such laws no assessment could become final and complete, so as to form a basis for incurring indebtedness, until the territorial board of equalization had made its return to the several county clerks in 1891; that, when there had been no assessment of property for purposes of taxation, there was no power to incur indebtedness; that two factors entered into the power of cities to become indebted (one, the assessment of property for territorial and county taxes previously made; the other, the aggregate amount of debts existing), and, if the first factor is absent, there is no authority to become indebted, and all debts incurred or imposed prior to such assessment are void. This proposition of law as stated in that case has been modified by the subsequent decision of this court in Hoffman v. County Com'rs, 3 Okl. 325, 41 Pac. 566, and Sauer v. McMurtry (Okl.) 46 Pac. 576. It is not necessary that we should review the correctness of the conclusion of the court in these last two cases in thus modifying the law as stated in the New Vienna Bank Case upon that point, as that question is not involved in the case at bar; the allegation of the return of the respondents averring that there was an assessment of the property in the city of Guthrie for the purposes of territorial and county taxation prior to the making of the warrants in controversy in this cause. And as to the question involved in this case, and decided in the New Vienna Bank Case, the doctrine of that case is expressly affirmed in both the subsequent cases; so that since the decision in the case of City of Guthrie v. Territory, supra, the decisions of this court have been uniform in holding that the act of congress of July 30, 1886, is a limitation upon the legislature, as well as upon the city authorities, in the creation of city indebtedness, and that any indebtedness, whether created by the city authorities or by the legislature, in excess of the limit of 4 per cent. of the assessed valuation of property within the city, determined by the last assessment thereof for territorial and county purposes, is without authority of law and void.

The conclusion of this court upon this point in the New Vienna Bank Case, and its construction of the act of congress of July 30, 1886, is supported and sustained by the great weight of authorities. Lake Co. v. Rollins, 130 U. S. 662, 9 Sup. Ct. 651; Doon Tp. v. Cummins, 142 U. S. 366, 12 Sup. Ct. 220; Litchfield v. Ballou, 114 U. S. 190, 5 Sup. Ct. 820; County of Dixon v. Field, 111 U. S. 83, 4 Sup. Ct. 315; Sutliff v. Commissioners, 147 U. S. 230, 13 Sup. Ct. 318; Lake Co. v. Graham, 130 U. S. 683, 9 Sup. Ct. 654; Buchanan v. City of Litchfield, 102 U. S. 278; People v. May (Colo. Sup.) 10 Pac. 641.

If the proposition involved was a new proposition, that had not received repeated careful consideration by this court, or been elucidated by authorities, we would yet have no difficulty, from the plain language of the statute of 1886, to determine the meaning and intent of

congress, and the exact limitation intended to be imposed thereby upon the powers of those intrusted with the creation of municipal indebtedness, or whether the legislature of the territory, as well as the governing authorities of the corporation, were inhibited from creating an indebtedness in excess of the limit prescribed by that law. The language of the act is not that no political or municipal corporation, etc., shall create indebtedness which shall, in the aggregate, exceed the limit, but its language is "that no political or municipal corporation, county or other sub-division in any of the territories of the United States shall ever become indebted in any manner," in the aggregate, exceeding such limit. It may be assumed that congress, in thus legislating, had in contemplation the existence of conditions requiring congressional action for the correction of an existing evil; that that evil existed in the ur restrained power of accumulating and creating municipal indebtedness beyond the ability and resources of the municipalities to make payment; that it intended to restrain such power, and to put a fixed limit to the indebtedness that might be a charge upon the property of the citizens of any municipality within the territories. Such being the spirit and purpose of the act, it may also be assumed that congress had the wisdom to use, and did use, in the enactment, language that could only be construed as effective of such intent and purpose. It will not, therefore, be assumed (the language of the act not warranting such assumption, but clearly negativing the same) that congress simply intended to limit the powers of the governing body of the corporation in this behalf, and yet left the authority existing in the legislature to impose liabilities to an unlimited extent, and thus defeat the very spirit and purpose of the enactment. If the legislature may lawfully provide for increasing the indebtedness of a municipality beyond the 4 per cent. limit, and to any extent, then the spirit of the law can be evaded, and a prohibition upon the governing body of the corporation alone would be nugatory to meet the condition and remedy the evil which was the object of the enactment; and, when congress provided that such corporation should not "become indebted in any manner" in excess of the limit provided, it meant just what that language imports,-that not in any manner, whether by corporate action or by legislative action, should such indebtedness be extended beyond the limit. We entertain no doubt that if, when the warrants in question in this cause were issued, the indebtedness of the city of Guthrie was in excess of 4 per cent. of the value of the taxable property within said city, as shown by the last assessment thereof for territorial and county taxes, chapter 14 of the Statutes of 1890 was invalid to make warrants valid as a legal indebtedness against said city, or to authorize enforcement of the payment thereof by the

levy of a special tax upon the property of the citizens of said city.

