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stored beyond the limits of the territory, should be reinspected before it can be sold within the territory. It is contended by the Attorney General, on behalf of the territory, that under such circumstances a reinspection is required, and the court below so held. On the other hand, counsel for plaintiff in error carnestly contends that where oil is brought into the territory and inspected in accordance with the laws of tlie territory, and is held in storage outside of the territory, and then sold to consumers within the territory, that it may be so sold within the territory without a second inspection. A determination of this question involves an examination and interpretation of the laws of this territory with reference to the inspection of oil.

Section 1 of c. 17, p. 180, of the acts of the Legislature of Oklahoma of 1903 is as follows: "That all oils and liquids, the product of coal, petroleum or other bituminous substances or into which the product of petroleum enters, by whatever name called, which may or can be used for illuminating, heating or power purposes, manufactured in this territory, or brought into it, shall be inspected by an authorized inspector of this territory, before the same are consumed, used, sold or offered to be sold, or disposed of to merchants, consumers or other persons within this territory."

Section 3 of said act provides that: "It shall be the duty of the said territorial inspector of oils, or his deputies hereinafter provided for, to examine and test within this territory, the safety and quality of all oils before the same shall be offered for sale by the manufacturer, vendor, or dealer, and if, upon such examination and testing, they shall meet the requirements hereinafter specified, in all cases where the oils inspected are in tanks, reservoirs, barrels, or casks, he shall issue his certificate to the person or agent in possession of such oil, certifying that said oils have been inspected and approved or rejected, as the law provides, before the same has been mixed with other oils of like tests, and inserting in said certifi(ate the actual test. And, where oils are found in packages, barrels or casks, then he shall fix his brand, giving the actual test with the date of his official signature, upon the package, barrel or cask containing the same. If such oils, so examined or tested, shall not meet the required test as hereinafter specified, the words 'unsafe, rejected.' shall be marked in plain letters on the package, barrel. (ask, reservoir or tank containing the same."

Section 8 (page 184) of said act provides as follows: “If any person in this territory shall use, sell, or dispose of to merchants, consumers, or any other person or persons within this territory, any of the oils or fluids specified in section one of this act, without the same having been first inspected by an authorized inspector of this territory, and the barrels, casks, or packages containing the

same branded by him as provided in this act, said person so offending shall be punished by a fine not exceeding one hundred dollars for each barrel, cask or package of oils or fluids aforesaid so used by, sold or offered for sale to merchants, consumers, or any other person or persons, within this territory."

Section 15 (page 188) of said act provides as follows: "The provisions of this law shall not apply to oils or fluids brought into this territory in transit for shipment to and consumption in other states or territories."

It will thus be seen from an examination of the provisions of our statute bearing upon this question, that before oil that is brought into the territory can be sold to consumers therein, it must be inspected and branded by the duly authorized inspector, and that a violation of any of the provisions of the statute is made a high penal offense. It is admitted by the agreed statement of facts that the oil in controversy was regularly inspected by the oil inspector of Oklahoma, at Oklahoma City, and that thereafter the oil was stored in the warehouse of the plaintiff in error at Chickasha. It is also admitted that the two barrels of oil that were attempted to be sold to the plaintiff's consumers at Cement, Okl., was the identical oil, in the identical barrels, inspected by the oil inspector at Oklahoma City.

We are unable to find any provision in the statute which requires a second inspection of oil, where it has been once regularly inspected. It being admitted that the identical oil was inspected and stored in the warehouse at Chickasha, Ind. T., and subsequent ly a part of the same oil, contained in the same barrels, was attempted to be sold in Oklahoma, in such circumstances we think one inspection satisfied the requirements of the statute, and that no second inspection was required. The law, with reference to the inspection of oils, was enacted to protect the public against the sale of unsafe and dangerous oils, and for those purposes is a remedial statute, to be interpreted so as to reasonably carry into effert its objects. Prior to the enactment of such statutes, it was not an offense to sell impure oils. In other words, it is a purely statutory crime, and is not a crime in itself. And the statute was not intended to make an act (riminal which was prior to its enactment lawful, unless it is clearly shown that such act falls within the prohibition of the statute. We think this doctrine is fully sustained by the courts that have had this subject under consideration.

