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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 earnestly contends that where oil is brought into the territory and inspected in accordance with the laws of the 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 certificate 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

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, cask, 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 ter ritory."

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 effect 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 eriminal 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.) 34 N. W. 904, the Supreme Court of Minnesota, in passing upon a similar question uses the following language: "In construing such statutes, we 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. Before conduct hitherto innocent can be adjudged to have been criminal, the Legislature must have defined the crime, and the act in question must clearly appear to be within the prohibitions or requirements of the statute, that being reasonably construed for the purpose of arriving at the legislative intention as it has been declared. It is not enough that the case may be within the apparent reason and policy of the legislation upon the subject, if the Legislature has omitted to include it within the terms of its enactments. What the Legislature has from inadvertence or otherwise omitted to inclule within the express provisions of a penal law, reasonably construed, the courts cannot supply."

State ex rel. Waters-Pierce Oil Co. v. Baggot (Mo.) 8 S. W. 737, was a proceeding in mandamus. and the question there arose whether oil could be transferred from a branded cask to an unbranded receptacle and sold from such unbranded receptacle, and the Supreme Court of Missouri, in passing upon this question, uses the following language: "We fail to find anything in the statute which prohibits the transfer of the fluid, in whole or in part, from a branded cask to an unbranded receptacle, or which prohibits the sale of it from such unbranded receptacle. Unless the law so declares, it may be done. Woodworth v. State, 4 Ohio St. 488; Cheadle v. State, Id. 478. The argument against this conclusion of most merit is that the detection of violations of the law will be rendered difficult. This may be true. to some extent; but it it is not the test by which the statute must be tried. The theory: of the respondent would prevent the sale of oils designed for illuminating purposes in any other way than in branded packages, so that the consumer would be required to buy a whole package or none. The law does not prohibit breaking bulk after inspection, for purposes of sale, and one inspection is

sufficient, and we conclude the retail dealers may purchase from branded tanks, and sell the same to consumers without any other or further inspection or branding."

In Waters-Pierce Oil Co. v. State (Ark.) 18 S. W. 57, the Supreme Court of Arkansas, in construing the statute of that state which provides that illuminating oils manufactured in or brought into the state, shall be inspected and approved by an authorized inspector, and the barrels, casks, and packages containing the same shall be branded by him with the words "Standard Oil," and which provides that if any person or persons in that state shall sell any of the fluids therein specified, without first having the same inspected by an authorized inspector of that state or some other state, shall be punished, etc., It was held that the statute, which must be strictly construed, does not prevent the owner, after his oil has been properly inspected and branded by an inspector of another

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2. SAME-OWNERSHIP BY COUNTY.

Under the separate school law, a county does not become the owner of the separate school buildings erected by the board of county commissioners, in the sense that the board of county commissioners may sell or dispose of the same as county property.

3. SAME-CONTROL AND MANAGEMENT.

Such buildings are under the control and management of the school officers of the districts in which they are erected, and the board. of county commissioners have no authority to direct which class of children shall attend school at either of the school buildings in such district, or to in any manner interfere with the school district officers in the control and management of the district schools.

(Syllabus by the Court.)

Error from from District Court, Oklahoma County; before Justice B. F. Burwell.

Action by School District No. 71, Oklahoma county. against Ed. Overholser and others. Judgment for defendants, and plaintiff brings error. Reversed and remanded.

This cause was determined in the court below on the following agreed facts.

On the 23d day of September, 1905, it was mutually agreed by and between the respective parties hereto in open court, that the following are the relevant facts in this case: That under the provisions of the separate school law of the territory of Oklahoma, the board of county commissioners of Oklahoma county, Oklahoma Territory, erected a building on the northwest quarter of section eleven (11), township fourteen (14) north of range one (1) east, to be known as a separate school for the benefit of either colored or white children, having the minority of children of school age of said district. That district No. 71 built a schoolhouse for the benefit of the white or colored children, having a majority of children in said district on the northwest quarter of section twelve (12) township fourteen (14) north of range one (1) east, which site was located by the

