Sauer v. McMurtry Ex Rel. , 4 Okla. 447 ( 1896 )

The opinion of the court was delivered by This cause was consolidated on September 17, 1895, in this court, with the case of Hoffman v. The County Commissioners etal., on motion, upon the hearing of which it appeared that the questions involved in each of the cases were identical.

That case having been decided then, (see 3 Okla. 325, 41 Pac. Rep. 566), in an opinion very full and elaborate, covering the whole history of the legislation and laws applicable to the question involved, from the act of congress of July 30, 1886, down to the statutory provisions of the Territory of Oklahoma, and the congressional acts up to the present time, it is unnecessary to repeat here what was therein held, or to enter into a discussion of the conclusions therein reached, or their application to a point involved in this case.

From the foregoing statement of the facts in this proceeding there appears but one question for determination, which is substantially this: Are county warrants issued by counties in Oklahoma for lawful purposes, prior to the making of the first assessment for the purposes of taxation, invalid? It is maintained here, as in that case, that the counties and municipalities of the Territory of Oklahoma are incapable of legally contracting indebtedness of any kind or for any purpose until an assessment for the purpose of taxation has been made, equalized and approved as required by law, and that all warrants issued prior to the taking of said assessment are void for any and all purposes, and neither the subject of funding into bonds or payment in money.

The injunction granted by the court below in this case restraining the county treasurer from the payment, or the commissioners from funding into bonds the warrants involved in controversy, can be sustained only on the ground that the question is governed by § 4 of the act of congress of July 30, 1886, without any conditions or limitations upon its application to the counties and municipalities in the Territory of Oklahoma. Section 4 of that statute reads as follows:

"That no political or municipal corporation or any other subdivision in any of the territories of the United States shall ever become indebted in any manner or for any purpose to any amount in the aggregate, including existing indebtedness, exceeding four per centum on the value of the taxable property, within such county or subdivision, to be ascertained by the last assessment for territorial and county purposes previous to the incurring indebtedness, and all bonds or obligations in excess of such amount given by such corporation shall be void."

The court, in passing upon that case, held that all counties, municipal corporations, and other subdivisions in the Territory of Oklahoma, created and existing under and by virtue of the Organic Act and the Territorial Statutes have the power, prior to the taking of the first assessment of the taxable property for Territorial and county taxation to contract indebtedness for all necessary and legitimate purposes, to an amount equal to four per centum of the value of the taxable property within said corporation, county, or subdivision, to be determined by the last assessment taken for the purpose of Territorial and county taxation, and to issue warrants in evidence thereof.

Roger Mills county was created and became an organized and existing corporation in strict conformity to the laws of congress and the Organic Act, and the Statutes of the Territory of Oklahoma, on April 19, 1892. It is conceded by counsel, in this case, that no assessment had been taken, nor was there one in existence during the period within which the warrants in dispute were issued. It is also conceded that the warrants were issued for necessary and legitimate purposes, and unless they are void by reason of having been issued prior to the taking of the first assessment for taxation are binding upon said county.

It is therefore concluded that it was and is the duty of the county treasurer to pay the warrants in controversy with any money held by him for the purpose of paying the warrant indebtedness of the county. And that they are legal, and capable of being funded into bonds, should the proper authorities see fit to do so. The judgment of the lower court is accordingly reversed.

McAtee, J, who presided in the court below, not sitting; all the other Justices concurring.