Volume 85 — Oklahoma Reports

Error from District Court, McIntosh County; R. W. Higgins, Judge. Action by Henry W. Brown against C. E. Foley and another to quiet title. Judgment for plaintiff, and defendant C. E. Foley brings error.

<p>(Syllabus.)</p> <p>Appeal and Error — Dismissal—Stipulations.</p> <p>Where all the plaintiffs in error, except one, have stipulated to dismiss _ their appeal, and that one has failed to file’ brief as required by rule 7 -of this court, the appeal will be dismissed.</p>

<p>(Syllabus.)</p> <p>1. Appeal and Error — Review—Sufficiency of Petition.</p> <p>A petition unchallenged by demurrer or motion, and against which no objection is raised by objecting to the introduction of testimony, will, when its sufficiency is questioned for the .first .time in a motion for a new trial, or in this court on appeal, be held good if by a liberal construction it states, even though somewhat defectively, a cause of action in favor of the plaintiff and against the defendant; and such objection should not be sustained, unless there is a total failure to allege some matter essential to 'the relief sought, nor when the allegations are simply incomplete, indefinite, or conclusions of law.</p> <p>2. Limitation of- Actions — Action Based on Fraud — Time of Discovery of Fraud.</p> <p>In an action brought on the 27th of June, 1916, for damages for fraud on the part of defendants in inducing the purchase by plaintiff in the years 1908 and 1909 of certain shares of stock of an insurance company, by reason of the representations of defendants that .they had subscribed for shares sufficient to increase the capital of said company to $100,000, where the books and records of the company disclosed that the capital stock had been increased to $100,000 and securities deposited by defendants amounting to $150,000 to secure the payment of notes executed by defendants for said shares, an allegation in .the petition, “that said defendants and each of them, in July, 1914, stated to this plaintiff and testified in a suit then pending in the district court * * * that they and each of them did not subscribe for and purchase said stock or any part thereof, in manner and form as before stated, or in any other way, and did not owe said insurance company anything therefor, and was not indebted to said insurance company for said sum of money or any part thereof, at which time, in July, 1914, was the first time plaintiff heard and knew said defendants had denied they subscribed for, owned, and held the $79,000 in said insurance company as aforesaid alleged herein,” held sufficient to bring the case within the provisions of the statute of limitations, under paragraphs 3 of section 4657, Rev. Laws of Oklahoma, 1910.</p>

Error- from District Court, Logan County; John P. Hickam, Judge. Action by the Massachusetts Bonding & Insurance .Company, against the Guthrie Savings Bank for money judgment. Judgment for defendant, and plaintiff brings error.

<p>(Syllabus.)</p> <p>1. Appeal and Error — Review—Questions of Fact — Verdict.</p> <p>In a civil action, triable to the jury, where there is competent evidence reasonably tending to support the verdict of -the jury, and no prejudicial errors of law are shown 'in the instructions of the court or its ruling on law questions presented during the trial, the verdict and finding of the jury will not be disturbed on appeal.</p> <p>2>. Payment — Presumption —Burden of Proof.</p> <p>Payment is not presumed, and when the antecedent existence of an indebtedness is proven, the burden of proving its discharge by payment is upon the debtor or person alleging the payment.</p>

Error from District Court, Muskogee County; Benjamin B. Wheeler, Judge. Action by Carrie Johnson against the Muskogee Electric Traction Company for damages. Judgment for plaintiff in city court, and defendant appealed to district court. Appeal dismissed in district court, and defendant brings error.

Pitchford, Kane, and Johnson, JJ., dissenting in part. Error from Superior Court, Tulsa County ; M. A. Breckinridge, Judge. Action in ejectment by Lucinda A. Smith and others against Lizzie Teague and others. Judgment for plaintiffs, and defendants bring error.

<p>(Syllabus.)</p> <p>1. Appeal and Error — Moot Question — Dismissal.</p> <p>When the question presented by an appeal has become moot, the appeal will be dismissed.</p> <p>2. Injunction — Acts Already Done.</p> <p>A court will not entertain an action to enjoin a party from doing that which he has already done. Parrish v. School Dist. No. 19 et al., 68 Oklahoma,. 171. Pac. 461..</p>

<p>(Syllabus.)</p> <p>1. Action — Misjoinder of Causes of Action and Parties.</p> <p>W]here the petition filed in an action states only one cause of action, but contains allegations sufficient to authorize a recovery against the defendants upon a joint or common liability under section 4738, Revised Laws 1910, it is reversible -error for the trial court to sustain a demurrer to such petition on the ground of mis-joinder of causes of action or parties defendant.</p> <p>2. Same — Action oh Bank Check.</p> <p>Record in the cause examined, and held, that the petition only states one cause of action, and that the trial court committed reversible error in sustaining the separate demurrers of the defendants.</p>

Error from District Court, Tulsa County; N. E. McNeill, Judge. Action by Y. W. Swoveland' and another against the Oklahoma 'Consolidated Petroleum Company on drilling contract. Judgment for plaintiffs, ■ and both parties bring error.