That since that time, for a period of six years, said school district has kept said school building in repairs, repainting the same twice, caused to be dug and furnished a well for the school purposes, for said schoolhouse, caused the building to be insured for the said term of seven years, and caused to be expended for that the sum of $25, and that, at the time the order of the board of county commissioners was made. that furniture belonging to said school district and purchased by them, as stated above. was inside said building. That the seats are moveable seats. That one of the terms of the insurance policy is that, in case the said building is used for other than school purposes, said policy can be canceled upon the option of the insurer. That this schoolhouse is worth about $500. That since the construction of said separate school building by the said board of county commissioners. said district, for the purpose of accommodating the pupils therein, were compelled to. and did, construct an addition thereto, 16 by 18 feet, of the value of $200, and the following is the order of the board of county commissioners: Oklahoma City, O. T., Sept. 5, 1905. Mr. James Graham, Luther, O. T.Dear Sir: We are informed that the colored people of your district are the district school, but that you are holding said school in the building owned by the county; that the white people are the separate school, and said school is held in the district building. We have secured for the separate school a building located on the southeast quarter of section 2, township 13, 1 east, on the farm of F. W. Lane, in exchange for which we have given Mr. Lane the use of the county school building. It is therefore ordered that you take your district school to the district

vote of the electors of said district in a regular meeting held for said purpose. That previous to said time, a building had been erected on the southeast corner of section two (2) township fourteen (14) north of range one (1) east, which schoolhouse had been erected by one Lane, who was an officer of said school district at said time, supposing at that time that bonds had been regularly issued for the building thereof, but it was afterwards decided that said bonds were not valid, and said schoolhouse has stood in the name of F. W. Lane since said time, but said building is a fit building for school purposes with the exception of seats, said building only having temporary seats. That said schoolhouse on the northwest quarter of section 12, township 14, north of range 1 east, was built by the entire district. That at the time built the county commissioners of Oklahoma county, Oklahoma Territory, built said schoolhouse for the minority scholars of said district, on the northwest quarter of section 11, township 14, range 1 east, the colored school population of said district was in the minority; but at this time, and for some time past, the colored population of said district has the majority school population of said district. School District No. 71, has no interest in the schoolhouse on the Lane land herein above described. That notwithstanding the colored scholars of said district are now in the majority, they having been using the separate schoolhouse on the northwest corner of section 11, township 14 N., range 1 east. for the holding of their school therein, with the consent of a majority of the board of said district and the county commissioners of said county. That on representations made to the board of county commissioners on September 5, 1905, the board of county commissioners rented for a sep-building, and hold the county school in the arate school in said district the school building erected on the Lane farm, situated in the southeast corner of section 2, township 14 N., range 1 east, and rented the building built by the county for a separate school building, on the northwest corner of section 11, township 14 N., range 1 east, to the defendant F. W. Lane, and that the rental of said building for said purpose was in consideration of the use by said Lane of the separate school building erected by the county, as aforesaid. That Lane, under said agreement with the board of county commissioners, took possession of the said separate school building, and placed in possession thereof the defendant Claude Pyle, and that the time he took possession of said building, school was being held in said building by the colored school population of said district, and the said board of county commissioners ordered the removal of said school to the building rented by them for that purpose. That, at the time of the construction of said building by the county for said school purposes, the district furnished the same at an expense of about $136.

building on Mr. Lane's place. By order of Board of County Commissioners. Ed Overholser, Chairman."

Grant Stanley, for plaintiff in error. R. G. Hayes, County Atty., and J. W. Webb, for defendant in error.

GILLETTE, J. (after stating the facts). Under the foregoing agreed statement of facts, it is manifest the only question presented to this court for its determination is as to the powers of the board of county commissioners over the separate school buildings erected in the several school districts of the county by the board of county commissioners, under the separate school law. It is contended by the counsel for the defendants in error that after such buildings are erected by the board of county commissioners, and after they are turned over to the school board of the school district in which they are situated, and have been taken possession of, furnished, equipped, and occupied by the school district for the purposes for which they were erected, they still remain the property of the county and are subject to the control and disposition

