Volume 86 — Oklahoma Reports

<p>(Syllabus.)</p> <p>1. Constitutional Law — Legislative and Judicial Powers — Control of Persons Non Sui Juris — Vested Rights.</p> <p>The requirements of a well-organized and civilized government require that the power to control the persons and property of those non sui juris, such as infants, lunatics, and those held incompetent, and being such persons as are incapable of contracting themselves, must be vested somewhere, and this power rests primarily in the people as parens patriae and their legislative department of government, and it continues to reside in such department Until the people, by their Constitutions, have’ taken it from the Legislature and vested it elsewhere, and most generally, in such instances, in the courts. The Legislature- itself may vest it in the courts. Where such jurisdiction is vested in the courts by the Constitution, the Legislature cannot infringe upon such constitutional jurisdiction. Where tne Legislature itself grants the power to the courts, it having the power to give, it has the power to take away. The only limitation on this legislative power is that if rights have become vested under the grant of a power, the Legislature cannot encroach upon such vested right by enactments that affect or destroy such vested rights.</p> <p>2. Same — Vested Rights — Indians — Removal of Restrictions.</p> <p>The Congress of the United States, so long as it possesses jurisdiction of an Indian or Indian Tribe, has the power to place restrictions upon alienation of the lands of such Indian or tribe, and at the same time the Congress has the power ,to remove such restrictions upon alienation, if in the judgment of Congress it is wise to do so, and the only limitation upon this power of Congress is .that it cannot disturb, by its enactments, rights that have become vested under any former enactments, either in favor of the Indian or of third persons; and the exercise of such power by Congress, as thus defined and limited, is no.t in contravention of the Fifth Amendment of the Constitution of the United States, which provides that no person shall be deprived of property without due process of law. This is upon the theory that no person can base a claim to a vested right in the denial of a right. A disability is not a property right, and the assertion of a vested interest therein is a legal fallacy. (Loman et al. v. Paullin,, 51 Okla. 294, 152 Pae. 73.)</p> <p>3. Indians — Governmental Control — Relation of Parens Patriae.</p> <p>Indian Tribes and individual members thereof are primarily under the control and supervision of the Congress of the United States, and so long as this power subsists the Congress has plenary authority to control and direct the disposition of the property rights of the Indian as a member of a tribe or as an individual, and the doctrine of parens patriae applies to this relation between Congress and the Indians, that of guardian and ward, and is sovereign in its scope.</p> <p>4. Same — Powers of Congress — Refnoval of Restrictions on Allotment — Special Acts.</p> <p>Restrictions upon landed allotments of Indians arising by reason of enactments of Congress, whether based upon minority or ■ degree of blood or both, is an exercise of plenary power of Congress heretofore defined, and being an exercise of the will and discretion of Congress, and Congress has equal unlimited power to remove such restrictions, as the judgment and discretion of Congress may dictate, and Congress may express this will by a general enactment or by a special enactment applicable to a particular Indian and affecting his particular allotment.</p> <p>5. Same — Special Act Validating Sale by Guardian.</p> <p>A proceeding pursued in a guardianship court seeking to convey .title to an allotment or a portion thereof of a minor Indian whose lands at the time of such attempted involuntary conveyance are restricted as to alienation, such court at the time not being authorized thereunto by Congress, is a void proceeding, and a deed procured thereunder is a nullity. But it is held that Congress, by a subsequent special act and while said Indian allottee is still under the jurisdiction of Congress and the allotted lands of said Indian, and their disposition are still under ,the control of Congress, may remove such restrictions and approve and validate said transaction and make the deed of force and' effect from its date.</p>

Error • from District Court, Jefferson County; Cham Jones, Judge. Action by the Lawton Refining Company against S. L. Hollister for purchase price of gasoline; cross-petition by ‘defendant for damages for breach of warranty. Judgment for defendant, and plaintiff brings error.