<p>Error from District Court, Carter County; Thos. W. Champion, Judge.</p> <p>. Proceeding by Carrie Duncan Collins and others against Corinne V. McDowell and others to vacate judgment. Motion to vacate overruled, and movants bring error.</p>

Error from District Court, Pontotoc County; J. W. Bolen, Judge. Action by I. D. Nichols against the National Fire Insurance Company of Hartford, Conn,, on fire insurance policy. Judgment for plaintiff, and-defendant brings error.

<p>(Syllabus.)</p> <p>1. Corporation Commission — Control of Contracts Between Public Service Corporations.</p> <p>Public service corporations have a right to enter into contracts between themselves, but such contracts are subject to the control and supervision of the Corporation Commission, if they are unconscionable, oppressive, and impair the obligation of the public service corporations in the discharge of their public duty to the public.</p> <p>2. Corporation Commission — Procedure — Pleading — Notice.</p> <p>The jurisdiction of the Corporation Commission does not depend upon the forni or sufficiency of any pleading; the test being, not the relief prayed for, -but that granted, (a) It is not essentiál for petition to be filed with the Corporation Commission, but that notice shall be had on-the company or corporations to be affected.</p> <p>3. Prohibition — Right of Corporation Commission to Inquire into Centralists Between Public Service Corporations.</p> <p>Writ of prohibition will not lie to enjoin the Corporation Commission from proceeding to inquire into contracts entered into between public service corporations, when said contracts may be unconscionable, oppressive, and impair the obligation of the public service corporations in the discharge of their duty to the public.</p>

Error from District Court, Carter County; John L. Coffman. Assigned Judge. Action by Wirt Franklin against W. W. Woodworth, John Heenan, B. A. Simpson, and C. L. Anderson for specific performance of contract to sell oil leases. Judgment for plaintiff, and defendants bring error.

Error from District Court, Muskogee County; Benjamin B. Wheeler, Judge. Action by Eli Bunch against J. B. Cole and T. B. Matthews to recover rents on farming land. Judgment for plaintiff, and defendants appeal.

<p>Error from District Court. Ottawa County; Geo. O. Crump, Assigned Judge.</p> <p>Action by J. D. Yeargain against Daniel Sutter and others on supersedeas bond. Judgment for defendants, and plaintiff brings error.</p>

Error from District Court, Garfield County; James B. Cullison, Judge. Action by the Alton Mercantile Company against 'the National Candy Company (O. H. Peakham Factory) for damages for breach of sale contract. Judgment for plaintiff, and defendant brings error.

<p>(Syllabus.)</p> <p>Appeal and Error — Case-Made—Extensions of Time — Validity of Orders — Dismissal.</p> <p>An order or orders, purporting to grant an extension of lime in which to serve case-made for appeal to the Supreme Court, made after the expiration of the time or times formerly allowed, is and are nullities, and appeal based upon service of case-made thereunder will be dismissed.</p>

<p>Order Denying Supersedeas.</p>

Error from District .Court, McClain County; E. B. Swank, Judge. Action by Spencer J. Morris .against the Purcell Bank & Trust Company, of Purcell, a corporation, for $612.42 penalty for usury. Judgment in favor of plaintiff for $22, and plaintiff appeals.

Error from District Court, Jackson County; Frank Mathews, Judge. Action by T. J. Moody against the St. Louls-San Francisco Railway' Company for damages in shipment of goods. Judgment for plaintiff, and defendant brings error.

<p>Error from District Court, Pontotoc County; J. W. Bolen, Judge.</p> <p>Action by Waples-Platter Grocer Company ' against E. W. Hardin, G. T. Lancaster, and Tom Hope on contract of guaranty. Judgment for defendants, and plaintiff brings error.</p>

<p>(Syllabus.)</p> <p>Appeal and Error — Case-Made — Invalid « Extension of Time — Dismissal.</p> <p>An order purporting to grant an extension of time in which to make and serve case-made for appeal to the Supreme 'Court, made after the expiration of the time formerly allowed, is a nullity, and an appeal based upon service of a case-made thereunder will be dismissed.</p>

Error from District Court, Nowata County; O. W. Mason, Judge. Action by Henrietta Swanson and others against Sarah H. Rector and others. Judgment for plaintiffs, and defendants bring error.