Counsel for the relator contend that: "The warrants sought to be collected in this proceeding were issued in payment of the judgment rendered upon a settlement and compromise of more than ten thousand dollars in claims against these various municipalities [provisional governments]. That judgment stands unreversed and unsatisfied, and we contend that the settlement of claims ascertained in good faith, the validity of which has been doubted, constitutes a valid compromise, which will not be disturbed in the absence of fraud, undue advantage, or mistake." We concede the soundness of this proposition as an abstract proposition of law, but it has no application to the questions involved in the case at bar. That rule only applies where the judgment is rendered by a court of competent jurisdiction in a cause wherein it has jurisdiction to render the judgment the validity of which is thus asserted. But, where a court renders a judgment in accordance with a statute to create obligations the creation of which is prohibited by paramount law, the judgment of the court has no more validity than the invalid statute it seeks to enforce. And this whether such judgment be by compromise and agreement of the parties to the record or otherwise. The want of authority to make the indebtedness for which these warrants were issued a legal indebtedness against the city of Guthrie extended to a want of authority in the court to declare such indebtedness valid, or to make the warrants valid; and the mayor and common council were not authorized, by consenting thereto, to confer authority upon the court to make them valid. In an action brought by a town to enjoin perpetually the collection of certain bonds, on the ground that they were without authority of law, by the decree it was ordered, by consent of the parties, that the preliminary injunction should be dissolved and the demurrer be overruled. The decree set forth that the suit had been settled by agreement, a copy of which was embodied in the decree. The plaintiffs agreed, notwithstanding the averments of the bill, that the bonds were valid. The decree then stated that in pursuance to that agreement, and by consent of the parties, "it is decreed that the New Orleans, St. Louis & Chicago Railroad Company shall issue to the town the certificates of stock in the company referred to in the agreement; that on the presentation of those certificates the town shall have its corporate seal affixed to each of the twelve bonds; and that the bonds and their coupons are declared to be valid and binding on the town and its authorities." The supreme court of the United States in that case said: "This was no adjudication by the court of the validity of the bonds, on the submission to it, as a judicial tribunal, of the question of such validity. The declaration of the validity of the bonds

contained in the decree was made solely in pursuance of the consent to that effect contained in the agreement signed by the mayor of the town and the officers of the railroad company. The act of the mayor in signing that agreement could give no validity to the bonds, if they had none at the time the agreement was made. The want of authority to issue them extended to a want of authority to declare them valid. The mayor had no such authority. The decree of the court was based solely upon the declaration of the mayor, in the agreement, that the bonds were valid, and that declaration was of no more effect than the declaration of the mayor in a bill in chancery that the bonds were invalid. The adjudication in the decree cannot, under the circumstances, be set up as a judicial determination of the validity of the bonds." Kelley v. Town of Milan, 127 U. S. 139, 8 Sup. Ct. 1101.

A further contention of counsel for relator is that, to make the warrants invalid under the effect of the act of congress of 1886, "the four per cent. limit must have been exceeded at the time the debt was contracted, in order to invalidate the claim, which is not alleged; that the warrants are merely evidence of a pre-existing debt, and show it when providing for interest from June 3, 1891, although issued June 6, 1893. This position is not tenable. The unauthorized debts and obligations of the provisional governments had no validity, and could not be made a charge against, or a part of the indebtedness of, the city of Guthrie, until, by force of a valid statute, they were made a part of such indebtedness. There was no attempt, under the pretended force and authority of chapter 14 of the Laws of 1890, to make that part of such indebtedness as was the foundation of the warrants in this case a part of the indebtedness of the city of Guthrie until June 6, 1893. If that statute had been a valid statute, such indebtedness would not have become any part of the indebtedness of the city of Guthrie until, by the procedure provided for in the statute, it had been made so; and if, at the time it was sought to be validated and made a part of such indebtedness, the aggregate of the indebtedness of the city exceeded the limit authorized by the act of congress, then the proceeding to make the same an indebtedness of the city was nugatory and void.

