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out regard to the sequence of the breaking. testify. After the goods were stolen, search It is only necessary that the house be warrant was procured, and under it offibroken.

cers proceeded to search the home of Crit 2 Bishop's New Criminal Law, 8th ed. and Greene Lawson. Two witnesses who § 100, subsec. 2, in speaking of this Eng- accompanied the officers did not go to the lish statute, uses this language: “The date house, but waited a distance of 200 yards of this statute of 12 Anne is 1713, too re- until the search was completed. They cent to be absolute common law in all our swear that, as soon as the officers entered states. Yet everywhere it must have weight the house, they saw a woman leave it from as declaratory of the opinion of the wnglish rear, and carry something to a place near parliament upon the earlier common law. the pigpen. The officers say they did not As to which common law, no distinct rea- know a woman left the house, but they son appears for holding it to be burglary went to the pigpen and found the lard. to break into a dwelling house to commit The wife of Crit Lawson was offered as a a felony, and not burglary to get in by witness, and, when her testimony was restealth and break out to escape; in other fused, an avowal was made that she would words, for invariably requiring the break- swear she did not leave or carry anything ing to precede the entry, and never permit out of the house. She was not a competent ting it to follow. Probably in most of our witness in behalf of her husband, Crit Lawstates the question is settled by the ex- son, but his codefendant, Greene Lawson, press or implied terms of the statutes; as was entitled to the benefit of her evidence, in Georgia, where the words are breaking and the court should have permitted her and entering into,' the consequence where to testify with a caution to consider it of is that a breaking out is not adequate only as it might affect the case of Greene in this state.”

Lawson. Thompson v. Com. 1 Met. (Ky.) The wording of our statutes does not re- 13; Dovey v. Lam, 117 Ky. 19, 77 S. W. quire the entry to be by breaking; hence 383, 4 Ann. Cas. 16. we conclude the lower court rightly refused For this reason the case must be reversed to give defendants a peremptory instruction. as to the appellant Greene Lawson, but,

The next error complained of is that the as to Crit Lawson, the judgment is afwife of Crit Lawson was not permitted to 'firmed. closing the door was an illegal act, and having entered any of the premises mendoes not enable them to violate the clear tioned in the 1st section, of this article letter and spirit of the burglary statute. with intent to commit a felony, break such When the heifer was killed, they found premises, he shall be punished in the same themselves confined to the barn unable to way as if he had broken into the premises take away the stolen property or to gain in the first instance.” The court stated their own liberty without breaking the that this is nothing more than the princibuilding. If they had opened another door ple of the common law that breaking in and escaped by it, their liability would not furtherance of the design, that is, feloniseriously be questioned. It is immaterial ous purpose after entry, makes out the ofby what door they escaped, so long as they | fense; that it cannot mean that breaking and the stolen property were imprisoned in after abandonment of the purpose, and for the barn and it was necessary for them to a different purpose than the commission of remain in or break out. The same result a felony, shall be referred arbitrarily to the would follow if the door had remained open felonious design; otherwise, a party who, while they were killing the heifer and the by trespass, enters a house with design to wind bad caused it to close. They could not | steal, who changes his mind and abandons get out without breaking the building. that purpose, but in going out of the house The owner of a house purposely leaves the unlocks à door for egress, would be guilty front door open; a sneak thief enters it, of burglary, to which view the court said closes the door so as to avoid detection from it could not give its assent. The court the outside, steals an overcoat, raises a back added that the door in this case was unwindow and jumps out. He is clearly with locked for escape from the house, not for in the intent and spirit of the burglary entrance or in forwarding a felonious destatute. It is immaterial whether he sign, and that there was no felonious breakjumps out of the back window, or returnsing in this view, and distinguished cases and opens the door which he had closed to which held that breaking out was burglary hide his acts."

as being cases where the indictment had a And in Atkinson v. State, 5 Baxt. 569, 30 count for breaking out of a house, which Am. Rep. 69, one who, for the purpose of was expressly made burglary by statute. committing a felony, entered a house with- As to breaking as affected by defendant's out breaking, but who in making his escape authority to enter the building, see note to broke out, was held not to be guilty of State v. Corcoran, post, 1015. burglary under a provision of the Code

J. H. B. which provided that “any person who, after

OKLAHOMA SUPREME COURT.

vote of three fifths of the legal voters before or at the time of creating same, and comes within the limitations therein ex. pressed,

RE TOWN OF AFTON.

(43 Okla. 720, 144 Pac. 184.)

(November 10, 1914.)

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RROR to the District Court for Ottawa funding warrants.

County to review a judgment refusing 1. Section 1, chap. 117, Sess. Laws 1910, is in conflict with $ 26, art. 10, of the Con

approve certain alleged indebtedness stitution, and is void.

and warrants issued as evidence thereof, Municipal corporations indebtedness

created by petitioner, and to validate said validity.

warrants. Affirmed. 2. The officials of the town of Afton is.