<p>Error from District Court, Osage County; R. B. Boone, Judge.</p> <p>Action By Joseph D. Mitchell against Elsie M. Bruce. Judgment for .defendant, and plaintiff brings error.</p>

<p>Error from District Court, Grady County; Will Lynn, Judge.</p> <p>Action by Harry Hammerly against the Board of Commissioners of Grady County, the City of Chiekasha, and unknown holders of improvement bonds, including A. V. Foster, to liquidate delinquent taxes on real estate. Judgment for plaintiff, and defendants bring error.</p>

<p>Error from District Court, Oklahoma County; George W. Clark, Judge.</p> <p>Action by Lucile M. Robinson against the American National Insurance Company on life insurance policy. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from State Industrial Commission; Baxter Taylor, Chairman.</p> <p>Appeal by the McAlester Colliery Company from award of workman’s compensation to Leonard Darby.</p>

Error from District Court, Wagoner County; Chas. G. Watts, Judge. Action in ejectment by Bowman Childers and others against W. S. Vernon and others. ■Judgment for defendants and plaintiffs bring error.

Error from Superior Court, Tulsa- Qou-nty; M. A. Breckinridge, Judge. . Proceeding instituted in the County Court of Tulsa County in the administration of estate of Mary J. Cole, by George E. Cole, her surviving husband, against L. B. Pence, executor of her will, to have set off to him certain property belonging to his wife at the time of her death.

Error from -District Court, Okmulgee County; Ernest B. Hughes, Judge. Action by Squire Walters and others against the Prairie Oil & Gas Company and others for damages for pollution of stream. Judgment for defendants, and plaintiffs bring error.

Action to review order of the State Industrial Commission overruling a motion to discontinue the compensation awarded to Lee Williams; the movants, Whitehead Coal Mining Company and Consolidated Underwriters, bringing the action.

Action to review order of the State Industrial Commission, making an additional award to L. A. Mulholland, as claimant under the Workmen’s Compensation Act; J. H. Markham, Jr., respondent, and Commercial Underwriters, insurance carriers, as petitioners, bringing the action.

. Error from Ldstrict Court, Oklahoma County; George W. Clark, Judge. Motions by Walter S. Gregg and another to quash service of summons after judgment in favor of T. B. Seawell. Motions overruled, and movants bring error.

Error from District Court, Noble County; A. H. Huston, Judge. Action by Anna E. Doggett against Elmer E. Doggett et al. Judgment for plaintiff for decree of divorce and division of property. Defendants bring error.

<p>(Syllabus.)</p> <p>Taxation — Assessment of Railroad by State Board — Appeal by County Attorney — Deficient Record — Absence of Evidence— Dismissal.</p> <p>Where a county attorney protested against an assessment of the State Board of Equalization made against certain railroad property, and the matter was reopened, and was set for hearing at future dates, and no one appeared, and the board again •continued the hearing, and when next called for hearing, the county attorney and attorney for the railroad company stipulated ior a further continuance, which was denied by the State Board of Equalization, ■and no evidence was introduced by the party protesting against the assessment, and no reason given for failure to introduce evidence, and said county attorney appeals to this court, even if authorized to appeal, the appeal is without merit and should be dismissed, for the reason there was no .evidence introduced, and the records present no question to be reviewed by this court.</p>

. Error from District Court, Woodward County; J. C. Robberts, Judge. Action by the Aetna Building and Loan Association against B. A. Brockhaus and others. Judgment for plaintiff, and defendant H. A. Brockhaus brings error.

Error from Superior Oourt, Muskogee County; Guy F. Nelson, Judge. Action by Ed Taylor against the Midland Valley Railroad Company for damages to property from fire. Judgment for plaintiff, and defendant brings error.