Another contention of relator's counsel is that these warrants are not a part of the indebtedness of the city of Guthrie, and did not increase the aggregate of the indebtedness of said city; that they are warrants against parts only of the city, and are in the nature of local assessments drawn on special funds; and it is argued that this is shown because an action at law would not lie against the city upon them. This reasoning, if sound, would be more effective to destroy the efficacy and purpose of the act of congress of July 30, 1886, than to hold that its inhibition only

extended to the corporate body of the municipality, and not to the legislature. We have shown that the spirit and purpose of that act was to fix the limit of indebtedness for the payment of which the property of the citizens within the municipality might be taxed; and if a city can create an unlimited indebtedness merely by dividing the burden and responsibility of its payment upon its different wards and subdivisions, or the property within such wards and subdivisions, and not upon the corporation as a whole, then the act of congress is without force. That act of congress means that the aggregate of property within a municipality shall not be burdened by an indebtedness exceeding 4 per cent. of its assessed valuation, and no attempted distribution of the burden of payment upon different parts of such aggregate of property will authorize an indebtedness in excess of that limit. These warrants, if an indebtedness at all, can only be the indebtedness of the city of Guthrie. Its subdivisions are not legal entities. They have no power, and never have had power, to contract debts or incur liabilities. They cannot sue or be sued. No debts can be contracted or incurred except by the city. The statute under which they were issued expressly makes them an indebtedness of the city. The manner in which it provides for their payment does not change their character as an indebtedness of the city. If that act were valid to make them legal obligations, but invalid as to its provisions relating to the assessment and collection of taxes for their payment, no one would contend that they could not be enforced as liabilities of the city. The return in this cause, having clearly averred the illegality of the warrants,-that when they were issued the indebtedness of the city of Guthrie already exceeded the limit authorized by law, being more than 4 per cent. of the assessed valuation of property in said city as shown by the last previous assessment for territorial and county taxation,-presented a clear defense to the alternative writ in this cause. The issue of fact tendered by the return should have been tried by the court below, and it was error for the court to award a peremptory mandamus without the trial of such issue. This cause must therefore be reversed and remanded, with instructions to the court below to proceed in accordance with this opinion. It is so ordered. The other judges concur, except DALE, C. J., not witting.

(5 Okl. 216)

SPENCER, City Treasurer, v. TERRITORY ex rel. GRAY.

(Supreme Court of Oklahoma. Feb. 12, 1897.) CONSTITUTIONAL LAW LEGISLATIVE POWERS MUNICIPAL INDEBTEDNESS.

The decision of the court below is reversed, and this cause remanded, for the rea

son announced in the case of Martin v. Territory (decided at this term) 48 Pac. 106. (Syllabus by the Court.)

Error from district court, Logan county; before Justice Frank Dale.

Mandamus by the territory, on the relation of W. H. Gray, receiver of the National Bank of Guthrie, against W. S. Spencer, treasurer of the city of Guthrie. From a judgment for relator, respondent brings error. Reversed.

Bayard T. Hainer, for plaintiff in error. John F. Stone and Herod, Widner & Overstreet, for defendant in error.

TARSNEY, J. This is a proceeding in mandamus, on the relation of W. H. Gray, receiver of the National Bank of Guthrie, to require the respondent, W. S. Spencer, treasurer of the city of Guthrie, to pay over to said receiver certain moreys, the proceeds of taxes levied by said city of Guthrie for the payment of certain warrants issued by said city in settlement of certain liabilities of the provisional governments of Guthrie, East Guthrie, Capitol Hill, and the consolidated school districts composed of Guthrie, East Guthrie, West Guthrie, and Capitol Hill. The conditions relating to the issue of said warrants, and to the levy and collection of said taxes, are the same as those considered in the case of Martin v. Territory (decided by this court at this term) 48 Pac. 106. The facts being substantially the same in each case, and the questions of law arising upon the records in both cases being identical, the conclusion of the court in that case must govern as to this. The judgment of the court below in this cause is reversed, and the case remanded to, the court below, with instructions to proceed in accordance with the views expressed in the opinion in the other case.

(5 Okl. 260)

FITZGERALD v. KEITH. (Supreme Court of Oklahoma. Feb. 12, 1897.) ACTION OF INTERIOR DEPARTMENT-REVIEW.

The courts of this territory are not authorized to review the action of the interior department in its disposition of the public domain until after title to the lands has passed from the government.

(Syllabus by the Court.)

Appeal from district court, Canadian county; before Justice John H. Burford.

Action by Charles Keith, guardian of Mary B. Poisel and others, heirs of Mrs. Poisel, otherwise known as "Snake Woman," against Thomas Fitzgerald. Judgment for plaintiff, and defendant appeals. Affirmed.

Amos Green & Son, for appellant. Charles Keith, in pro. per.

