Page images
PDF
EPUB

Georgia was restrained, both by general principles which are common to free institutions, and by the particular provisions of the Constitution of the United States, from afterwards passing a law whereby the estate of the bona fide purchasers of the premises could be constitutionally and legally impaired and rendered null and void.

[ocr errors]

In the early days corporations were created and charters granted exclusively by special acts. It was thus possible for the legislature in creating charters to show a great deal of favoritism. In New York State nearly all of the bank charters were held and controlled by the federalists. On April 2, 1799, an act was passed by the legislature of New York entitled "An Act for supplying the city of New York with pure and wholesome water. Under this act a body politic and corporate was created by the name of The President and Directors of the Manhattan Company, and were declared to be forever thereafter a body politic and corporate, to have continual succession, etc. By said act, among other things, it was enacted that it should and might be lawful for the company to employ all such surplus capital as might belong or accrue to them, in the purchase of public or other stock, or in any other monied transactions or operations not inconsistent with the constitution and laws of this (New York) state or of the United States. (The People v Directors of the Manhattan Company, 9 Wendell 351.) I believe that under this act, and subsequent amendments, the Manhattan Bank of New York City is now being operated, and it has been claimed that the original act passed by the New York legislature was drawn by Aaron Burr.

The constitution of Maine, framed and adopted on December 6, 1819, provided that the "Legislature shall, from time to time, provide, as far as practicable, by general laws, for all matters usually appertaining to special or private legislation" and that "Corporations shall be formed under general laws, and shall not be created by special acts of the legislature, except for municipal purposes, and in cases where the objects of the corporation cannot otherwise he attained; and, however, formed, they shall forever be subject to the general laws of the State." Maine being erected out of the territory of Massachusetts, and immediately adjacent to New Hampshire, the framers of its first constitution obviously were acquainted with the results of legislation of those two states whose constitutions had no limitations as to the exercising of their legislative powers special and local legislation. No doubt the Dartmouth College Case (4 Wheat, 520, Ed. 360), which had been decided by the Supreme Court of the United States during that year, operated to cause the incorporation of the clause "however formed, they shall forever be subject to the general laws of the State, evidently being incorporated as a saving clause to meet conditions caused by the holding of Chief Justice Marshall in that case.

on

[ocr errors]

(See Noble State Bank v. Haskell, et al., 22 Okla., page 58).

In the Revised New York Constitution of 1846 corporations were required to be formed under general laws, instead of special acts, and the right was reserved in the legislature to alter or repeal such charter. The late Charles O'Connor, Esq., and ex-Governor Tilden as members of that convention shared the credit for this work. The controversies arising over and abuses following the creating of corporations and the granting of franchises by means of special or local acts rendered such provision essential. (Life of Samuel J. Tilden by Bigelow, Harper Bros., 1895, page 114.)

As the years have rolled by and the different states have revised their constitutions, and new states have been admitted and constitutions framed, the numerous limitations that have been devised and imposed upon the legislative power indicate that there has been a gradual distrust in the minds of the people as to the exercise of such power. This has, in a large measure, been brought about on account of undue preference shown in such legislation. Such fact is accentuated in Revised Constitutions of New Jersey, 1844, and New York, 1846. Such limitations continued to be expressed in various ways until the year 1898 when a further restraint was imposed by the adoption of an amendment in South Dakota providing for the initiative and referendum in an advisory form.

This was followed by Oregon in 1902 adopting an amendment providing for the initiative and referendum. Under such provision the people may exercise a legislative power, and, in effect, veto or defeat bills passed and approved by the legislature and the Governor. The legislative and executive departments, however, are not destroyed, nor are their powers or authority materially curtailed Laws proposed and enacted by the people under the initiative provision of the amendment are subject to the same constitutional limitations as other statutes, and may be amended or repealed by the legislature at will. (Kadderly v. Portland, 44 Ore. 118, 74 Pac. 710). A sovereign representative government republican in form is thus preserved and maintained.

However, in Pacific States Telephone & Telegraph Company v. Oregon 223 U. S., page 118, the Supreme Court of the United States held that the question as to a state government not being republican in form and therefore violative of the federal constitution was held to be a political question and for congress to take cognizance of and not the courts.