<p>(Syllabus.)</p> <p>1. Appeal and Error — Case-Made — Sufficiency of Record of Revivor.</p> <p>Where service of case-made is accepted by-attorneys of record and the case-made is settled by the trial judge and certificate signed by him, and one of the parties to the suit dying thereafter and not being the party appealing. and the party appealing makes application in the trial court for revivor in. the name of a duly appointed administrator, and the attorneys for the administrator consent in writing for such revivor and the-judge of such trial court grants an order-of revivor, all done within six months after the final order of the court and before the appeal is filed in this court, and a certified copy of the proceédihgs in revivor is certified by the clerk' and such" record of the revivor is attáched: to the case-made and is with the case-fnade filed in this court, and a-motion is filed in this court to-dismiss the appeal for the reason,Jthat, said copy of the revivor proceeding is not a part of the case-made, theje toeing no contention that said copy of the proceeding is not complete and does not show the entire record, and there toeing no objection to the certificate of the clerk thereto, said motion to dismiss will be overruled, and said appeal will be regarded as pending, with the administrator, in whose name the suit was revived in the court below, as defendant in error.</p> <p>2. Justices of the Peace — Pleading1—Liberal Construction.</p> <p>'Pleadings in a justice court, where the parties frequently appear without counsel, are more liberally construed in favor of the pleader than in courts of record.</p> <p>3. Same — Action on Open Account — Sufficiency of Verification — Defensive Evidence.</p> <p>Where a bill of particulars is deposited with a justice of the peace court, praying for judgment against a defendant on an open account, which makes reference to an itemized account, and which itemized account is not attached to the bill of particulars, and which bill of particulars is verified, but the bill of particulars or the verification does not allege the correctness of said account, and a summons is issued and served upon defendant, and on the day of trial the plaintiff deposits with the justice a verified itemized account, which verification states that the account is true and correct, and no objections are made to the pleading either by demurrer or motion to make definite and certain, held, that the same is a sufficient pleading in a justice of the peace court to require the defendant to deny the account of the plaintiff under oath, and in the absence • of such verified denial and under sections 4759 and 5427, Rev. Laws 1910, the defendant should not be permitted to introduce evidence to refute the items of said verified account.</p> <p>4. Appealj and Error — Discretion of Court— New Trial.</p> <p>The granting or refusal of a _new trial is always a matter largely within the legal discretion of a trial court, and the action of the trial court in granting or refusing a new trial will not be disturbed by this court on appeal, unless it .clearly appears that there was an.abuse of discretion.</p>

<p>(Syllabus.)</p> <p>1. Bills and Notes — Consideration for Not© —Payment of Doubtful Debt — Parol Evidence Affecting Writing.</p> <p>Where three parties participate in a purchase of a farm and under such circumstances as may constitute them a partnership in a land investment, and the land is purchased and part of the consideration is paid and a deed taken in the name of one of the parties, who gives a mortgage back on the land for the balance of the purchase money, and afterwards one of the three parties, and not being the one to whom the land is deeded, approaches the grantor, asking him to accept payment of what he called his part of the purchase money and asking that he be released from the mortgage and that the part of the land that he claimed be released from the mortgage, which the grantor refused to do; it being agreed, however, that the party should pay the grantor a certain sum of money, and this he did, and the grantor gave him a note covering the amount of such payment, and afterwards in a suit to foreclose the mortgage on the land by the grantor the party so making such payment and-taking said note from the grantor, in a cross-bill, sought judgment on the note and against the grantor — held, that the payment of a debt, or the voluntary payment of a questionable debt, cannot be a consideration for a note given by one so receiving said money,, and the note is void for want of consideration. Held, further, that parol proof of the transaction contemporaneous with the taking of said note is competent to show the purpose of taking the same and the manner of payment or liquidation of said note, and does not contravene the rule that parol proofs cannot be taken to contradict the terms of a written contract.</p> <p>2. Appeal and Error — Questions of Fact-Findings.</p> <p>Where a case is tried to the court without a jury, the findings of the court upon disputed questions of fact will be given the same weight and effect as the verdict of a jury, and, where reasonably supported by the evidence, will not be disturbed in the Supreme Court. ; (Schafer v. Lee, 64 Okla. 106, 166 Pac. 94.)</p>

Error from District Court, Ottawa County; A. C. Brewster, Judge. Action by E. A. Martin and others against O. E. Dike and others to recover mining in-térests/' Judgment for plaintiffs, .and defendants bring error.

Erf or’.from. District Court, Garfield County; James J5. Cullison, Judge. Action by the Central State-Bank.of .Enid against C. B. Longco'r, County Treasurer of Garfield County, to recover amount of taxes, paid under protest. Judgment for plaintiff, and defendant brings error.

Error from District Court, Pottawatomie County; Charles B. Wilson, Jr., Judge. Action 'by R. W. Cook, administrator of the estate of Enos Nichols, deceased, against Alexander Fisher et al. Defendants filed a demurrer to the amended petition, which was by the court sustained. Plaintiff elected to stand on his petition and appealed.

Original action by the Consolidated Fuel Company and another to reverse and vacate order of State Industrial Commission overruling motion to vacate award of compensation to Emery Evans.

Error from District Court, Tulsa County; N> E. McNeill, Judge. Action by Charles A. Greenlees against the Tulsa Entertainment Company and others. Verdict and judgment for the plaintiff and against the Tulsa Entertainment Company. The Tulsa Entertainment Company appeals.

M. Davis, Mayor. Referendum petition by W. J. Menden-hall and others on ordinance of the City of Claremore. From finding of the Mayor that petition was insufficient, upon protest of M. R. Harrison and another, petitioners bring error.

