. II. Chowning, C. M. Delzell, M. territory of Oklahoma, and have been such R. Mansfield, Charles Bowman, J. C. Major, since the opening of the Cherokee Outlet to I. J. Corwin, and Charles B. Powell froin in settlement in 1893; each of said counties any wise interfering with or usurping, or athaving a full complement of county, town- tempting to usurp, any of the duties of the ship, and city officers. It is proposed by the county commissioners or county clerk, or any constitutional convention, by one of the pro- or either of them, of the county of Woods, in visions of the Constitution, to divide the ter- or about the said proposed election or any of ritory which has heretofore composed Woods the preparations therefor, at or in any part (ounty into three parts: a portion of the of the territory of the county of Woods as eastern part of said county being designated now described and existing, and from in any and established as Alfalfa county, a portion wise acting, or attempting to act, in any de of the southern part as Major county, and pacity or to any extent in any election to he the remainder of said county of Woods, to- held in the said pretended counties of Alfalgether with several congressional townships fa and Major, or either of them. In the ahtaken from Woodward county, is designated sence of the district judge from the county, as Woods county. This action of the con- application was presented to the probate vention provides for the establishment of judge of Woods county, and a temporary ortwo entirely new counties, to wit, Alfalfa der of injunction was granted as prayell for and Major, which do not, at the present time, in the plaintiff's petition. Defendants in the exist as counties in the territory of Oklaho- (ourt below, appellants here, interposed a ma. By the terms and provisions of the demurrer to the petition, for and upon the election ordinance, three persons are named grounds that the plaintiff had no legal caand appointed as county commissioners, and į pacity to sue; that the court had no jurisone person as county clerk, for each of said diction of the subject-matter of the action ; Mfalfa and Jajor counties. The counties and that the petition did not state facts sultiare divided into municipal townships and (ient to constitute a ause of action. At the commissioners' districts, to conform to such sime time it motion to dissolve the tempodivisions in the other counties of Oklahomil. rary injunction was filed, for the reasons ind it is further provided in said ordinance and upon the grounds above stated, and in that: “Said county commissioners sh:11 on : addition thereto alleving that the defendants or before the Sth day of June, A. D. 1907, di- and each of them are only attempting to per.
form those acts and duties legally imposed · to which the defendants, and each of them, upon them by the ordinance of the constitu- duly excepted. It is therefore by the court tional convention, and that the convention considered, ordered, and adjudged that the organized under the laws of Congress has le- ; demurrers of the defendants and each of yal power and authority to provide by ordi- ! them separately be, and the same are hereby, nance for the performance of the duties which i overruled; to which the defendants, and each are imposed upon them. Upon the presenta- : of them, duly except. It is further considertion and hearing of the demurrer and the ed, ordered, and adjudged by the court that motion to dissolve the temporary injunction, the motions of the defendants, and each of the court overruled the same, and held: That : them separately, to vacate and set inside the the plaintiff had the legal capacity, as a citi- | temporary injunction heretofore granted be, zen and taxpayer, to maintain this action; and the same is by the court hereby, overthat the constitutional convention had no ruled; to which the detendants, and each of powers conferred upon it, except powers as them, separately duly except. It is further are expressly conferred upon it by the en- by the court considered, ordered, and adjudyabling act, and such powers as are inciden- ed that the temporary injunction heretofore tally necessary to carry into effect the objects granted herein be, and the same is hereby, and purposes of such act, and denied the made perpetual, and that the defendants power of the convention to divide Woods Frank Frantz, W. H. Murray, and Jobn M. county, and create new counties thereof, and Young be, and they are hereby, enjoined and that the convention, in that respect, acted restrained from issuing or publishing any beyond its express or implied powers; and proclamation in or by which said proclamafurther held that the convention had no pow. tion it is proposed to submit to the electors er to provide for the election of county or of the proposed state of Oklahoma, either as township officers at the time the Constitution
a part of the proposed Constitution for said is submitted to the voters of the proposed state of Oklahoma, or as a separate ordistate of Oklahoma for their ratification or nance, any clause, provision, or proposition rejection.
dividing, or pretending to divide, Woods The defendants thereupon filed a general
county, in said territory of Oklahoma, or denial, and the cause was submitted to the
changing, or pretending to change, the lines court on an agreed statement of facts, prac. and boundaries of the said county, or maktically as above stated, and the court there- ing, or purporting or pretending to make, or upon rendered the following final judgment describe or bound any new county or counin said cause: “Now, on this 8th day of ties out of any part of the present territory May, 1907, the parties to the above-entitled of the said Woods county, or changing or in cause appeared in open court, by their re- any wise interfering with the said county or spective attorneys, and said cause was pre- the lines thereof or any townships or presented to the court upon the motion of the cincts therein, or any or either of the lines defendants to dissolve, vacate, and set aside of the said township or precincts; and enthe temporary injunction herein, and upon the joining and restraining the said C. I. Overdemurrer to the plaintiff's petition. Said street, C. H. Chowning, C. M. Delzell, M. R. cause was duly argued and fully presented Manstield, Charles Bowman, J. C. Major, I. and by the court taken under advisement J. Corwin, and Charles B. Powell from in until the 13th day of May, 1907. Thereup- any wise interfering with any of the duties on, on the 13th day of May, 1907, the parties of the county commissioners or county clerk, all appeared by their respective counsel as or any or either thereof, of the said county heretofore, and the court, being duly advised of Woods, in or about the election proposer in the premises, finds that the said motion to be held in said county on the 6th day of to dissolve the temporary injunction should August, 1907, and from in any wise interferbe overrulel, and also that the demurrers ing with the duties of the said county compresented to the plaintiff's petition should missioners or county clerk of said county of each be overruled; to each and all of which Woods, as the same is now described and rulings the defendants, and each of them. exists, in any of the preparations of any duly excepted. Thereupon, by leave of court. kind or character for said election, and enthe defendants filed their answer herein, and joining and restraining them from acting. the plaintiff filed and presented his motion to or attempting to act. in any capacity or to strike out the second paragraph of said an- any extent in any election to be upheld in swer, which motion. being duly presented, the pretended counties of Alfalfa or Major. was by the court overruled; to which the or either thereof, and that the defendants pay plaintiff excepted. Thereupon said cause the costs herein, taxed at
dollars; to was duly presented and submitted to the all and each part of which the defendants, court for final determination and judgment and each of them, duly except. Thereupon upon the agreed statement of facts and the the defendants, and each of them separately. evidence offered, and upon such submission present their motion for a ner trial of said the court, after due consideration, finds all cause, which motion is by the court, after of the issues in favor of the plaintiff and clue consideration, overruleal: to which the against the defendants and each of them; defendants, and each of them, duly except.