Wilhite v. Mansfield , 23 Okla. 246 ( 1909 )

The act of the Legislature of the territory of Oklahoma, approved March 8, 1901 (Sess. Laws 1901, p. 187, c. 28, art. 1 [Wilson's Rev. Ann. St. 1903, §§ 6219-6223]), provides that each county in the territory of Oklahoma having a population of 6,000 inhabitants or over may establish a high school, the same to be located at a place in such county to be determined by the voters thereof; that the county commissioners shall appoint trustees for such high school, and that the superintendent of such county shall be ex officio president of such board of trustees; that said board of trustees shall make an itemized estimate of the amount of funds needed for buildings, payment of teachers' wages, and contingent expenses, and present to the board of county commissioners a certified estimate of the rate of tax required to raise the amount for such purposes. Said act was extended to and remained in force in the state of Oklahoma after its admission into the Union (Schedule to the Constitution, § 2 [Bunn's Ed. § 451]).

Section 20 of the Schedule to the Constitution (Bunn's Ed. § 469), provides that the Legislature shall provide by general, special, or local law for the equitable division of the property, assets, and liabilities of any county existing in the territory of Oklahoma between such county and any new county or counties created in whole or in part out of the territory of such county. Section 32 of the Schedule also provides that the Legislature shall provide by general, special, or local law for the equitable division of the property, assets, and liabilities of any school district existing in the territory of Oklahoma between such school district and any new school district created in whole or in part of the territory of any such school district as may be affected by a change in the county boundaries under the Constitution.

It is evident from the foregoing provisions that it was the intention of the constitutional convention that schoolhouses, as assets of school districts, should bear the same relation, when situated in a portion of the district segregated and included in a new county, as a county high school building when located in that portion segregated from the parent county and included in a new county. That portion of such school district that may be segregated and included in a new county, as an entity, is to be recognized as such by the Legislature in providing for an equitable apportionment of the assets between it and the remaining portion of such district remaining in the parent county.

In the case of Winslow v. France, 20 Okla. 303, 94 P. 691, this court said:

"It is well settled that if a new county is created out of the territory of an old county, or if part of its territory or inhabitants is annexed to another county, unless some provision is made in the act respecting the property and existing liabilities of the old county that the old county owns all the public property except such as may be located within the detached territory."

The county high school building in this case is located within that portion of the territory detached from the parent county and included in Alfalfa county. The county high school building and the place or land upon which same may be located is public property, and under the rule laid down in the case ofWinslow v. France, supra, subject to the authority of the Legislature to otherwise provide, the building and the site became the property of Alfalfa county, and in accordance with section 20 of the Schedule supra, bears the same relation to Alfalfa county that a school district, under section 32 of the Schedule, supra, when located in the detached territory, would bear to such detached district. Such school building would be a school building for that portion of the detached school district, and the high school building here involved in like manner becomes the high school building for that portion of the territory formerly embraced in Woods county that was detached and now comprises the county of Alfalfa.

Section 9, art. 10 (section 275, Bunn's Ed.; Snyder's Ed. p. 299), of the Constitution, provides that "any county may levy not exceeding two mills for county high school and aid to the common schools of the county, not over one mill of which shall be for the high school. * * *" The act of the Legislature of Oklahoma Territory approved March 8, 1901, supra, is subject to this tax limitation, but, except as said act is repugnant to said provision of the Constitution, it applies, and furnishes a rule for the maintenance and government of county high schools then or thereafter to be established.

It is an approved rule of construction that an instrument must be considered as a whole, in order that the intent thereof may be ascertained, and this construction must be made, if it reasonably can, with a view of giving effect to every provision thereof. To enable one to reach a proper determination as to the meaning of such provisions, we may look to the general purposes that were sought to be accomplished by such instrument. See Nance v. Southern Ry. Co. (N.C.) 63 S.E. 116. Upon the admission of a territory into the Union, under a Constitution and a government organized thereunder, the original territorial government is displaced, and all its powers, jurisdiction, and machinery abrogated, except as the same are continued in force by virtue of some provision of the Constitution. It was the general purpose of the Constitution of Oklahoma to continue in force the territorial government, except as it was repugnant to some of its provisions, until otherwise provided by some act of the Legislature. The law by which county high schools were created was continued in force, and high school buildings, when new counties were created out of territory detached from old counties, falling within the territory included within the new county, became the property of the new county. Bridges, likewise, when located on highways in territory detached and included in new counties, became the property of the new county. School buildings, when included in that portion of school districts detached and included in a new county, became the property of the school district in the county, and by the continuance of the laws under which the bridges were built and maintained, and the schoolhouses and the high school buildings were constructed and maintained, it was the intent that such bridges, schoolhouses, and high school buildings should be maintained and supported in the future, and not discontinued.

To contend that the county high school remained as the high school of Woods county without a high school building, or the control or ownership of the place or site on which it was located, if sustained would lead to absurd results. Evidently it was the purpose of the framers of the Constitution that local governments should neither be destroyed, disarranged, nor interfered with, except where such changes were incident to the change in the form of government, or where the statute by virtue of which they existed and were maintained was repugnant to some provision of the Constitution. School district, township, and municipal governments, and county high schools in counties that were not divided, beyond any question were preserved and brought over by the provisions of the Constitution. And, where a county high school was located within territory detached from the parent county and included in a new county, it was not contemplated by the constitutional convention that statehood should be destructive of such high school. The high school building and site in question became the property of Alfalfa county, and, for the reasons hereinbefore set out, we conclude that it is the duty of the county commissioners of said county to appoint trustees thereof, the county superintendent of said county becomingex officio president of said board.

The writ is awarded.

Kane, C. J., and Dunn and Turner, JJ., concur; Hayes J., dissents.