Error for District .Court, Coal -County; ■ J. H. Linebaugh, Judge. Action by C. M. Threadgill and twenty-other taxpayers of the Coalgate -School District for an injunction against the Board of Education of the City of Coalgate. The demurrer of the Board of Education was sustained, and. plaintiffs bring error.

Error from District Court, Pontotoc County ; J. W. Bolen, Judge. Proceeding instituted in the County Court by J. H. Weatherly for the probate of the will of Katsey McCarty, deceased. Petition objecting to the probate of the will filed by Somie McCarty et al. W5.ll admitted to probate. Contestants appealed to the District Court. On a trial de novo the District Court admitted the will to probate. Contestants appealed.

Error from District Court, McClain County ; F. B. Swank, Judge. Action by- Lucile M. Oliphint against the Western Indemnity Company and others, to cancel a certain quitclaim deed. Judgment in favor of defendant Western Indemnity-Company decreeing the deed to be a mortgage to secure the payment of a specified sum and creating a valid and subsisting lien on the land therein described. Plaintiff appeals.

Error from District Court, Oklahoj a County; Edward Dewes Oldfield. Judge. Action by A. B. Harn, as receiver of tbv Mlerchants & Planters Insurance Company, a corporation, against Simon Smiith and others, for judgment on a promissory note and foreclosure of a mortgage given to secure the same. Judgment for defendants, and plaintiff brings error.

Error from District Court, Grady County; Will Linn, Judge. Action by Pearl Harwell Smith against H. N. Mullican, County Treasurer, to recover payment of taxes made under protest. Judgment for plaintiff, and defendant brings error.

<p>(Syllabus.)</p> <p>L Statutes; — Construction—Practical Construction.</p> <p>Where the meaning of the statute is doubtful, great weight is given to the construction placed upon it by the department charged with its execution.</p> <p>2. StatutesConstruction — General and Special Provisions.</p> <p>Where there are two provisions of the statutes, one of which is special and particular and. clearly includes the matter in controversy, and where the special statute covering' the subject prescribes different rules and procedure from those in the general statute, it will be held that the special statute applies to the subject-matter, and that the general statute does not apply.</p> <p>3. Indians’ — Conveyance of Land — Validity.</p> <p>Melvina Adams, a full-blood citizen' of the Choctaw Tribe, on December 22, 1903, selected 80 acres as part of her allotment, the same having been set aside or reserved by the Commissioner to the Five Civilized Tribes, in order that the same might be donated to the Murrow Indian Orphans’ Home. On February 10, 1904, Melvina Adams filed with tire Commissioner to the Five Civilized Tribes an affidavit that said land was selected by her for the benefit of said home. Thereafter patent was issued to her, and thereafter Congress, in section 14 of the act of April 26, 1906. authorized members of fee Five Civilized Tribes to donate portions of their allotments to said home, and on July 2, 1909, Melvina Adams conveyed said land by deed to said home, which deed was approved by the Secretary of the Interior on Jnly 8, 1912. Held, said conveyance, when approved by the Secretary of the Interior, was carrying out the intent and purpose of the act' of Congress and said deed is not void, nor in violation of section 19 of the act of April 26, 1906, nor section 5 of the act of May 27, 1908.</p>

Original action in mandamus brought by B. E. Olark. State Highway Commissioner, against J. D. Warner, as County Clerk of McClain County, to, compel the said County Clerk to attest a certain warrant. Alternative writ of mandamus issued.

Error from District Court, Pawnee County; N. E. McNeill, Judge. Action by the Atchison, Topeka & Santa Fe Railway Company against A. W. Johnson, County Treasurer of Pawnee County, to recover taxes paid under protest. Judg- ’ ment for defendant, and- plaintiff brings error.

Error from District Court, Sequoyah County; John H. Pitchford, Judge. Action by James A. Smith and others against A. J. Kennedy, for interest in land. Judgment for defendant, and plaintiffs bring error.

<p>(Syllabus.)</p> <p>Appeal and Error — Failure of Defendant in Error to File Brief — 'Reversal.</p> <p>Where the defendants in error fail to file a brief,, and have not offered' any excuse for such failure, and the plaintiff in error has filed a complete record in the Supreme Court and has served and filed a brief in compliance with the rules of the court, the Supreme Court is not required to search such record to find some theory upon which the judgment below may be sustained; and, where the brief filed by the plaintiff in error appears reasonably to sustain his assignments of error, the court may reverse the ease in accordance with the prayer of the petition of the plaintiff in error.</p>

Error from County Court, Ottawa County; N. C. Barry, Judge. Action by C. C. Caskey against W. A. Wagoner. Judgment for plaintiff, and from order overruling motion for new trial, defendant brings error.