The following additional states have adopted the initiative and referendum by constitutional amendment: Washington, California, Nevada, Arizona, Montana, Utah, Colorado, North Dakota, Oklahoma, Ohio, Missouri, Nebraska, Arkansas, Mississippi and Maine.

In the following states the people can initiate both statutory legislation and amendments to the constitution: Arizona, Arkansas, Colorado, Mississippi, Missouri, Nebraska, Nevada and Oregon.

Likewise in North Dakota, but such proposed amendments after an affirmative vote of the people must go to the legislature for its approval. If not adopted by the legislature the amendment must then be adopted again by the people before becoming a part of the constitution. So in Ohio, except that initiated statutes must first be presented to the legislature for its approval.

In the following states the constitution provides for statutory enactments only: Montana, South Dakota, Utah, Washington and Maine. In Maine, as in Ohio, the proposed statute must first be submitted to the legis lature before it can be submitted by the initiative to the people for adoption.

Not only have limitations been imposed upon the legislative department of government but also the people have placed limitations upon themselves in revising constitutions. In Arkansas, Kansas and Montana not over three amendments may be submitted at any one election; in Kentucky not over two. In Colorado not over six may be proposed at any one session of the legislature. In Illinois an amendment can be proposed to only one article of the constitution at any session and only once in four years.

The past, however, justifies an optimistic perspective. The men who sought a place of abode in the new world were imbued with the spirit of service to humanity. The environment of the old world with its kingly proscriptions was not conducive to its realization. The great call in such pioneer days was to the state and the church. During the last half century it has been to business, money making and commercialism. I am unable to bring myself to concede, however, that the legislative department of our state government has been a failure. The abuses which have in the past characterized the conduct of such departments can and must be corrected. The call is to the lawyer, physician, merchant, farmer, and every vocation of life, for service in such bodies. And, too, preparation for such service is essential. What I mean by preparation is representative and capable men and when called into service continued by re-election. The man who seeks the means of livelihood by public service as a rule will not bring about the best results. He would be tempted too much at all times to set his sails to meet apparent popular clamor or demand whether that would be for the best interests of the state or not. The man called to public service by the people should answer that call and render the best, most capable and most fearless account of himself, whether it returned him to private station or continued him in public service or caused him to be advanced in public station. In the old days frequently men resigned places in the legislature, on the bench and other state office, or from the national congress and voluntarily retiring to private life, were frequently recalled from such private stations to resume public service. The response then, as it should be now, was to meet

the patriotic claims of the nation and the commonwealth.

re

Special and local legislation has not only in a large measure been displaced by providing for such conditions to be met by general laws applying uniformly over a state, but also by the creation of commissions to deal with the subjects with certain granted powers. We have corporation or railroad commissions, existing by constitutional grants, possessing sufficient powers to regulate and afford proper relief as to public service corporation. The industrial commission with the same powers will afford relief as to conditions existing between employe and employer. An insurance commission will afford the same relief as to the public as to insurance matters, and such will be the case with a proper tax commission. Such a plan carried to its ultimate end will mean a business administration. With a business executive department and the legislative department subdivided in the different divisions so as to result in the administration of government along practical, efficient and business ends, it will only be necessary for the legislature to meet in regular session quadrennially, to be convoked in extraordinary or special session for specific purpose, such session to be limited to a desig purposes, such session to be limited to a desig Party conventions now having been placed by primaries, the new system seems to have come to stay at least for a time. Just as it appeared wise to place limitation in the exercise of legislative power and the submission of constitutional amendments, reasonable limitations should be imposed as to party nominations by means of primaries in order that machine domination and control may be minimized and the call from the body of the people to men for public service may be brought about without machine manipulation. The governor of the commonwealth should not be eligible to a party nomination for a place in the United States Senate, or in the federal house of representatives, during his term of office. In the exercise of the executive power of the state he would thus be left without temptation to use that power for political self-advancement but vironed as to aid him in administering the state's affairs solely for the public welfare. The other state officers should not be eligible to file, or to enter contests for party nominations, while holding such office except to succeed themselves where immediate succession was permitted. If they desire to be elevated from one executive office to another, then it should be essential for them to resign before entering the contest for such nomination. Any machines that had been built by means of state agency would then crumble and not remain to assist them in obtaining such nomination. No senator or congressman should be eligible to become a candidate for party nomination for the governorship of the state whilst holding such federal position. If they feel the call to render the state service in that exalted position, it should be essential for them to resign the seat in the senate or