DALE, C. J. This case was instituted in. the district court of Canadian county, by Charles Keith, as guardian of Anna, Mary, and Joseph Poisel, on the 5th day of April, 1894,

for the purpose of obtaining possession, by injunctional proceedings, of the N. E. 1 of section 17, township 12 N., range 6 W., land situated in Canadian county. The petition alleges in substance that one Mrs. Poisel, otherwise known as "Snake Woman," instituted in the Kingfisher land office a contest proceeding against the homestead entry of Thomas Fitzgerald for the land above described; that such contest was instituted on the 10th day of July, 1889, against the entry of Fitzgerald, filed on the 30th day of April, of said year. As ground of contest, it was alleged that Mrs. Poisel had been residing upon the tract of land for 12 years prior to the time she initiated her contest proceedings; that she had improved the land, and was residing upon and occupying the same when the territory was opened to settlement, on April 22, 1889. At the same time she instituted her contest against Fitzgerald, she also filed her application to enter the tract as a homestead, under the act of congress of July 4, 1884 (23 Stat. 96). A hearing was duly had, and she was successful before the local land office, the commissioner of the general land office, and the secretary of the interior; and the entry of Fitzgerald was canceled, and a right of entry awarded to the heirs of Mrs. Poisel, Mrs. Poisel, subsequent to the date of the institution of the contest proceedings, and prior to the final decision of the secretary of the interior, having departed this life. The petition further alleged that the heirs of said Mrs. Poisel were substituted as plaintiffs in the contest proceedings; that Charles Keith (plaintiff below) was duly appointed guardian of said minor heirs, and the entry made in the land office by him for the benefit of such heirs; that, since the cancellation of Fitzgerald's entry, he had refused to vacate the land, and, by force and violence, was holding possession thereof, and these proceedings were had for the purpose of compelling him to yield control and surrender possession of the tract of land in dispute. defense, Fitzgerald filed an answer in the court below, alleging, in substance, that the plaintiff Mrs. Poisel was not qualified to enter the land, as she was an Indian woman, and was in the territory of Oklahoma contrary to the act of congress approved March 2, 1889, opening these lands for settlement, and the president's proclamation issued thereunder, and further alleged that the land department had misapplied the law in the cancellation of his entry, and in permitting the heirs of Mrs. Poisel to make entry through their guardian of the land in dispute. The answer further alleged that the defendant below was claiming, under the occupying claimant's act, the right to have the value of his improvements ascertained, and to pay for the same before he should be dispossessed; and, further, that there is an adequate remedy at law afforded to the plaintiff for relief, and that the court below had no jurisdiction over the subject-matter, because the title to the land has not yet passed from the government.

As a

In Woodruff v. Wallace, 3 Okl. 355, 41 Pac. 357, we have fully considered all of the questions raised in this case except that one which pertains to the right of Mrs. Poisel to take the land under the homestead act of July 4, 1884. Upon the question so raised, decided adversely to appellant, Fitzgerald, we will make no further comment, but will only consider the other question, as to what effect this court will give to the decisions of the land department. It is well settled by the decisions of the supreme court of the United States and the federal cases that where, as in this case, the secretary of the interior is, under the law, charged with the disposition of public lands, until such lands have passed from the government, and have become the subject of private ownership, the court has no right or authority whatever to disturb the determination or decision reached by the interior department. In the case of Gaines v. Thompson, 7 Wall. 347, the plaintiff attempted to enjoin the secretary of the interior and the commissioner of the general land office from canceling an entry upon a tract of land. The court held in that case that the act of the officers in canceling the entry was one calling for the exercise of judgment and discretion, and could not be controlled by the courts; that the act of the secretary of the interior in canceling the entry of Gaines was one which called for the performance of the ordinary duties of the executive department; and, therefore, that the court had no right to interfere in the exercise of his judgment and discretion; and in the opinion Mr. Justice Miller, in speaking of the power conferred upon the secretary of the interior in the administration of the laws relating to public lands, said: "Certain powers and duties are confided to those officers, and to them alone; and however the courts may, in ascertaining the rights of the parties in suits properly before them, pass upon the legality of their acts, after the matter has once passed beyond their control, there exists no power in the court, by any of its processes, to act upon the officer so as to interfere with the exercise of that judgment while the matter is properly before him for action. The reason for this is that the law reposes this discretion in him for that occasion, and not in the courts." The same doctrine was afterwards announced in Litchfield v. Register and Receiver, 9 Wall. 575, and the same rule was announced in Secretary v. McGarrahan, 9 Wall. 298, and Marqueze v. Frisbie, 101 U. S. 475. It may, we think, be stated that no decision can be found wherein the courts have in any manner attempted to control the secretary of the interior or commissioner of the general land office, or any of the subordinate officers of the land department, in the disposition of the publie domain; the courts uniformly holding that, until the title to the land has passed from the government, the courts will not exercise any jurisdiction over such lands. After the title has passed from the government, then the courts may and do take jurisdiction for the

