that said lands are restricted Indian lands under | attempt on the part of the state to tax an the laws of the United States of America, and agency of the United States government, or that the said plaintiffs are now, and have been the means and instrumentality by which said since February 14, 1916, producing oil and gas therefrom. That said Ben F. Whitehill, John government was performing its duty, right, F. Hayden, Hugh Donovan, Jr., and Joseph W. and obligation to its Indian wards, relative Whitehill are operating each of said tracts of to the development and operation of their land for oil and gas under the said oil and gas restricted lands for oil and gas. The quesmining leases made by the Indian citizens, the owners thereof, in accordance with the rules tion is the same as that involved and recentand regulations of the Secretary of the Interior, ly decided in case Large Oil Co. v. E. B. and the provisions of the various Indian treaties Howard, Auditor, 163 Pac. 537, in which, aftand acts of Congress, and which said leases have been duly and regularly approved by the Secre- er full consideration, it was held that the tary of the Interior, under his direction, and up- act of the Legislature of May 4, 1916 (Sess. on forms prescribed by him, and that the devel- Laws 1916, pp. 102-110), was not an attempt opment and operation of said lands for oil and gas under said leases has been, since February on the part of the state to tax an agency of 14, 1916, and prior thereto, and is now, under the federal government, or the means and inthe acts of Congress, subject to the control and strumentality by which said government was supervision of the Secretary of the Interior. performing its duty to the Osage Indians, That said Ben F. Whitehill, John F. Hayden, in respect to the development and operation Hugh Donovan, Jr., and Joseph Whitehill are operating each of said tracts of land and pro- of their lands for oil and gas, but that, on ducing oil and gas therefrom under and in ac- the other hand, the tax was imposed upon the cordance with the terms and provisions of their production of oil and gas as property, and said leases, and of the rules and regulations of the Secretary of the Interior and the various was therefore valid without regard to the acts of Congress relating thereto, and pay a agency employed in its production. There royalty provided for in each of said leases to the would seem to be no difference in this reUnited States Indian superintendent in charge of said tribes or nations of Indians, and such spect between a departmental Osage lease royalty when so paid is held by said superintend- and a departmental lease of restricted lands ent under and in accordance with the rules and in either the Creek or Cherokee Nations. regulations prescribed by the Secretary of the The rules and regulations governing the leasInterior and the various acts of Congress in relation thereto, and paid out to such Indians in ing of the lands of the different Indian tribes, such sums and by such methods as the Secretary or of the members thereof, may differ, it is of the Interior may order and direct, and in ac- true, and in the Osage Nation the royalties cordance with the rules and regulations of the are paid for the benefit of the Osage Indians Secretary of the Interior governing and controlling the same." collectively (Leahy v. Indian Territory Illuminating Oil Co., 39 Okl. 312, 135 Pac. 416),

The purpose of the action and the submission in the form of an agreed case is thus stated by the parties:

"This cause is submitted to the court upon the facts above set forth, and it is agreed that if upon such facts the court shall decide that the production of oil and gas from said restricted Indian lands in possession of, and being developed and operated for, oil and gas, by the plaintiff's, Ben F. Whitehill, John F. Hayden, Hugh Donovan, Jr., and Joseph W. Whitehill, under said leases so made under the direction and with the approval of the Secretary of the Interior, is not lawfully subject to said gross production tax, as an attempt of the state of Oklahoma to tax an agency of the United States government, or the means and instrumentality by which said United States government is performing its duty, right, and obligation to its Indian wards, relative to the development and operation of their restricted lands for oil and gas, then in such case, judgment shall be rendered against the defendant, E. B. Howard, as auditor of the state of Oklahoma, and in favor of said Ben F. Whitehill, John F. Hayden, Hugh Donovan, Jr., and Joseph W. Whitehill, for the return to, and recovery by, them, of $59.51, being the sum so paid and retained by said E. B. Howard, as aforesaid; otherwise judgment shall be rendered in favor of the said E. B. Howard, as auditor of the state of Oklahoma, and against the said plaintiffs, Ben F. Whitehill, John F. Hayden, Hugh Donovan, Jr., and Joseph W. Whitehill, subject to the rights of exception and appeal by either party as in civil causes pending in said court.”