[ocr errors]

en

congress of the United States in order to file for such party nomination or contest for the same. By this means they would not be permitted to use federal agencies to advance their interests to secure such nomination. If we are to continue to have statewide primary nominations such limitations and safeguards are essential. For primary nominations do not render it impossible for political machine building as was contemplated when the old convention system was displaced. When this is brought about we will have greater opportunity to appeal to men in private station to aspire to these important places. When the state administrative agencies may not be used to lift others out of or into public life

Every lawyer bears a peculiar relation to the public and through the history of our Anglo Saxon government he has borne an important part in its establishment and support, though frequently he has been the ob ject of class opposition and prejudice.

In 1906, during the campaign for election of delegates to frame the Oklahoma constitution for admission as a state, there was organized opposition to the election of lawyers to that convention, resulting in only 26 lawyers being elected out of the membership of 112. A farmer who was member of an important committee, of which I had the honor to be Chairman, near the close of the convention told me one day that he had opposed sending any lawyers to the convention but that he then realized that there were not enough lawyers in its membership to cause the work to be done expeditiously. During the campaign for election I was opposed also on the ground that I was a lawyer and on account of certain clientage whom I had been fortunate or unfortunate enough to have represented in the courts. I reminded the electorate that if I were sent to the convention that I would be the attorney for the people and especially for all the people of my district and that they would be represented with the same fidelity in the convention as my clients had been in the courts.

With common sense, honesty fidelity and patriotism controlling the legislative department of government, it should approximate the expectations of the fathers that laid the foundation for the American commonwealths.

It were better to have a poor constitution and laws and good men to administer government under the same than to have good laws with poor rulers. On the completion of the federal constitution Gouverneur Morris being asked what he thought of it answered, "That depends upon how it is construed.'' And this is further illustrated by a passage from one of the letters from Bolingbroke to Drummond. "There is, I dare say, no one disaffected man in the queen's dominions but who will engage to be of no party; to be as hearty as any man where the queen's honor or the nation's good is concerned. There are vague and uncertain propositions which tie him down to nothing, because he is to expound them himself' '', (Bolingbroke's Works, Vol. 1, p. 24).

A couple of years ago the city of Denver almost by a popular unanimity adopted the commission form of government. Just the other day by practically the same majority the commission form of government was displaced by a special aldermanic form of government and the mayor who had held that place under the old aldermanic form was again placed in that position under the new aldermanic form.

The call is for men. The bar of a state are the custodians of the purity, integrity, honor and standards of the bench. Let it be hoped that it will always be their controlling purpose that the laws of the commonwealth to be construed by the courts shall be so framed that government may accomplish the things for which it was founded-the protection of life and liberty, the preservation of property and the affording of equal opportunity to every citizen.

CANNOT CREATE DEFICIENCY

The law that no debt should be created which would be in excess of the revenue for any part of the county government to be raised for the year is strictly adhered to in an opinion by Commissioner Bleakmore of the supreme court commission, approved by the court. L. P. Smartt, sheriff of Craig county, fed the county prisoners as a part of his official duties. He put in a claim of $338.20 to the county commissioners. The claim was presented after it was known the amount raised by taxation for the county expenses had been exhausted. The county court allowed the claim, and the case was appealed to the high court. The facts were not disputed. The high court simply held to the law that does not permit the creation of debts by any part of the county government in excess of the amount raised by taxation, unless the people themselves vote an additional levy.

PROOF MUST BE POSITIVE

What votes were illegal and who voted them should have been proven by those seeking to attack the bond election of Red Rock, for the purpose of establishing a system of waterworks, is held in a decision of the supreme court, the opinion being written by Justice Sharp. The citizens of that town voted on the proposition of issuing bonds and they carried by the vote of 29 to 28. It was alleged that two persons cast illegal votes in favor of the bonds. No other proof was offered in this contention than that one of the voters in the election, a newspaper man, advocated the bonds in his newspaper. The court held that this was not sufficient where a claim of illegal voting was made. The parties seeking to overcome the result of the election must show who voted the ballots in question and how they were voted and in what were they illegal, is the holding of the court.

DECISIONS ON USURY STATUTE IS NOW PERMANENT

Rehearing Denied by Supreme Court in the Well Known Altus Bank Case Opinion Written by the Late Justice Brown Construes the Law and Makes Plain the Provisions of the Statute Relative to the Collection of Usury.