<p>.(Syllabus.)</p> <p>1. Insurance — Fraternal Life ' Policy — Incontestability.</p> <p>Where a fraternal insurance certificate provides it is subject to the provisions of the by-laws and constitution of the fraternal society, and the constitution and bylaws provide that after the policy has been in force for more than five years immediately prior to the death of the insured, the same shall be incontestable for any reason, except the insured died by the hands of the beneficiary named therein, and if it is ■ clearly shown that the same was not an accident, held, that such provision is a valid and binding provision, and precludes other defenses.</p> <p>2. Same — Construction—Ambiguity.</p> <p>Where a fraternal insurance policy provides that the same shall be subject to all the rules and regulations and constitutions and by-laws of the society, and the constitution or by-laws are ambiguous and subject to two constructions, one of which will give the policy effect, the other render it void, that construction should be adopted which will make the policy effective.</p> <p>3. Same — Terms of Contract — How Determined.</p> <p>The terms of a contract between a fraternal benefit society and its members are to be determined by the constitution and laws of the society as they exist at the beginning of the membership, and» as they may be lawfully amended from time to time thereafter, and by agreement made pursuant thereto between the incoming members and the society.</p> <p>4. Same — Power to Change Constitution ;and Laws of Fraternal Society.</p> <p>The power accorded to such a society in its charter to alter and repeal its constitution, by-laws, rules and regulations enters into and forms part of the contract of in-suranco between the society and. its members, when the latter, as applicants for membership, promise not only to conform to and abide by the constitution and laws of the society as they then exist, but also ns they may thereafter be altered or amended.</p> <p>5. Same — limitation of Power — Vested Rights.</p> <p>Such reserve power of amendment and repeal does not, however,, give the society any right to adopt a by-law which wiil divest, impair, or disturb the rights once vested in its members, for such a by-law would be unreasonable.</p> <p>6. Same — Amendment of Constitution — Retroactive Effect.</p> <p>Where, after a benefit certificate which was declared subject to the provisions of the constitution and by-laws was issued, the constitution and by-laws providing that after the policy had been in force for more than five years immediately prior to the death of the insured the same should be incontestable for tiny reason except certain enumerated reasons, and after the policy had been in effect for a period of eleven years, the constitution was amended to include “engaging in a hazardous occupation,” and it appears that the deceased had engaged in such hazardous occupation, and had been so engaged for more than six years, although he had not paid the increased premium, but the premiums tendered had been accepted by the company, held, that the provision, “or engaged in a hazardous occupation,” did not expressly declare that it should be retrospective, and it should not be given that construction to deprive the insured of a vested right, and apply to a certificate already issued, and does not apply to the certificate under the facts in the case at bar.</p>