<p>Error from District Court, Grant County; W. M. Bowles, Judge.</p> <p>Action by O. F,. Cameron and another against the Security Insurance Company of New Haven, Conn., for damages for negligent delay in acting upon application for fire insurance. Judgment for plaintiffs, and defendant brings error.</p>

<p>(Syllabus.)</p> <p>Appeal and Error — Review—Assignments of Error — Overruling Motion for New Trial.</p> <p>Where plaintiff in error fails to assign as error the overruling of his motion for a new trial, no question which seeks to have reviewed errors alleged to have occurred during the progress of the trial is properly presented to this court, and such canno.t he reviewed.</p>

<p>(Syllabus.)</p> <p>1. Statutes — Construction — Repeal — General and Special Statutes.</p> <p>It is a canon of statutory construction that a later statute, general in its terms, and not expressly repealing a prior special statute, will ordinarily not affect the special provisions of the earlier statute.</p> <p>2. Same — Indians — Sale of Restricted Land) for Town Sites.</p> <p>The act of March 3, 1903, 32 Stat. L. 982, being- " snecinl statute and aoplying to the sale of restricted lands for town-site purposes, was not repealed by the act of April 26, 1906, 34 Stat. L. 137, the latter being a general statute and not expressly repealing the former.</p> <p>3. Same — Practical Construction of Executive Officers.</p> <p>The principle that the contemporaneous construction of a statute by the executive officers of the government, whose duty it is to execute it, is entitled to great respect, and should ordinarily control .the construction of the statute by the courts. On the faith of a construction thus adopted, rights of property grow up -which ought no.t to be ruthlessly swept aside, unless some great public measure, benefit, or right, is involved, or unless the construction itself -is manifestly incorrect. Held, that the construction placed upon the act of March 3, 1903, and the act of April 26, 1906, and the act of June 21, 1906, 34 Stat. L. 325, by the Secretary of Interior is not subject to either of the above objections.</p> <p>4. Same.</p> <p>A contemporaneous construction by th» executive department of the government of certain acts of Congress which are ambiguous, and doubtful, although such construction is inconsistent with the literalism of the act, but consorts with the equities of the casie as a general rule, is considered decisive.</p> <p>5. Estoppel — Equitable Estoppel Against Government.</p> <p>In a proper case the doctrine of equitable estoppel applies against the government, whether- that of the United States or that of the states.</p> <p>6. Same — Indians 1— Sale of Restricted Land.</p> <p>The theory that estoppel will not apply to restricted Indians, when the validity of a sale of restricted allotment is involved, has no application to -a transaction initiated by the Indian through the Secretary of Interior for the sale of his allotment, when the sale has been had 'by regular procedure through the Department of the Interior and the purchaser has purchased in good faith and paid the full value to the Department of Interior, and has relied upon the construction placed upon the acts of Congress by the Interior Department authorizing the salp.</p> <p>7. Indians — S»*e of Restricted Land Through Interior Department — Legality —Construction of Statutes.</p> <p>Statutes of the United iStates providing for allotment, of Indian lands and patents, with restrictions upon alienation, were enacted .to protect Indians from schemes and fraudulent practices of white men, not to aid in the unconscionable and inequitable enforcement of. stale claims, to the injury of innocent parties who in good faith, for value, and by regular procedure have purchased allotted Indian lands through the Interior Department of the United States.</p> <p>8. Same — Bona Fide Purchasers — Estoppel of Government and Indian Grantor.</p> <p>Where a restricted Indian has alienated or conveyed all or part of his restricted lands through the Department of Interior, and the sale has been conducted in accordance with the policy of the government, and the purchaser, acting in good faith, has paid the full value for the land, there being no fraud, and the government has received the money for the use and benefit of and approved the sale on behalf of the Indian, held, that if the facts are such that the government would he estopped from questioning the validity of the deed, the Indian ‘would likewise be ostooned.</p>

<p>Error from District Court, Okmulgee County; John L. Norfnan, Judge.</p>

Error from District Court, Garfield County; J. C. Rohherts, Judge. Petition by Thomas J. Cooper against Belle Cooper for modification of divorce decree which adjusted property rights. From an adverse judgment, Thomas J. Cooper brings error.

Error from District Court, Lincoln County ; Hal Johnson, Judge. Action toy William T. Moulder against Fredericka Gearhardt and another for damages resulting from obstruction of water course and for abatement of nuisance. Judgment for plaintiff, and defendants bring error.

Error from District Court, Beaver County; Arthur G. Sutton, Judge. ' Action between Clifton C. Cope and the State Bank of Commerce. From order discharging temporary injunction, the former brings error.

