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ELIZABETH HOBB, Plaintiff in Error,

No. 2834
Defendant in Error.

(Rendered September 23, 1913) Error from District Court of Beckham County. G. A. Brown trial Judge.


1. The exemption from liability for debts, provided for by Section 2296, Rev. Statutes, U. S., no longer applies to lands after final proof has been made, and receiver's final receipt issued therefor.

2. The provision of said Section (2296 Rev. St. U. S.) which refers to the issuance of patent has reference to that period of time when the patent ought to be issued and not to the more clerical act of issuing it.

(Syllabus by the Court.) Hughes, & Reardon, for Plaintiff in Error. Shartel, Keaton & Welle, for Defendant in Error.

BOARD of COMMISSIONERS of Delaware County, v8. T. J WILLIAMS.

No. 3551

(By reason of an accident in making up the printers Form in this case, the reader will find the Syllabus to the opinion on page 104 of this Number.) OPINION OF THE COURT, BY HAYES, J.:

This cause was tried to the court below upon an agreed statement of facts upon which judgment for defendantin error was rendered. The facts out of which this proceeding grows are substantially as follows: Defendant in error was elected county treasurer of Delaware county at the election held on September 17, 1907 for the purpose of adopting the Constitution and electing state and county officers. Thereafter, on November 16, 1907, he qualified and was inducted into the office of county treasurer for said county for the term beginning on that date and ending January 8, 1911. At the time of the ad nis.

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sion of the state, there was in force in the Territory of Oklahoma section 3024, Wilson's Rev. & Ann. Statutes, which reads as follows:

"The county treasurers of the several counties of this territory shall be allowed by the board of county commissioners of their respective counties, as full compen: sation for their services, the following salary: In counties of ten thousand inhabitants or less, eight hundred dollars: in counties of not less than ten thousand nor more than fifteen thousand inhabitants, fifteen hundred dollars; *

Section 3027c of the same statute provides the amount that shall be allowed to the county treasurers in addition to salaries for clerk hire, which is also based upon the population of the county.

Section 3028 provides as follows:

For the purpose of fixing the amount to be paid to the officers as in this act provided, the board of county commissioners shall adopt as a basis for that purpose, the number of inhabitants of their respective counties as shown by the returns of the assessors made in the year 1900, and each two years thereafter."

Another section of the statute provides for the taking of a census by the assessors who list property for assess • ment to be made after the first day of March and returned not later than June 30ih every two years.

By section 18 of the Schedule to the constitution, it is provided that:

"Until otherwise provided by law, the terms, duties, powers, qualifications, and salary and compensation of all county and township officers, not otherwise provided hy this constitution, shall be as now provided by the law of the Territory of Oklahoma for like named officers, and the duties and compensation of the probate judge under such laws shall devolve upon and belong to the judge of the county court:

Also, by section 2 of the Schedule, all lawe in force in the Territory of Oklahoma at the time of the admis · sion of the state, were extended to and kept in force in this state.



The state embraces a large section of territory that was not within Oklahoma Territory, and in which there had not theretofore existed organized counties, and no census had ever been taken under the provisions of the statute above referred to. Delaware county is one of such counties. It follows as to that county and all other new counties of the state that section 3028, supra, providing what census shall be looked to for determining the population for the purpose of fixing the amount to be paid to the county treasurer was locally inapplicable and could not be enforced in the state until a census under the statute was taken. Section 3024, supra, which fixes the amount of the salaries based upon the population of the counties, was inapplicable; but standing alone, left the authorities charged with the duty of pay. ing such salaries to adpt a method for the ascertainment of the population of their respective counties. In the month of July 1907, a focieral consus of the different counties of the proposed state had been taken. Upon the admission of the gate, the county commissioners of Delaware county acted upon this federal census as bases of population and thereby fixed a schedule of salaries of coun!y officers. By this census, Delaware county had less than ten thousand inhabitants, and defendant was paid at the rate of $800 per annum. The first legi slature, apparently recognizing the deficieny in the statute on April 8 1908, enacted a law, whereby it was provided that until the next federal census, or until the census should be taken under the laws of the state, the special federal census just refered to should be the official census of the state and of all counties and subdivisions thereof for all official purposes. Segs. Laws 1807-8, p. 195. In the month of Juno 1908, the assessors of property in Delaware county returned, as provided by the law ex. tended in force in the state, a census taken by them of the population of that county. By this census the population of the county was shown to be greater than ten thousand, but less than fifteen thousand. The county com migsioners thereafter, however, refused to pay to