There is a copy of a decision in the records of the office of the Clerk of the Supreme Court that has been handled so much that it is nearly threadbare." It is the opinion relative to the usury question that was written several months ago by the Late Justice G. A. Brown of the Supreme Court. The case was that of A. J. and Etta Miller v. the Oklahoma State Bank of Altus. It decided a question that has been before the bankers of the state for several years, and it involved the interests of the people, especially those borrowing money. The Millers had borrowed money. They claimed, at the proper time, that they had paid more interest than they should, under the laws of the state. The case came to the Supreme Court, with the facts established by the court below.

Justice Brown's opinion in the case is important. It will be remembered that the special session of the legislature spent many days working on an anti-usury law which has been criticized severely and which it has been said would place unjust burdens on the people who borrow small amounts of money from the banks. Whether that is true or not the principal thing in an anti-usury law is to prevent people from being required to pay more interest than the law says they should. On this point lies the great strength of the opinion of Justice Brown. He was construing the old law of which none was repealed by the legislation on the subject at the special session.

cent.

Under section 1004 of the Revised Laws of 1910, referring to usury, the maximum rate of interest to be contracted for is ten per The legal rate is 6 per cent. Section 1005 of the same statute provides two conditions: (1) where interest exceeding the legal rate has been charged but not paid, and (2) where it has been charged and paid. Justice Brown in his opinion, says:

"Under the first condition the lender of money by the act of charging illegal interest, thereby forfeits twice the amount of the interest which the note carries with it, or which has been agreed to be paid thereon, and in case he sues for collection of the note and the payor pleads illegal interest charge, it is

uniformly held that it will be the duty of the court to limit the plaintiff's recovery to the amount of the note less the forfeiture fixed by the state.

"We, therefore, hold that under the first sub-division of section 1005 revised laws, 1910, the charging a rate of interest greater than ten per cent. per annum, for money loaned, or upon any evidence of debt ipso facto works a forfeiture of twice the amount of the interest which the note, bill or other evidence of debt carries with it, or which has been agreed to be paid thereon, and following the uniform decisions of other states under similar statutes, we further hold that in a suit for the collection of such debt, the debtor may allege and prove such illegal charging of interest or agreement to pay the same, and thereupon it will be the duty of the trial court, by proper holding or instruction, to cause the amount of said forfeiture to be deducted from the amount of the note or other evidence of debt sued on, this, not as compensation or an amount due the defendant or debtor, but for the reason the courts in such cases will not permit the recovery of the forfeiture, declared by law, in consequence of the wrongful act referred to. We also hold that under the second sub-division of said section 1005, where the borrower of the money pays therefor a greater rate of interest than ten per cent. per annum, he or his legal representatives may, within two years after maturity of such usurious contract, recover from the person, firm or corporation taking or receiving such interest, twice the amount of the interest so paid, provided that, before bringing such suit, the party bringing the same, must make writ ten demand of the party to be sued for payment of the sum so authorized by the statute to be recovered.

"The rule just stated, authorizing one who has paid a greater rate of interest than ten per cent. per annum, to recover from the party taking or receiving the same, twice the amount of interest so paid, is in line with the uniform decisions of the United States Supreme Court.

"The construction given section 5198 U. S. revised statutes, by the United States Supreme Court is also held by this court to be the effect of sub-division two, section 1005 of Oklahoma statutes 1910, while it is the opinion of the writer that under our procedure a debtor who has paid the greater rate of interest on his note may, by cross petition, plead such payment in an action on the note by the party to whom the interest was paid, other than a national bank, and, upon proof thereof, he is entitled to have the plaintiff's demand reduced in double the amount of in terest so paid.

"Section 1005 provides where usurious interest has been paid twice the amount thereof may be recovered from the person receiving the same, in an action in the nature of an action of debt. An action to recover a debt may be set off by a debt due by the plaintiff to the defendant.