In State v. Finch (Minn.) 31 X. W.904, the Supreme Court of Minnesota, in passing upon a similar question uses the following language: “In construing such statutes, should be careful to distinguish between what may have been desirable in the enactment in order that it should effectually accomplish its purpose, and what has been

really prohibited or commanded by it. Be. state, from transferring it to another refore conduct bitherto innocent can be ad- ceptacle, and selling it therefrom without rejudged to have been criminal, the Legislature inspection and rebranding. Applying the must have defined the crime, and the act principles announced in these cases to the adin question must clearly appear to be within mitted facts upon which this case was tried, the prohibitions or requirements of the stat- we are clearly of the opinion that the plainute, that being reasonably construed for the tiff was entitled to the relief prayed for, purpose of arriving at the legislative inten- and therefore the court erred in rendering tion as it has been declared. It is not judgment for the defendant. enough that the case may be within the ap- The judgment of the district court is reparent reason and policy of the legislation rersed, and the cause remanded, with direcupon the subject, if the Legislature hastions to render judgment for the plaintiff. omitted to include it within the terms of its enactments. What the Legislature has BURFORD, C. J., who presided in the from inadvertence or otherwise omitted to court below, not sitting. All the other Jusinclu le within the express provisions of a tices concurring. renal law, reasonably construed, the courts cannot supply." State ex rel. Waters-Pierce Oil Co. v. Bag

(17 Okl. 147) got (0.) SS. W. 737, was a proceeling in

SCIIOOL DIST. No. 71 v. OVERHOLSIOR mandamus. and the question there arose

et al. Whether oil could be transferred from a

(Supreme Court of Oklahoma. Sept. 5, 1906.) branded cask to an unbranded receptacle and

1. SCHOOLS AND SCHOOL DISTRICTS. sold from such unbranded receptacle, and the

Separate Schools. Who may control the

same. Supreme Court of Missouri, in passing upon

2. SAVE-OWNERSHIP BY (OUXTY. this question, uses the following language: Under the separate school law, a county "We fail to find anything in the statute ; does not become the owner of the separate which prohibits the transfer of the fluid, in

school buildings erected by the board of county whole or in part, from a branded cask to an commissioners, in the sense that the board of

county commissioners may sell or dispose of unbranded receptacle, or which prohibits the the same as county property. sale of it from such unbranded receptacle. 3. SAJE-CONTROL AND MANAGEMENT. I'nless the law so declares, it may be done. Such buildings are under the control and Woolworth v. State, 4 Ohio St. 489; Cheadle

management of the school officers of the vis

tricts in which they are erected, and the board v. State. Id. 178. The argument against

of county commissioners have no authority to this conclusion of most merit is that the direct which class of children shall attend iletertion of violations of the law will be school at either of the school buildings in such renlere difficult. This may be true, to

district, or to in any manner interfere with

the school district officers in the control and some extent; but it it is not the test by

management of the district schools. which the statute must be tried. The theory (Syllabus by the Court.) of the respondent would prevent the sale of

Error oils designed for illuminating purposes in

from District

District Court. Oklahoma

County; lefore Justice B. F. Burwell. any other way than in branded packages,

Action by School District No. 71, Oklaso that the consumer would be required to buy i wbole package or none. The law does

homa county, against Ed. Overholser and not prohibit breaking bulk after inspection,

others. Judgment for defendants, and plain

tiff brings error. Reversed and remanded. for purposes of sale, and one inspection is sufficient, and we conclude the retail dealers This cause was determined in the court may purchase from branded tanks, and sell below on the following agreed facts. the same to consumers without any other or

On the 230 day of September, 1905, it was further inspection or branding."

mutually agreed by and between the respecIn Waters-l'ierre Oil Co. r. State (Ark.) 18 tive parties hereto in open court, that the folS. W. 57, the Supreme Court of Arkansas, in lowing are the relevant facts in this case : construing the statute of that state which That under the provisions of the separate provides that illuminating oils manufactured school law of the territory of Oklahoma, the in or brought into the state, shall be inspect-board of county commissioners of Oklahoma ed and approved by an authorized inspector, county, Oklahoma Territory, erected a buildand the barrels, casks, and packages contain- ing on the northwest quarter of section eleven ing the same shall be branded by him with (11), township fourteen (14) north of range one the words "Standard Oil," and which pro- (1) east, to be known as a separate school vides that if any person or persons in that for the benefit of either colored or white state shall sell any of the fluids therein spec- children, having the minority of children of ified, without first having the same inspect- school age of said district. That district ed by an authorized inspector of that state No. 71 built a schoolhouse for the benefit or some other state, shall be punished, etc., of the white or colored children, having It was held that the statute, which must be a majority of children in said district on the strictly construed, does not prevent the own- northwest quarter of section twelve (12) er, after his oil has been properly inspected township fourteen (11) north of range one and branded by an inspector of another (1) east, which site was located by the

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vote of the electors of said district in a reg. That since that time, for a period of six ular meeting held for said purpose.