while the royalties in a Creek or Cherokee departmental lease, such as those under which the plaintiffs are operating, are paid to the individual Indian allottee, through the instrumentality of the Interior Department. These differences are unimportant, and in no wise affect the question of the power of the state constitutionally to tax the property of a federal agency. As the act of the Legislature does not impose a tax upon the agency, or the means and instrumentality through which the federal government acts in its dealings with the lands of restricted Indians, it is not on that account unlawful.

Upon the authority of the opinion in Large Oil Co. v. E. B. Howard, Auditor of the State of Oklahoma, both as to the power of the state to impose the particular tax and its constitutionality, the judgment of the trial court is affirmed. All the Justices concur.

(62 Okl. 130)

CHILDERS v. CHILDERS. (No. 7387.) (Supreme Court of Oklahoma. May 9, 1916. Rehearing Denied June 6, 1916. Second Petition for Rehearing Denied April 10, 1917.) (Syllabus by the Court.)

1. INDIANS 20-LANDS-RESTRICTIONS ON ALIENATION.

It will be seen from the foregoing that the Because of the provisions of section 4 of question involved is whether the act impos- the act of Congress approved May 27, 1908 ing the tax, paid under protest, was an (35 Stat. 313, c. 199), a judgment for alimony 1

that, inasmuch as the allottee was authoriz[2] It is earnestly contended by plaintiff ed to rent the allotment for a period not exceeding five years, the court ought to have declared plaintiff to be entitled to a lien upAffirmed. on the rents and profits of such surplus alF. B. Beall and William Neff, both of Mus- lotment so long as she might live or until the kogee, for plaintiff in error.

(Syllabus by the Court.) 1. SCHOOLS AND SCHOOL DISTRICTS_110ADDITIONAL FUND POWER OF EXCISE Board. When the board of education of an independent school district, consisting of a city of the first class and added outlying territory, on or before the second Tuesday of May of a given that will be required to be raised by taxation year, prepares a budget of the amount of money for the support and maintenance of the schools

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

the common schools of the counties in which the
oil and gas is produced.

[Ed. Note.-For other cases, see Schools and
School Districts; Cent. Dig. §§ 261-264.
First and Second Series, Common School.]
For other definitions, see Words and Phrases,

Original application for mandamus by the Board of Education of the City of Sapul

against Gus Corey, County Clerk, Stella Bay. less, Superintendent of Public Instruction, Roy T. Wildman, County Attorney, J. E. Bruin, County Treasurer, and J. V. Frazier, County Judge, composing the Excise Board of Creek County, State of Oklahoma, and J. E. Bruin, County Treasurer of said county. Writ granted.

of the district for the ensuing fiscal year, and where it is found by said board that the assessed valuation of said school district for such year is not sufficient by a levy of five mills to create the fund, as determined in the said budget, and the board thereupon determines the amount of the excess levy above five mills that will be required to raise the amount as determined by the assessed valuation for the current fiscal year, and within ten days thereafter said board issues a call for an election for the pur-pa, on the relation of the State of Oklahoma, pose of voting on said excess levy, and at which election a majority of those voting on said levy vote in favor thereof, and where said board of education, in making the estimate sheet required by law, attach thereto a transcript showing the record of the board in calling the election and the returns received therefrom, and an itemized statement showing the financial condition of the district, and where the amount of said estimate is not in excess of the just and reasonable needs of the district, and the proceedings had are regular and are published and certified to the county excise board in the manner and within the time required by law, and where, after said proceedings are had by the board of education, there comes to its hands certain revenues from the state, on account of the gross production tax on oil and gas, and the distribution of which had theretofore been in litigation, and where said board upon being apprised of the final result of said litigation, and the amount due it on account of said tax, by resolution sets aside said funds for the current year for the erection and equipment of a needed high school building in said city, the excise board is without power to annul or vacate the proceedings had by said board of education, and to substitute therefor its own judgment as to how and for what purpose such funds should be used.