<p>Appeal from State Industrial Commission of Oklahoma.</p> <p>Action by the Superior Smokeless Coal & Mining Company and the Consolidated Underwriters to reverse an order of t'he State Industrial Commission awarding workman’s compensation to Jack Bishop.</p>

Pitchford, V. C. J., and Kane, J., dissenting. Error from District Court, Pontotoc County; J. W. Bolen, Judge. Action by John Letty against George W. Armstrong, L. W. Clapp, and others in ejectment and to set aside will and other instruments affecting title. Judgment for plaintiff, and the defendants named bring error.

<p>(Syllabus.)</p> <p>1. Sales — Validity of Contract — False Representati on-s.</p> <p>Where a party positively makes false representations to induce another to enter into a contract with him, and such false representations contributed to induce a party to enter a contract, such contract is voida-bb for fraud, and the rule of caveat emptor cannot be invoked to protect the party making such representations against his fraud.</p> <p>2. Fraud — Statutory Construction.</p> <p>Under section 903, Revised Laws 1910, the positive statement as a fact of that which is not true with an intention to deceive another party, or for the purpose of inducing a party to do that which he otherwise would not do, constitutes fraud.</p> <p>3. Sales — False Representations — Reliance.</p> <p>A purchaser may rely upon representations of his vendor where the property is af a distance, or where for any reason the falsity of the representation is not readily ascertainable.</p> <p>4. Trial — Instructions — Refusal of Requested Instructions.</p> <p>Where instructions as a whole fairly state the law applicable to the case and submit the -respective theories of the parties as made under the pleadings and the evidence, it is not error to refuse a requested instruction.</p> <p>5. Jury — Jury Trial — Issues of Fact — Statutory Construction.</p> <p>Under section 4993, Revised Laws 1910, in an action for the recovery of specific personal property, or its value, the issues of- fact arising under the pleadings and evidence are to be tried by a jury unless a jury trial is waived.</p>

<p>Original action by Cameron Coal Company a ad Consolidated Underwriters, as petitioners, against Jeff Dunn and the State Industrial Commission, as respondents, to reverse and vacate an award made by the State Industrial Commission to Jeff Dunn.</p>

Original action toy Seneca Coal Company and Consolidated Underwriters against Weep Carter and -State Industrial Commission of the State of Oklahoma to reverse and vacate an award made by -the State Industrial Commission.

<p>Error from District Court, Oklahoma County; John W. Hayson, Judge.</p> <p>Action by John A. Northrup against S. L. Lowrey. Judgment rendered for plaintiff, and defendant brings error.</p>

Complaint before the Corporation Commission by the Dewey Portland Cement Company against the Atchison, Topeka & Santa Fe Railway Company and others, seeking re-adjustment of certain freight rates on coal. From the Commission’s orders, the railway companies appeal.

<p>(Syllabus.)</p> <p>1. Constitutional Law — Self-Executing Provisions — Incurring Indebtedness for Public Utilities for City.</p> <p>Section 27, art. 10, of the Constitution is a self-executing grant of power to the qualified property taxpaying voters of a city or town voting at an election held for that purpose, by a majority vote, to become indebted in a larger amount than that specified in sections 9 and 26, art. 10, of the Constitution, for the purpose of purchasing or constructing public utilities, or for repairing the same, to be owned exclusively by such city.</p> <p>2. Municipal Corporations — “Public Utilities” — Light Plant.</p> <p>Electric light plants are “public utilities” within the meaning of the term as used in section 27, art. 10, of the Constitution.</p> <p>3. Constitutional Law — Self-Executing Provisions — Power of Legislature to Abridge or Extend — Grant of Power to Cities.</p> <p>The Legislature of this state has no power to abridge or extend, by construction or otherwise, a provision of the Constitution of this state which is a self-executing grant of power to the qualified property tax-paying voters of a city or town, where srich a constitutional provision is complete in' itself.</p> <p>4. Same — Incurring Indebtedness for Public Utilities for City-</p> <p>Section 27, art. 10, of the Constitution of this state is a grant of power to the people of the municipalities of this state named therein, is complete in itself, and needs no further legislation to put it in force.</p> <p>5. Same — Invalidity of Statute Abridging Constitution.</p> <p>That part of section 1, c. 169, of Session Laws 1913, providing that “before any indebtedness under the provision of section 27, art 10, of the Constitution shall hereafter be incurred by such city or town, it shall be necessary that the same shall have received more than fifty per centum of all such qualified property tax-paying voters of such city or town,” is invalid, because it is in conflict with section 1, art 4, of the Constitution, in that it is an attempt to exercise power not warranted by said section 1, art. 4, of the Constitution.</p> <p>6. Constitutional Law — Construction — Defeat of Object.</p> <p>The construction of a constitutional provision must not be so strict or technical as to defeat the evident object and purpose of its adoption.</p> <p>7- Municipal Corporations — Bond Election for Pu lie Utility — Constitutional Provision — Construction.</p> <p>That part of selction 27, art. 10, of the Constitution providing that '“any incorporated city or town in this state, may by a majority of the qualified property tax-paying voters of such' city or town, voting at an election held for that purpose,” means a majority of such voters voting, in contradistinction’ to “a majority of such voters in such city or town’.’</p> <p>8. Same — Injunction to Test Validity of Bonds — Judgment Affirmed.</p> <p>Record examined, and held, that the judgment of the trial court should be affirmed.</p>