That years, said school district has kept said previous to said time, a building had been school building in repairs, repainting the erected on the southeast corner of section same twice, caused to be dug and furnished two (2) township fourteen (1.1) north of

а well for the school purposes, for said range one (1) east, which schoolhouse had schoolhouse, caused the building to be inbeen erected by one Lane, who was an of- sured for the said term of seven years, and ficer of said school district at said time, sup- caused to be expended for that the sum of posing at that time that bonds had been reg- $25, and that, at the time the order of the ularly issued for the building thereof, but board of county commissioners was made. it was afterwards decided that said bonds that furniture belonging to said school diswere not valid, and said schoolhouse has trict and purchased by them, as stated above. stood in the name of F. W. Lane since said was inside said building. That the seats time, but said building is a fit building for are moveable seats. That one of the terms school purposes with the exception of seats, of the insurance policy is that, in case the said building only having temporary seats. said building is used for other than school That said schoolhouse on the northwest quar- purposes, said policy can be canceled upon ter of section 12, township 14, north of range the option of the insurer. That this school1 east, was built by the entire district. That house is worth about $5500. That since the at the time built the county commissioners construction of said separate school building of Oklahoma county, Oklahoma Territory, by the said board of county commissioners, built said schoolhouse for the minority said district, for the purpose of accommodatscholars of said district, on the northwest ing the pupils therein, were compelled to. quarter of section 11, township 14, range 1 and did, construct an addition thereto, 16 east, the colored school population of said by 18 feet, of the value of $200, and the district was in the minority ; but at this time, following is the order of the board of county and for some time past, the colored popula- commissioners: Oklahoma City, 0. T., Sept. tion of said district has the majority school 5, 1905. Mr. James Graham, Luther, O. T.-population of said district. School District Dear Sir: We are informed that the colorer No. 71, has no interest in the schoolhouse on people of your district are the district school, the Lane land herein above described. That but that you are holding said school in the notwithstanding the colored scholars of said building owned by the county; that the district are now in the majority, they having white people are the separate school, and been using the separate schoolhouse on the said school is held in the district building. northwest corner of section 11, township 14 We have secured for the separate school a N., range 1 east. for the holding of their building located on the southeast quarter of school therein, with the consent of a majority section 2, township 13, 1 east, on the farm of the board of said district and the county of F. W. Lane, in exchange for which we commissioners of said county. That on repre- have given Mr. Lane the use of the county sentations made to the board of county com- school building. It is therefore ordered that missioners on September 5, 1905, the board you take your district school to the district of county commissioners rented for a sep- building, and hold the county school in the arate school in said district the school build- building on Mr. Lane's place. By order of ing erected on the Lane farm, situated in the Board of County Commissioners. Ed Oversoutheast corner of section 2, township 14 holser', Chairman." N., range 1 east, and rented the building

Grant Stanley, for plaintiff in error. R. built by the county for a separate school

G. Hayes, County Atty., and J. W. Webb, building, on the northwest corner of section

for defendant in error. 11, township 14 N., range 1 east, to the defendant F. W. Lane, and that the rental of GILLETTE, J. (after stating the facts). said building for said purpose was in con- I'nder the foregoing agreed statement of sideration of the use by said Lane of the facts, it is manifest the only question preseparate school building erected by the coun- sented to this court for its determination is ty, as aforesaid. That Lane, under said as to the powers of the board of county comagreement with the board of county com- missioners over the separate school buildings missioners, took possession of the said sep- erected in the several school districts of the arate school building, and placed in posses- county by the board of county commissioners, sion thereof the defendant Claude Pyle, and under the separate school law. It is contendthat the time he took possession of said ed by the counsel for the defendants in error building, school was being held in said build- that after such buildings are erected by the ing by the colored school population of said board of county commissioners, and after they district, and the said board of county com- are turned over to the school board of the missioners ordered the removal of said school district in which they are situated, and school to the building rented by them for have been taken possession of furnished, that purpose. That, at the time of the con- equipped, and occupied by the school district struction of said building by the county for the purposes for which they were erected, for said school purposes, the district furnish- they still remain the property of the county ed the same at an expense of about $136. and are subject to the control and disposition