[Ed. Note. For other cases, see Schools and School Districts, Cent. Dig. §§ 261-264.]

2. SCHOOLS AND SCHOOL DISTRICTS 110 TAXATION-BUILDING FUND.

The gross production tax on oil and gas, collected and paid to the county treasurer under authority of section 4, subd. "a," art. 2, c. 107, Sess. Laws 1915, which provides that one-half (one per cent.) of the gross production tax collected under the provisions of said act "shall be, by the state treasurer distributed to the county treasurer of the counties from whence the same was collected, in proportion to the school enumeration of such counties, and same shall be distributed in aid of the common schools of such counties upon a per capita basis as are other common school funds," and section 4 of chapter 39, Sess. Laws 1916, which provides that one-sixth (five mills) of the gross production tax levied and collected by said act shall be "for and in aid of the common schools of the county from whence the oil or gas and other mineral was produced," may be used by the board of education of a city of the first class of the county in which the oil or gas is produced, for the purpose of constructing and equipping a needed high school building in said city; and the county excise board is without authority to set aside and annul the action of the board of education in setting aside as a building fund the taxes then on hand or collected during the current year.

[Ed. Note. For other cases, see Schools and School Districts, Cent. Dig. §§ 261-264.]

3. SCHOOLS AND SCHOOL DISTRICTS 110 HIGH SCHOOLS IN CITIES OF FIRST CLASS"COMMON SCHOOLS"-STATUTE.

The free public school system of the state includes high schools in cities of the first class. Such high schools are "common schools" within the meaning of section 4, subd. "a," art. 2. c. 107, Sess. Laws 1915, and section 4, c. 39, Sess. Laws 1916. providing for the distributon of the gross production tax on oil and gas in aid of

W. Morris Harrison, Lucien B. Wright, and Geo. L. Burke, all of Sapulpa, for plaintiff. Roy T. Wildman, Co. Atty., and Leroy J. Burt, Asst. Co. Atty., both of Sapulpa, for defendants.

SHARP, C. J. At a regular meeting of the board of education of the city of Sapulpa, a city of the first class, held on Tuesday, May 9, 1916, said board prepared its estimate of the amount of money that would be required to be raised by taxation for the support and maintenance of the schools of said city and outlying territory (constituting school district No. 33, Creek county) for the ensuing fiscal year. This amount was determined by the board to be $58,000. In order to raise said sum, it was found necessary to levy on the taxable property of said school district, over and above the five-mill limit, an additional tax of 44/10 mills. At said meeting a special election was called for the purpose of voting on the increased levy, and thereafter, on May 24, 1916, said election was held, with the result that a majority of the voters of the district, voting thereat, voted for said in

crease.

Thereafter and during the same month, the result of said election and the proceedings of the board, together with a financial statement of said district, were duly published and certified to and filed with the county clerk, as secretary of the county excise board. It does not appear that any action on the part of the county excise board, on the proceedings furnished and certified to it by the board of education, was taken until in the month of November following. After the election in said school district, and after the transcript of the proceedings had been furnished the county excise board, it was learned by the board of education that, as the result of the decision of this court, on July 11, 1916, in case Board of Commissioners of Creek County et al. v. W. L. Alexander, State Treasurer, 159 Pac. 311, said school district was entitled to receive from the state treasurer, through the county treas urer of Creek county, the sum of $48,000, then on hand, as its portion of the gross

board of education again came on for hearing, and the members present were advised by said county attorney that the previous action of the board in allowing and approving the amended estimate of the board of education, in which the gross production tax was placed to the credit of the high school building fund, was illegal, void, and of no effect. The following proceedings were had at said meeting, according to said answer:

mate, and that the following morning, Gus L. Corey, county clerk, received a telegram from the said defendant, J. E. Bruin, county treas