<p>(Syllabus.)</p> <p>1. Banks and Banking — State System — Constitutional Provision.</p> <p>Section 1, article 14, Williams’ Constitution, is the keystone of the body of laws relating to banks. and banking subsequently enacted by the Legislature in pursuance of its mandate.</p> <p>2. Same — Legislative Enactments.</p> <p>This section of the Constitution charges the Legislature with the duty of enacting general laws embodying the two central and closely related ideas made prominent therein, to wit: First, control and regulation of state banks by a banking board under the •control of the Bank Commissioner; and, second, protection of depositors and individual stockholders.</p> <p>3. Same.</p> <p>The very first session of the Legislature convening after statehood vitalized this provision of the Constitution by enacting chapter 6, Session Laws of 1907-1908, entitled “Banks and Banking.”</p> <p>4. Same — Banking Department — Depositors’ Guaranty Fund.</p> <p>This chapter contains an elaborate system of laws relating to banks and banking, which, among other things, provides as directed for the creation of a banking department to be under the control of a Bank Commissioner with sufficient power and authority to regulate and control all state banks, and also provides for the establishment of a depositors’ guaranty fund for the protection of depositors and individual stockholders.</p> <p>5. Same — Construction of Statutes.</p> <p>While this system of laws has been amended from time to time, it has remained substantially the same. Provisions thereof having the most direct bearing on the question involved, herein as they now exist may be found in sections 276-298, 299, 300-302-304, Rev. Laws 1910, and certain provisions of the Session Laws of 1913 and 1915. These acts of the Legislature being passed in pursuance of the direct mandate of the Constitution to carry out specific objects, they must be liberally construed to put into effect thei constitutional mandate.</p> <p>6. Same — Special and General Provisions.</p> <p>The'system of laws vitalizing the Constitutional mandate being special acts applying only to banks and trust companies, they supersede the general laws relating to winding up the affairs of other corporations.</p> <p>7. Same — Insolvent State Banks — Exclusive Jurisdiction of Bank Commissioner.</p> <p>This system of laws, and particularly the section thereof specifically referred to in this opinion, confer upon the Bank Commissioner, or some person under his control and direction, the sole and exclusive jurisdiction to take possession of an insolvent bank and proceed to wind up its affairs and enforce the personal liability of the stockholders, officers, and directors.</p> <p>8. Same — Operation of Bank Guaranty Law.</p> <p>By this system of laws it was the intention of the Legislature that the bank guaranty law shall function in two ways, to wit • First, by immediately paying the depositors of the insolvent bank in full with cash available, or that can be made immediately available from the assets of the bank, together with the money on hand in the guaranty fund, where such fund is sufficient for that purpose; and, second, where such funds are not sufficient for such purpose, by issuing certificates of indebtedness payable from year to year as money comes into the guaranty fund out oí the assessments and emergency assessments levied against solvent banks as provided by law.</p> <p>9.Same — Interference by District Court Through Keceivers.</p> <p>That the law is functioning under the one mode or the other furnishes no warrant whatever to the district court to interfere with the bank commissioner by the appointment of receivers, where he is proceeding as directed by sections 302 and 304, Rev. Laws 1910, to wind up the affairs of a failed bank and to enforce the personal liability of the stockholders, officers, and directors.</p> <p>19. Same — “Winding Up Affairs of Failed Banks.”</p> <p>The term “wind up,” when construed in connection with the context of the section in which it is found and in connection with the broad terms of section 304, supra, undoubtedly embraces the entire process of settling the accounts and liquidating the assets of insolvent banks for the purpose of distribution among creditors and dissolving the corporation.</p> <p>11. Same — Status of Guaranty Fund and Failed Bank — Distribution of Assets.</p> <p>The guaranty fund is created by assessments and replenished toy emergency assessments levied against solvent banks, and it becomes a creditor of the insolvent bank whenever it pays the depositors of such bank, and in that event its status is just the same as that of any other creditor, except the state has a first lien upon the assets of the bank to secure the payment to the guaranty fund of such sum or sums as it has actually paid out to the depositors of such bank. If the guaranty fund does not become a creditor of the failed bank; that is, if there is no money paid out of the fund to the depositors of such failed bank, the assets of the bank are distributed among the depositors and other creditors in the process of winding up the affairs of such bank pursuant to the general directions to the Bank Commissioner contained in the general statute hereinbefore referred to.</p> <p>12. Same — Constitutionality of Biank Guaranty Law.</p> <p>As thus administered, the guaranty feature of the law can never result in the taking of anything of value from the depositors of failed banks, and it is, therefore, impervious to the charge of unconstitutionality made against it.</p> <p>Miller, Elting, and Kennamer, JJ., dissenting.</p>

Error from District Court, Bogan County; John P Hicks.m, Judge. Action by S. W. Hogan against Bettie ;B. Reiker and others to foreclose mortgage. Judgment foor defendants, and pla’rtiff brings error.

Proceeding by the Muskogee Gas & Elec- | trie Company, a corporation, to increase the] tafie to be charged for electric current. I Temporary order of the Corporation Commission granting an increase in the rates to be charged. Motion by the Chamber of Commerce of Muskogee and certain citizens to -review the temporary order increasing rates. Motion sustained, and former rates reinstated. From the order sustaining the motion, Muskogee Gas & Electric Company' appeals.