purpose of determining whether or not the executive officers who are by law intrusted with the duty of the proper disposition of the public domain have misapplied the law in making such disposition; but, until title has so passed from the government, the courts uniformly refuse to act. In this case Fitzgerald's right to have the question as to whether or not the law has been misapplied in this case determined by the court cannot obtain until after the land department, created by law for the purpose of disposing of these lands, has finally acted; and when such time shall have arrived, and patent has issued from the government, the courts will then investigate for the purpose of determining whether or not the law in the disposition of such lands has been by the executive officers of the government misapplied. The court below properly held in this case that the action of the register and receiver, the commissioner of the general land office, and the secretary of the interior was not reviewable, and that the only power which the court had was to give effect to their decisions. The judgment of the lower court is affirmed. The other justices concurring.

(5 Okl. 310)

TERRITORY ex rel. BRAY, County Superintendent, v. STUBBLEFIELD. (Supreme Court of Oklahoma. Feb. 12, 1897.) SUPERINTENDENT OF PUBLIC INSTRUCTION-QUALIFICATIONS-CERTIFICATE.

1. Under section 5 of the organic act of this territory, the legislature has the power and authority to prescribe the qualifications for holding office.

2. The proviso found in section 9, art. 1, c. 73, St., relating to schools, is general in its application, and applies alike to those elected as well as appointed to the office of county superintendent of public instruction.

3. Where the evidence clearly shows that a person is not the holder of a first-grade certificate by reason of not possessing the qualifications required under the law as shown by a public examination, to entitle a person to hold such certificate, such person, although possessing a certificate which purports upon its face to show that he is qualified to hold a first-grade certificate, will not be placed in possession of the office of county superintendent of public instruction if the examination papers as returned by such person when examined for the certificate clearly show him not entitled to receive a first-grade certificate.

(Syllabus by the Court.)

Mandamus by the territory, on the relation of B. F. Bray, county superintendent of public instruction of Lincoln county, against Olive Stubblefield, for the possession of an office. Judgment for respondent.

L. E. Payne, for relator. Asp, Shartel & Cottingham, for respondent.

DALE, C. J. January 8, 1897. the relator, B. F. Bray, filed his petition in mandamus before the chief justice of this court for the purpose of obtaining possession of the books, public moneys, records, accounts, papers, and

documents of the office of county superintendent of public instruction of Lincoln county. In his petition he alleged that on the 3d day of November, 1836, he was a candidate for the office of county superintendent of public instruction for Lincoln county, and at said election received the largest number of votes cast for any candidate for said office, and was duly elected to said office for the term of two years commencing on the first Monday of January, 1897; that on the 6th day of November, 1896, the county clerk and the commissioners of Lincoln county canvassed the returns of the election for the office for which he was a candidate, and, after determining that he had received the highest number of votes cast at the election had on November 3, 1896, made out and delivered to him a certificate of his election to the office; that on the 4th day of January, 1897, he duly qualified as county superintendent of public instruction, took the oath of office, entered into a bond with approved security, and entered upon the discharge of the duties of his office; that Olive Stubblefield, the former county superintendent of public instruction for said county, refused his written demand for possession of the public moneys, books, records, accounts, papers, and documents in her possession, belonging to the office of county superintendent of public instruction for said Lincoln county, and refused to surrender and vacate possession of the office and moneys, books, records, accounts, and documents pertaining thereto; and the petitioner prayed that an alternative writ of mandamus issue to the said Olive Stubblefield to show cause, if any, why a peremptory writ should not issue to divest her of possession of the office, and whatever might appertain thereto. The alternative writ was issued as prayed, and return was made by the respondent, alleging, in substance, that she was the duly elected and qualified county superintendent of public instruction for Lincoln county; that she received the highest number of votes cast for any candidate for said office; denied that the county clerk and board of county commissioners of Lincoln county made and issued to the relator a certificate of election; denied that the relator ever qualified as county superintendent of public instruction for said county; admitted that she was the former county superintendent of public instruction for said county, and that she was duly elected in the year 1894 for said office; and further alleged that on the 3d day of November, 1896, no person was chosen or elected to succeed her to the office; and also that the relator, B. F. Bray, was not qualified as required by law to take and hold the office; that he was never at any time a graduate of any institution of learning, and that he did not now hold, nor did he so hold at the date of the election, any first-grade certificate of any kind or character authorizing him to teach in the public schools of the territory; that the only pretense of a certificate that was held by the relator was a spurious, fals.