production tax, and the apportionment of of approving the amended estimate of the which had theretofore been in litigation. Shortly after the decision in said case, and before any action was taken by the excise board upon the proceedings of the board of education, the latter, at a meeting duly called, passed a resolution, which, after reciting the great need of a high school building, and the claim that the school district would, during the current year, receive as its proportion of the gross production tax on oil and gas, paid to the state auditor, about $65,- "That thereafter J. E. Bruin, county treasur000, which, according to said resolution, it er, having to leave the city, made a statement to the excise board that whatever action was was said, "can be utilized in the aid of the taken on the matter would be his act and he public schools in Sapulpa," and which fund would concur in and approve any action whatwould not be required for the running ex-soever taken with reference to said amended estipenses of the public schools of said school district for the current year, and that the funds so received during said year should beurer, in which said telegram said county treasset aside and placed in a fund designated as "high school building fund," to be thereafter used for the construction and equipment of a high school building within the city of Sapulpa. Pursuant to said resolution, an amended financial statement was published, showing that the school district desired to raise the sum of $150,000 for a high school site and building, and it is here contended that said board of education had set apart the gross production tax accruing to it, for the purpose of raising said fund. From the petition and joint auswer of the defendants, other than of the county superintendent, who filed a separate answer, as we understand them, it seems that at the meeting of the county excise board, held on or about the 1st day of November, 1916, all members except the county treasurer being present, the original and amended estimate of the board

urer made the statement to place said gross production tax to the credit of the general fund for school purposes of said plaintiff for the years 1916 and 1917. That on said date of receiving said telegram, defendants Gus L. Corey, county clerk, and Roy T. Wildman, county attorney, decided and did place the said gross production tax then to the credit of plaintiff in the general funds of said plaintiff for the purpose of paying the current expenses of plaintiff for the current years of 1916 and 1917, in addition thereafter made a levy of 2.45 mills under the amended estimate of plaintiff, for the purpose of raising funds for the payment of accrued interest on bonds and the retirement of bonds of plaintiff."

swer,

of the absent officials, after the so-called second meeting, was used, as further appears in the answer, as follows:

"That thereupon the county clerk made out on the original blank, furnished and previously signed by the county superintendent and county judge, an estimate on which the gross production tax was set apart for current expenses for the years 1916 and 1917, and making the levy of 2.45 mills, as heretofore stated."

At the first meeting of said excise board, and at which it allowed and approved the action of the board of education, the county superintendent and county judge then present signed, as appears from defendants' anthe approval in blank and handed the same to the clerk to enable him to carry out the orders of the board in cerof education came on for consideration, and. tifying said statement to the county treasurupon motion duly made by the superintendenter." This blank, containing the signatures of public instruction and seconded by the county clerk, said estimate was allowed and approved, and the county clerk was directed to make a record thereof, and to certify the same as required by law. Some days thereafter, it appears, an attempt was made to rescind the previous action of the excise board. Just what occurred on this occasion is not clear, though from the joint answer of the defendants it seems that, at the original [1, 2] That the funds required for the supmeeting of the excise board, the county at- port and maintenance of the schools for the torney had advised the board against ap- ensuing fiscal year, as certified to the board, proving the action of the board of education were necessary to carry on the schools, is in setting aside the gross production tax as not and was not questioned. That the proa high school building fund, claiming that ceedings of the board were valid in all resaid action of the board of education was spects is not denied, except in respect to the illegal, in that said gross production tax claim that the board of education had no aucould not be used for such purpose. The thority to use the gross production tax for joint answer of said defendants, signed by high school building purposes. The subsethe county attorney, charges that, notwith-quent action of the county clerk and county atstanding the objection urged, the action of torney arose out of the mistaken belief that the board of education was approved by the the board of education had no authority to excise board by a majority vote of its mem- use the gross production tax collected during bers; that, at a subsequent meeting of the the current year for the purposes declared board, the date thereof not being given, and by the resolution. It is unnecessary to dewith but three members present, the matter vote space to a discussion of the regularity

the excise board was unjust or unreasonable, or that the proceedings of said board were invalid, other than as arises out of the action of the board in setting aside the gross

obvious that the attempted action of the excise board at its second meeting, aside from the question of the regularity of said meeting, was invalid.