<p>(Syllabus.)</p> <p>1. Master and Servant — Workmen's Compensation Law — “Hazardous Employment.”</p> <p>Section 2, article 1, chapter 246, of the Workmen’s Compensation Act provides in substance as follows: Compensation provided for in this act shall be payable for injuries sustained by employes engaged in the following hazardous ¡employments, to wit: Printing plants, where machinery is used; and subdivision 1 of section 3 provides that hazardous employment shall mean manual or mechanical work or labor connected with or incident to one of the industries, plants, factories, etc., mentioned in section 2.</p> <p>2. Same — Sufficiency of Evidence.</p> <p>There is evidence in the record reasonably tending to show that the claimant was engaged in hazardous employment, within the meaning of the foregoing sections, at the time of his injury..</p> <p>3. ¡Same — Notice of Injuries — Excuse for Failure — Right to Medical Attention.</p> <p>Record examined, and held: (1) That the commission was warranted in excusing the claimant from giving notice in strict compliance with the requirements of section 8. article 2, chapter 246 of the Workmen’s Compensation Act. (2) That for failure to comply with the positive provisions of section 4, art. 2, chapter 246. the claimant is not entitled to recover for medical, surgical, or other attendance or treatment.</p> <p>4. Same — Award for Injuries — Commuting Payments to Lump Sum.</p> <p>That part of section 15, article 2, of the Workmen's Compensation Act which provides that the commission may commute periodical payments to a lump sum does not require the commission to make the gross sum allowed lighter or less in amount than the sum of the periodical payments to which the claimant would he entitled.</p> <p>5. Same — -Review of Order.</p> <p>Record examined, and held, that the action of the commission in commuting the periodical payments to one lump sum was in the interest of justice.</p>

From orders of Corporation Commission fixing ra-tes for circuses and carnival movements, the Atchison, Topeka & ¡Santa Fe Railway Company and other carriers appeal.

<p>Error from District Court, Okmulgee County ; John Norman, Judge.</p> <p>Action by the State, on relation of the Attorney General, against W. J. Harmon to enforce liability of stockholder in failed bank. Prom order of district court ap-. pointing receiver and enjoining action of State Bank Commissioner, the State brings error.</p>

Error from District Court, Okmulgee County; Mark L. Bozarth, Judge. Action by Herbert E. Smith against Mary and Robert West, Frank Sierzek, and others, to foreclose mortgage. Judgment for plaintiff, and Sierzek and other defendants bring error.

<p>Error from District Court, Grady County; Will Dinn, Judge.</p> <p>A. tiou by H. F. Thrasher and J. H. Thrasher against thfi St. Louis & iSan Francisco Railway Company to recover damages for the alleged wrongful death of Mary L. Thrasher, deceased. Judgment for defendant, and plaintiffs bring error.</p>

<p>.Error from District Court, Pontotoc County; J. W. Bolen, Judge.</p> <p>Action by C. B. .Saunders against Alexander New and H. C. Ferris, receivers for Missouri, Oklahoma & Gulf Railway Company, to recover damages for personal injuries -received. Judgment for plaintiff in the sum of $20,000, and defendants bring error.</p>