of the board of county commissioners, the same as all other property of the county. In this contention we cannot agree with counsel. The error of counsel's reasoning in this case arises from the assumed property status of the separate school buildings, erected by the county commissioners under the separate school law. Separate school buildings, their grounds, and furnishings, are not, under the law, property in the sense of being the subject of private ownership and control. They are created by the exercise of the sovereign power of the territory, and are not subject to be bought and sold or exchanged in the same manner and in the same sense that property may be owned and transferred by private individuals or corporations, for profit. School districts do not own a school building and grounds in the sense that it may sell or exchange or dispose of it except for the purpose of renewing or bettering the school facilities of the district and for the same reason a county acting through its board of county commissioners, having erected a school building as provided in the separate school act of March 8, 1901, cannot sell or exchange or dispose of it as mere county property. See Kingfisher Board of Education v. County Commissioners, 14 Okl. 333. 78 Pac. 458, where the court says: "The error in this contention grows out of the fact that by the statement of it there is an assumption that the board of education of Kingfisher has a status so disconnected from the territory as that it has such property rights as are possessed by private corporations, or corporations for profit. This is not the status of a school district. School districts are quasi public corporations, and they raise funds for school purposes by the exercise of the taxing power of the territory. They are simply the agencies of the higher power. On behalf of the territory they cause taxes to be levied out of which schoolhouses are constructed, and such acts when performed by a school district are part of the general exercise of sovereignty which the territory exercises over its entire domain; and it cannot say, after the exercise of such power, that the property and rights so acquired belong to the district independent of the territory. ***"

It is the territory which is interested in and providing for the education of all the children within its limits, and this includes the colored children as well as the whites, and when the county commissioners have once complied with the law by acquiring a site and erecting a school building thereon for the purpose of a separate school, and the same has been accepted, furnished, and made use of by the school district, the authority of the county commissioners over such building is ended and concluded, so long as the same is used by the school district for the purpose for which it was erected. Such school buildings are erected and

the school site bought or condemned by the county exercising the sovereign power of the territory for that purpose, and when completed and delivered over to the district are rot further subject to the will or control of the board of county commissioners touching their use or ownership. From that time the building and grounds pass the control of the school district, and the school board alone has charge and control of them, and must answer for the manner of such use and control, to the law in such case made and provided, and not to the direction or behest of the board of county commissioners. In the case we are now considering, the county commissioners of Oklahoma county in 1899 procured a site and caused to be erected thereon a school building for the use of the separate school children in district No. 71 in said county. At that time the colored children constituted the class "fewest in number" in said district. The district officials accepted the grounds and building so furnished by the county, and the same has since been occupied and used by the district as and. for the colored school of said district. Since receiving it, the school district has furnished the building with school furniture at an expense of $136, insured it at an expense of $25, had a well dug, and twice repainted the building, and finally built an addition thereon at an expense of $200. It would be a strange doctrine of property rights, if, after all this the county owns the site, building and furnishings in the sense that the board of county commissioners may sell or exchange the same for other property without any reference to the needs of the school district, and without the consent of the district officials. The object and purpose of the law was to provide equal school facilities for both the white and colored children, where both exist in any district in the territory, but in separate school buildings, and without imposing upon the district having separate schools the expense of two school buildings, and the maintenance of two schools in the same district. Under the law we are considering, this is accomplished by the county at large being to the expense of furnishing the grounds and building for the separate school and the payment of teachers' wages. Beyond that, the districts having such separate schools must furnish the building with the same class of school furniture made use of in the building erected by the district, and the two schools are to be kept and run upon an equal footing. See sections 6284 to 6286, inclusive, Wilson's Rev. & Ann. St. 1903. Nowhere have we been able to find any provision of the law which by any reasonable construction can be held to mean that the county commissioners are to be possessed of the power and authority to regulate and control the use of the school buildings erected at the expense of the county, 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 officers 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 fol lows 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 occupancy 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 be remanded with directions 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 making said temporary injunction perpetual. All the Justices concurring, except BURWELL, J., who presided in the court below, not sitting.

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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 judgment was rendered.

[Ed. 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 deed 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, § 4006.]

(Syllabus by the Court.)

Error 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. Petherbridge, and John

B. Howery: 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. short time after the commencement of the action Robert L. Shannon died, and John L. Shannon was appointed administrator of the estate of Robert L. Shannon, deceased, and was substituted in said action as party plaintiff. Later, a will of Robert L. Shannon was discovered, and after the same had been probated, Edward M. Shannon, sole devisee of Robert L. Shannon, was substituted as party plaintiff; he 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 $1.250. 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 from the evidence that John B. Howery 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, 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

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