or the validity of the action of the county that the amount of the estimate certified to clerk and county attorney, had subsequent to the regular meeting of the excise board. From what has been seen, it is sufficient to say that the proceedings were a nullity. The board of education, as we shall pres-production tax for building purposes, it is ently see, had full authority to use the gross production tax accruing to it during the current year, for the construction and equipment of a high school building. When it determined to use such tax for that purpose, the necessity of the levy for the support and maintenance of the schools of the district for the fiscal year, as certified to the board, remained as it was when the question was acted upon and finally determined by the vote of the electors of the district and the action of the board of education. Neither the officers of the excise board, who participated in the second meeting, or the board itself, had authority to vacate and set aside the valid proceedings of the board of education, because of the action of the latter in setting aside the gross production tax for the current year as a high school building

fund.

Under the act of April 2, 1915 (Sess. Laws 1915, pp. 390, 391), boards of education of cities of the, first class are required, on or before the second Tuesday of May of each year, to prepare a budget for the amount of money that will be required to be raised by taxation for the support and maintenance of the schools of the school district controlled by such boards for the ensuing year. When it is determined that the assessed valuation

of such school districts for the current fis

cal year is not sufficient by a levy of five mills to create the fund, as determined in the

For what purpose may the proceeds of the gross production tax be used? The gross revenue act of March 11, 1915 (Sess. Laws 1915, pp. 170-196), at page 184 provides that one-half (one per cent.) of the revenues collected under the provisions of said act shall be by the state treasurer distributed to the county treasurer of the counties from whence the same was collected, in proportion to the school enumeration of such counties, and same shall be distributed in aid of the common schools of such counties upon a per capita basis, as are other common school funds. The gross production act of Febru ary 14, 1916 (Sess. Laws 1916, pp. 102-110) provides that, of the sum levied and collected, five mills shall be in aid of the common schools of the county from whence the oil or gas is produced. In both acts, it will be seen, the tax is to be used in aid of the common schools. It was for this purpose that the board of education set aside the funds apportioned to it by the county treasurer. By statute each city of the first class constitutes an independent school district. The to law are made a body corporate, and as public schools of each city organized pursuant tions for public purposes, and may in its corsuch possess the usual powers of corporabudget, as prepared by virtue of section 1 of contracting or being contracted with, of porate name sue or be sued, and be capable of the act, the board of education shall deter- holding and conveying such personal and real mine the amount of the excess levy above the estate as it may come into possession of, by five mills necessary to raise the amount, as will or otherwise, or as is authorized to be determined by the assessed valuation for the purchased by statute. The board of educacurrent fiscal year. Within ten days after tion of any city of the first class, subject to the amount of such excess levy has been de- the provisions of article 6, c. 219, Sess. Laws termined, the board is required to issue a 1913, has the power to organize and maintain call for and to hold an election in the month a system of graded schools; to establish a of May of the same year for the purpose of high school whenever, in the board's opinion, voting on said excess levy. If a majority of the educational interest of the city demands those voting shall vote in favor thereof, then the same; and to exercise the sole control it is made the duty of said board to attach over the schools and school property of the to the estimate sheet, when making the esti- city. All taxes collected for the benefit of the mate required by law, a transcript showing schools of said city are required to be placed the record of the board of education, in call-in the hands of the treasurer, subject to the ing the election, and the returns received from said board. It is then the duty of the county excise board, if an excess levy be required, according to section 3 of the act, to raise the amount of the estimate as approved by the board of education to make such excess levy in such an amount as will be required to produce the amount of the approved estimate not to exceed, however, the amount of such excess levy as had been voted as provided by sec

order of the board of education. Whenever it becomes necessary for the board of education of any school district, in which is included in whole or in part a city of the first class, to raise sufficient funds for the pur chase of a school site or sites, or to erect or purchase and equip a suitable school building or buildings, or both, such board is authorized to borrow money, for which it is empowered to issue bonds bearing a rate of interest not exceeding 5 per cent. per annum, payable