of the board of county commissioners, the the school site bought or condemned by the same as all other property of the county. In county exercising the sovereign power of the this contention we cannot agree with counsel. territory for that purpose, and when comThe error of counsel's reasoning in this case pleted and delivered over to the district are arises from the assumed property status of lot further subject to the will or control of the separate school buildings, erected by the the board of county commissioners touching county commissioners under the separate their use or ownership. From that time the school law. Separate school buildings, their building and grounds pass the control of the Tounds, and furnishings, are not, under the school district, and the school board alone law, property in the sense of being the sub- has charge and control of them, and must ject of private ownership and control. They answer for the manner of such use and conare created by the exercise of the sovereign trol, to the law in such case made and propower of the territory, and are not subject vided, and not to the direction or behest of to be bought and sold or exchanged in the the board of county commissioners. In the Säme manner and in the same sense that

case we are now considering, the county comproperty may be owned and transferred by missioners of Oklahoma county in 1899 proprivate individuals or corporations, for prof- cured a site and caused to be erected thereit. School districts do not own a school on a school building for the use of the sepbuilding and grounds in the sense that it may arate school children in district No. 71 in said sell or exchange or dispose of it except for county. At that time the colored children the purpose of renewing or bettering the constituted the class "fewest in number" in school facilities of the district and for the said district. The district officials accepted same reason a county acting through its board the grounds and building so furnished by cf county commissioners, laving erected a the county, and the same has since been school building as provided in the separate occupied and used by the district as and school act of March 8, 1901, cannot sell

for the colored school of said district. Since or exchange or dispose of it as mere county

receiving it, the school district has furnished property. See Kingfisher Board of Education

the building with school furniture at an ex1. County Commissioners, 14 Okl. 333. 78

pense of $136, insured it at an expense of Pac. 458, where the court says: "The error

$25, had a well dug, and twice repainted the in this contention grows out of the fact that

building, and finally built an addition thereby the statement of it there is an assumption

on at an expense of $200. It would be a that the board of education of Kingfisher

strange doctrine of property rights, if, after lias a status so disconnected from the terri

all this the county owns the site, building tory as that it has such property rights as

and furnishings in the sense that the board itre possessed by private corporations, or cor

of county commissioners may sell or exporations for profit. This is not the status

change the same for other property without of a school district. School districts are

any reference to the needs of the school disquasi public corporations, and they raise

trict, and without the consent of the district funds for school purposes by the exercise of

officials. The object and purpose of the the taxing power of the territory. They

law was to provide equal school facilities are simply the agencies of the higher power.

for both the white and colored children, On behalf of the territory they cause taxes

where both exist in any district in the terto be levied out of which schoolhouses are

ritory, but in separate school buildings, and constructed, and such acts when performed

without imposing upon the district having by a school district are part of the general

separate schools the expense of two school exercise of sovereignty which the territory

buildings, and the maintenance of two exercises over its entire domain; and it

schools in the same district. Under the law cannot say, after the exercise of such power,

we are considering, this is accomplished by that the property and rights so acquired be

the county at large being to the expense of long to the district independent of the ter

furnishing the grounds and building for the ritory. * * * "

separate school and the payment of teachers' It is the territory which is interested in

wages. Beyond that, the districts having and providing for the education of all the

such separate schools must furnish the buildchildren within its limits, and this includes the colored children as well as the whites,

ing with the same class of school furniture

made use of in the building erected by the and when the county commissioners have

district, and the two schools are to be kept once complied with the law by acquiring a

and run upon an equal footing. See sections site and erecting a school building thereon

6281 to 6286, inclusive, Wilson's Rev. & for the purpose of a separate school, and

Ann. St. 1903. Nowhere have we been able the same has been accepted, furnished, and

to find any provision of the law which by inade use of by the school district, the au

any reasonable construction can be held to thority of the county commissioners over

mean that the county commissioners are such building is ended and concluded, so

to be possessed of the power and authority long as the same is used by the school dis

to regulate and control the use of the school trict for the purpose for which it was erect- buildings erected at the expense of the couned. Such school buildings are erected and ty, and determine which of the two classes

of children shall attend school in the building erected by the county, or in any other building. The school districts and the district school board are alone possessed of this authority, and the county commissioners are not school oslicers in any sense of the word, and neither the county nor the school districts own the school buildings in the sense that property is owned by a private person, or a corporation for profit. It follows from these views that the county commissioners had no power or authority to exchange the building erected by the county for the use and benefit of district No. 71 in Oklahoma county, for any other building, and no right to dictate to or interfere with the school board of said district in the oc(upancy and use of either of the school buildings in said district, by directing which class of children should occupy the one or the other.