<p>(Syllabus.)</p> <p>1. Public Lands — Ke-Leasjng .Oklahoma •Lands — Preference Rights — Statutes.</p> <p>The act of Congress, March 3, 1891, 26 Stat. L. 1026, does not provide for a preference right to re-lease-the public lands of the territory, nor do any, subsequent abtsjCper-taining to the subject .prior to-the jtassagé-iof the'Enabling Act, provide- for ■ the rteleasijig of such lands, nor for a, prefeieflcd rd'gBsfcritb the original lessee.</p> <p>2. Same — Purpose of Reservation from Settlement.</p> <p>The moving and expressly designated purpose set forth in the various acts of Congress, pertaining to the. public lands which were reserved .for the future state, was that sections 16 and 36 of each township should constitute a permanent school fund for the common school; that sectjion IS in each township, in the portions of tire state where ■sections 13 and 38 were reserved from settlement, was reserved for university and other school purposes, and section 33 reserved for public building purposes; and no other purpose is given by Qongress for re-feeirving said lands from settlement except the designated purposes mentioned.</p> <p>3. Same--Re-Leasing — Preference' Right of Lessee.</p> <p>After the approval of the act of March 3, 1891, supra, the Secretary of the Interior made a rule, of which the following is the pertinent part: “In case a new lease is made at the end of the third year, the preference right shall be given the former lessee.” Held, this did not grant to the lessee the right to lease in perpetuity, but merely granted a preference right to re-lease under conditions prescribed in ease the territory chose to re-lease such lands.</p> <p>4. Same — Grant of Lands to State — Effect —Constitution.</p> <p>The grant of lands, to wit, sections 16 and 36 for common school purposes, section 13 for the support of higher institutions of learning, and section 33 for the purpose of public building, and the acceptance of such lands by the state by express provision of the Constitution, constituted a complete contract and compact between the government of the United 'States and the state of Oklahoma, and supersedes all previous acts, rules, and regulations in conflict therewith.</p> <p>5. Same — Enabling Act — Limitations Upon Sale by State.</p> <p>Said act of Congress, known as the Enabling Act, did not impose upon the state the obligation to sell said lands, or any of them, but merely provided that if sold they should be sold in .the manner provided for-ín the grant and acceptance by the Constitution.</p> <p>6. Same.</p> <p>The state could have had it so elected, retained said lands, and all of them, as a permanent fund for the respective purposes for which they were granted, and never sold any or them at any time, and yet not violated any condition of the grant.</p> <p>7. Same — Limitations Upon Leasing.</p> <p>Neither was the state obliged to lease any of said lands beyond the conditions expressed in the Enabling Act and accepted under the Constitution.</p> <p>8.Same — Rights Under Leases Antedating Statehood.</p> <p>Lessees, holding under leases granted prior to statehood, have no rights under the lease except those expressly provided for in the Enabling Act, the Constitution, and. the statutes of Oklahoma, and the terms of their lease contract.</p> <p>anu i*as----IWgHtS Lessee of State Land. ui Agricultural</p> <p>Neither under the conditions of the Enabling Act, the provisions of the Constitution, nor the terns of the lease contract involved here, Is the agricultural lessee, defendant in error, W. T. Price, entitled to the oil and gas and other minerals in said land until same Is conveyed to him by the state, nor has he power to force the state to convey same to him until the state elects to do so.</p> <p>10. same — Validity of Oil and Gas L.ease on Public Lands.</p> <p>The oil and gas lease herein granted to the Magnolia Petroleum Company by the Commissioners of the Land Office is not in conflict with the conditions of -the grant, nor the acceptance, thereof, nor with the statutes of Oklahoma, and is a valid lease.</p> <p>11. Same — Rights of. Agricultural Lessee.</p> <p>The defendant in error W. T. Price is not authorized to interfere with the operation of said oil and gas lease, but is entitled to whatever damages he may sustain to the operation of his agricultural lease by reason of the operation of such oil and gas lease.</p>

Error from District Court, Oklahoma County; Edward Dewes Oldfield, Judge. Action by George F. Clark, member of the State Board of Public Affairs, against Prank C. Carter, as State Auditor, for a writ of mandamus to compel said Prank 0. Carter, as auditor, to allow a claim of said George P. Clark and to issue warrant therefor for traveling expenses incurred by said George P. Clark in the discharge of his duties as a member of the State Board of Affairs.

Error from District Court, Nowata County : C. W. Mason, Judge. Proceeding in mandamus by J. T. Thompson and others against the Board of Commissioners of Nowata County.to compel the selection of a site and the building .of a schoolhouse for the separate colored school of Consolidated District No. 1 of Nowata County. Judgment for defendants, and plaintiffs bring error.

Error from District Court, Carter County; W. E. Freeman, Judge. Action by Riley Jackson against J. S. Carroll and others, to quiet title, etc. Judgment for defendant named, and plaintiff brings error.

<p>Error from District Court, Tillman County ; Frank Matthews, Judge.</p> <p>Action by J. B. Whitehead against T. 0. Davis, Superintendent of Public Instruction of Tillman County, for injunction. Judgment for plaintiff. Defendant appeals.</p>

Error from District Court, Pawnee County; Redmond S. Cole. Judge. Action by August Lindeberg against L. F. Messman and others to quiet title. Judgment for defendants, and plaintiff brings error.