Error from District Court- Stephens County ; Cham Jones, Judge. Action by the City National Bank of Duncan against W. E. Delk and another on notes. Judgment for plaintiff, and defendants bring error.

<p>Error from District Court. Lincoln County; Hal Johnson, Judge-</p> <p>Action by Dillie Allen against W. H. Allen for divorce. Judgment for plaintiff, and defendant brings error,.</p>

<p>Error from County Court, Cleveland County] George Allen, Judge.</p> <p>Action by the Security State Bank against ,1. L. Corbett, County Treasurer. Judgment for plaintiff and defendant brings error.</p>

Error from District Court, Rogers County; C. W. Mason, Judge. Actions for writs of mandamus by Geo. R. Broadwell, by the Farmers’ Bank & Trust Company, and by the First National Bank of Claremore, against John C. Dirick-son and others, constituting Board of Commissioners of Rogers County and as such the Drainage Board of Drainage District No. 1. Judgment for defendants, and plaintiffs bring error.

<p>(Syllabus.)</p> <p>1. Mandamus — Ministerial Duties of Officers.</p> <p>A writ of mandamus may lawfully issue, from a court having jurisdiction, to compel an executive officer to perform a mere ministerial duty, which does not call for the exercise of his judgment or discretion, but which the law gives him the power and imposes on him the duty to do.</p> <p>2. Mandamus 1— Peremptory Writ Without Evidence — Lack of Defense.</p> <p>In mandamus proceedings, where the aver-ments in the alternative writ are sufficient to authorize the relief sought, and the return of the respondent does not state a defense, it is not error for the trial court to grant the peremptory writ without hearing testimony.</p>

Error from District Court, Greer County; Thomas A Edwards, Assigned Judge. Action by John Cooksey against Bertie Cooksey for divorce and custody of child. Judgment for plaintiff, and defendant brings error.

<p>Original action by the Southwestern Grocery Company to review order of State Industrial Commission awarding workmen’s compensation to Ralph Radecke.</p>

Hence, for the sole reason that this appropriation is not made in strict compliance with the law, this court is of the view that it is an invalid appropriation. Not because the Governor has disapproved this item after the adjournment of the Legislature, but simply because it has not become a law as •required by the provisions of the Constitution. Eliing and Kennamer, JJ., dissenting. Error from District Court, Oklahoma County; Cham Jones, Assigned Judge.

Error from District Court, Lincoln County; Wm. M. Bowles, Assigned Judge. Action by Sallie N. Johnson against W. L. Johnson and others to set aside conveyance of real estate. Judgment for defendants, and plaintiff brings error.

Error from District Court, Mayes County; A. C. Brewster, Judge. Action by Mary England and another against A. C. Baird and others, to set aside a conveyance and quiet title in plaintiffs to a certain tract of land. Judgment in favor of the plaintiffs, and defendants appeal.

Error from District Court. Creek County: Ernest B. Hughes, Judge. Action by Jess Hopkins and another against S. B. Logan and others on bond. Judgment for plaintiffs, and defendants bring error.

Error from District Court, Tulsa County; N. E. McNeill, Judge. Action by G. E. R. Kinnear against the ■S. O. Oil Company, a copartnership, et al. When the case was called for trial, S. W. Parish was by leave of court made a party plaintiff. Verdict and judgment for plaintiffs. Defendants appeal.

Error from District Court, Lincoln County; Charles B. Wilson, Jr., Judge. Action by J. G. Loy against J. E, McDowell to recover a money judgment. Verdict in favor of- defendant. Verdict set aside, and the court attempted to render a judgment .modifying the verdict. Plaintiff appeals.

Error from District Court, Osage County; Chas. B. Wilson, Jr., Judge. Action by Elijah Hartness against Boyce E. Day and others. Judgment for plaintiff, and defendant Boyce E. Day, administrator of the estate of John A. Day, brings error.

<p>Error from District Court, Payne County; John P. Hickam, Judge.</p> <p>Injunction by the Creek County Gas Company against F. J. Springer, Justice of the Peace, and others. Temporary injunction dissolved, and plaintiff brings error.</p>