(Continued on page 109.)


BOARD of COUNTY COMMISSIONERS of Delaware County, Plaintiffs in Error,

Vo. 3552 GEORGE W. FIELDS, Defendant in Error.

(Rendered September 9th, 1913.) Error from District Court of Delaware County. T. L. Brown, trial Judge.

Affirmed firm

A register of deeds, who was inducted into office on November 16, 1907, was, by reason of sections 3008 and 3028, Wilson's Rev. & Ann. Statutes, and by reason of act of the Legislature approved April 8, 1908 (Seas. Laws, 1907-8, p. 165) entitled to receive after July 1. 1908 for the romainder of his term, where the population of his county was shown by the census, taken by the as80880rs in 1908 to be more than ten thousand inhabitants and less than fifteen thousand inhabitants & salary of $1,200 per year, and to retain fifty per cent of all fees collected by him in excess of above salary.

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CHARLOTTE ANTHONY, Plaintiff in Error,

No. 2747 C. W. BLISS, J. B. BLISS, Stewart and Stewart, partners, Defendants in Error.

1. A demurrer to the evidence is aduced and logically drawn from the evidence, and upon a demurrer to the evidence the plaintiff is entitled to every inference which the evidence, considered in the light most favorable to him, reasonably tends to prove.

2. In an action for injuries caused by negligence the court should not take the case from the jury except where the facts are such that all reasonable men must draw the same conclusion from them.

3. In an action for injury caused by negligence where the defense of contributory negligence is interposed it is error for the court to take the case from the jury where there is any competent testimony, considered in the light most favorable to plaintiff.

J. E. COYLE & E. J. COYLE, Partners, Plaintiffs in Error, vs. ARKANSAS VALLEY & WESTERN R. R. COMPANY, Defendant in Error.

(Rendered September 2nd, 1913.) Error from District Court of Noble County. Hon. R. H. Loofburrow, trial Judge.


1. Where in an action by a railroad company on a bonus nọte which under its terms became payable on the performance of certain conditions by the railroad company, the petition contains the name of the court and the county in which the action is brought, together with the name of the parties plaintiff and defendant, followed with the word Petition, and contains the allegation of plaintiff's corporate capacity, the date of the execution and delivery of the note, the purpose for which it was given and the conditions under which it became payable, and that all the conditions precedent have been performed by the plaintiff, fully stating the facts constituting a compliance therewith, alleges the amount due thereon together with interest at a certain date, and that such amount is past due and wholly unpaid, that plaintiff is the owner and holder of the note, and attaches a copy thereof as an exhibit to and made a part of the petition and prays for judgment for the amount due and interest from the given date, such a petition states a cause of action and is sufficient under section 5627 Comp. Laws, 1909.

An instrument reciting: "For value received and for benefits accruing to me from the construction of a railroad from some point on the St. L. and S. F. railroad between S. and T., through the city of P., to connect with the B., E. & S. Railway. I .... agree to pay to the order of A. V. & W. Railway Company, at Exchange Bank of P. the sum of Two Hundred and Fifty Dollars.

-To become due and payable when said railroad shall become constructed to and into P”,-is a contract between the parties.

(a) No contemporaneous parol condition or consid. eration may be ingrafted into such contract, so as to add

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