The judgment of the court below must therefore be reversed, and the cause de l'emanded with direitions to set aside the judgment entered therein, sustaining the motion of defendants in error to dissolve the injunction therein issued, and to enter an order overruling said motion, and milking said teinporary injunction perpetual. All the Justices concurring, except BU'RWELL, J., who presided in the court below, not sitting.

(17 Okl. 507)


Under our statute, when a referee is to report the facts, the report has the same force and effect as a special verdict of a jury.

TEd. Vote.--For cases in point, see Cent. Dig. vol. 42, Reference, SS 153, 154.] 2. SAJE.

Where a cause is referred to a referee. by and with the consent of the parties, to hear and determine the same, and to report his findings of fact and conclusions of law thereon, and such report is subsequently confirmed and approved by the court, the judgment will not be set aside as being against the evidence, although the evidence is conflicting, and if there is sufficient evidence to sustain the findings of fact upon which the juilgment was rendered.

[11. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, $$ 4015--4018.] 3. SAME.

The credibility of the witnesses and the probative force of the facts as to the mental capacity of the grantor to execute a deeil were for the determination of the referee and the trial court, and, it appearing that there was legal and sufficient evidence to support the findings, they will not be disturbed on appeal.

Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, $ 1006.)

(Syllabus by the Court.)

B. IIowery: J. C. Petherbridge, as administrator, being substituted in place of William Shannon, now deceased. Judgment for defendants, and plaintiff brings error. Affirmed.

This was an action brought in the district court of Oklahoma County, by Robert L. Shannon, by his guardian, John L. Shannon, against William Shannon and John B. Howery, the object of which was to set aside a deed to a quarter section of land, on the ground that the grantor was insane at the time that he executed the deed therefor. A short time after the commencement of the action Robert L. Shannon died, and John 1. Shannon was appointed administrator of the estate of Robert L. Shannon, deceased, and was substituted in said action as party plaintifl. Later, a will of Robert L. Shannon was discovered, and after the same had been probated, Edward M. Shannon, sole derisee of Robert L. Shannon, was substitutel as party plaintiff; le having appeared in said action by his next friend, John L. Shannon. The court, by and with the consent of the parties, referred the cause to J. H. Everest as referee, with full power to report his findings of fact and his conclusions of law thereon. At the conclusion of the trial, the referee made the following specific findings of fact: "I therefore find specifically that the plaintiff has failed to prove, all of the evidence in the record considered, that Robert L. Shannon was of unsound mind, and incapable of understandingly entering into this contract of conveyance on August 5, 1893, the date when the deed was made; second. I find, as a matter of fact, that the plaintiff has failed to prove, by a preponderance of the evidence, the allegation in his petition that the defendant William Shannon never paid the said grantor, Robert L. Shannon, any consideration for the conveyance of said tract of land to him; third, I find that the plaintiff has failed to show, by a fair preponderance of the evidence, that $1.2.0, the sum recited as the consideration for which said deed was made from Robert L. Shannon to William Shannon, was a grossly inadequate consideration for the sale and transfer of said land; fourth, I find froin the evidence that John B. lIowery purchased the tract of land in controversy from his codefendant, William Shannon, on the 11th day of March, 1901, and that he paid a fair and valuable consideration therefor,

therefor, and that there is no evidence of fraud or collusion in the said transfer from William Shannon to John B. Howery." The referee concluded, as a matter of law, that the deed executed on August 5, 1893, for the land in controversy, conveyed all the right, title, and interest of the grantor to the grantee therein, and that the defendant John B. Howery was a subsequent purchaser in good faith and for a valuable consideration. The findings of fact and conclusions of law were

Irror from District Court, Oklahoma County: before Justice B: F. Burwell.

Action by Edward M. Shannon, by his next friend, John L. Shannon, against William Shannon, J. C. l'etherbridge, and John

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