"Like the state of Texas, we have no common law form or practice and authorities cited and our liberal code practice by which it is sought as much as possible to avoid a multiplicity of suits, I am clearly of the opinion that one who has been sued on a note, other than a national bank debt, and upon which he has paid usurious interest, may, by proper pleadings in the same action, set up such payment and thereupon recover plaintiff in such action double the interest so paid, and that such judgment should be deducted from any judgment in plaintiff's favor on the note, and execution allowed only for the balance thereof if any, and in case the defendant's judgment exceeds that of the plaintiff then execution should issue in his favor for such excess."

of

PROPOSED TENTH CIRCUIT COURT DISTRICT

The following report covers cases decided which arose within the territorial limits of the proposed Tenth Circuit Court of Appeals District, from January 1, 1909, to December 31, 1915, so far as the same have been reported, to and including Advance Sheet No. 4 of the Federal Reporter, dated Februray 24, 1916; but this report is incomplete as to the cases for 1915, there being some which will be reported later.

The proposed Tenth Circuit Court of Appeals District is to be composed of Oklahoma, Arkansas, Tennessee, the Northern District of Alabama, and the Northern District of Mississippi.

1909.-There were 55 cases decided from the proposed district, of which Oklahoma had 21, being 38% plus; Arkansas 12, being 21% plus; Tennessee 15, being 27% plus; Alabama 6, being 10% plus; and Mississippi 1, being 2% plus.

1910. There were 58 cases decided in the proposed district, of which Oklahoma had 12, being 20%; Arkansas 17, being 29%; Tennessee 14, being 24%; Alabama 15, being 25%; and Mississippi none.

1911.-There were 67 cases decided in the proposed district, of which Oklahoma had 22, being 32%; Arkansas 14, being 20%; Tennessee 20, being 30%; Alabama 6, being 8%; and Mississippi 5, being 9%.

1912. There were 55 cases decided in the proposed district, of which Oklahoma had 28, being 50%; Arkansas 3, being 5%; Tennessee 16, being 24%; Alabama 3, being 5%; and Mississippi 5, being 9%.

1913.-There were 65 cases decided in the proposed district, of which Oklahoma had 23, being 35%; Arkansas 6, being 8%; TennessEE

26, being 40%; Alabama 7, being 10%; and Mississippi 2, being 3%.

1914. There were 79 cases decided in the proposed district, of which Oklahoma had 38, being 48%; Arkansas 8, being 10%; Tennessee 26, being 32%; Alabama 6, being 7%; and Mississippi 1, being 1%.

1915. There were 85 cases decided in the proposed district, of which Oklahoma had 53, being 62%; Arkansas 13, being 15%; Tennessee 16, being 18%; Alabama 1, being 1%; and Mississippi 2, being 2%.

There were 464 cases decided in the proposed district from January 1, 1909, to December 31, 1915, so far as published in the reports, of which Oklahoma had 197, being 42%; Arkansas 73, being 15%; Tennessee 133, being 29%; Alabama 44, being 4%; and Mississippi 16, being 3%.

Oklahoma had 150% more cases in 1915 than in 1909; Arkansas gained one case and Tennessee gained one case.

In 1915 there were over 50% more cases decided in the proposed territory than in 1909.

BANK SUED ON USURY CHARGE ́

The first usury suit ever brought against a bank in Logan county was tried before Justice Hornaday, being a case brought by H. H. Conning against the Meridian State bank, charging usury amounting to $114.

The court found the actual amount of usury to be $51, which, under the old usury law still in force, makes the penalty $102. The case was at once appealed by the bank.

WANT RIGHT OF EMINENT DOMAIN

In order that electric light plants may extend their service to country districts, the same as the telephone companies now do, passage of a law that would authorize such was recommended by the State Gas, Electric and Street Railway association in its annual meeting here, closed here with election of officers for the next year. By giving electric light and power companies eminent right of domain, these public service utilities may extend their service into the country districts, just as the telephone companies now do by giving the farmer the rural telephone. An attempt was made to secure such legislation at the regular 1915 session, but a bill passed was vetoed by Governor Williams because it had been improperly drawn. Another measure which the association will likely ask to be passed at the next session is that which would empower the corporation commission to investigate and decide if an additional light or power plant were a necessity in a community where one already existed. This would prevent duplication of these plants. Officers elected were: C. H. Kretz, Okmulgee, president; Tom Carey, Norman, first vice president; T. D. Shaffer, Chickasha, second vice president; H. V. Bozell, Norman, secretary; R. K. Johnston, Pauls Valley; W. E. Blackwell, Afton, directors.

« PreviousContinue »