The facts are stated in the opinion. sued warrants to take up an indebtedness Mr. Charles A. Loomis for plaintiff in in an amount approximating $8,000, created error. in excess of the revenue and income provided for the payment of current expenses Riddle, J., delivered the opinion of the of said town for the years in which said court: warrants were issued. Held, that said in

This proceeding in error is prosecuted debtedness

created in violation of $ 26, art. 10, of the Constitution, and the from a judgment of the district court of same is a nullity, and constitutes no lia- Ottawa county refusing to approve certain bility against such municipality.

alleged indebtedness and warrants issued Same warrants · validity,

as evidence thereof, created by the town of 3. Said warrants, having been issued in Afton, and in refusing to validate said violation of $ 26, art. 1o, Const., are a outstanding warrants by decree of said nullity, and the court is powerless to vali. court. On the 19th day of January, 1914, date same.

the town of Afton, through its officers, filed Same ratification.

its amended petition in the district court, 4. The warrants issued as evidence of wherein it is alleged in substance that on said indebtedness, being utterly void for said date said town had an outstanding inwant of power to create said indebtedness; debtedness aggregating $7,950.60, evidenced were not subject to ratification, and could not be made valid by a vote of three fifths by certain warrants issued in excess of the of the legal voters of said municipality, nor annual revenue and income of said town in by a decree of the court, since the power payment of services and material furnished to authorize originally is a condition prece- said town; that said town received the dent to the power to ratify subsequently. benefit of same; that the amount paid for Same notice of powers.

such services and material was fair and 5. One who deals with a municipality reasonable; that said indebtedness does so with notice of the limitations on ratified and approved by said town at an its or its agents' powers. All are presumed election held for that purpose on the 15th to know the law, and those who contract day of April, 1913, under and by virtue with a municipality or furnish it supplies of $ 26, art. 10, of the Constitution, and do so with such knowledge; and if they go beyond the limitations imposed, they do an act of the legislature, approved March so at their peril.

28, 1910, entitled “An Act Providing for

the Validation of Certain Outstanding Same limitation of indebtedness.

Warrants in 6. It is plain that the intention of $ 26,

Incorporated Towns and art. 10, of the Constitution, is to require Cities, etc.;" that said town has no funds municipalities to carry on their corporate with which to pay said outstanding waroperations upon a cash basis. The revenues rants; that by an ordinance passed by the and income provided for each year must pay president and board of trustees of said the expenditures of such year; and any town on the 21st day of April, 1913, the

i debt or contract sought to be created in negotiable coupons of said town, in an excess of such revenues and income pro amount aggregating $8,000, were authorvided creates no liability against such municipality, unless it be authorized by a

ized and directed to be issued upon the ap

proval by the court and a judgment validatHeadnotes by RIDDLE, J.

ing said indebtedness. Ordinance No. 19, Note. - As to ratification by public cor., 1915A, 904, and other notes there referred poration of invalid contract, see note to to on specific phases of the subject. Weil, R. & Co. v. Newbern, L.R.A.1915A, Notes on various questions relating to 1023.

limitation of municipal indebtedness may Generally, as to rights and remedies be found by consulting the Index to L.R.A. where contracts, bonds, or other instru. Notes, under the title, “Municipal Corporaments of a public corporation are invalid, tions," SS 65-67. see note to Hagerman v. Hagerman, L.R.A. |

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referred to in said petition, authorized the county, city, town, township, school discalling of a special election, and states that trict, or other political corporation, or the purpose of same is to issue bonds in subdivision of the state, shall be allowed the sum of $8,000, to pay the indebtedness to become indebted, in any manner, or for of said town, which was evidenced by war- any purpose, to an amount exceeding, in rants issued in excess of the annual revenue any year, the income and revenue provided and inccme provided. An itemized state for such year, without the assent of three ment of said warrants appears in the rec. fifths of the voters thereof, yoting at an ord, running from March, 1910, which election, to be held for that purpose, nor in shows that they were issued to pay the cases requiring such assent, shall any incurrent expenses of said town for the years debtedness be allowed to be incurred to 1910 and 1911. A copy of the oflicial an amount including existing indebtedness, ballot, as disclosed by the record, shows in the aggregate exceeding 5 per centum that the purpose of said bond issue was to of the valuation of the taxable property pay an indebtedness evidenced by warrants therein to be ascertained from the last asissued in excess of the annual revenue and sessment for state and county purposes preincome provided by the proper authorities vious to the incurring of such indebtedfor paying the running expenses of said Provided, that any county, city, town. Ordinance No. 120 of said town, pro- town, township, school district, or other viding for the issuance of said negotiable political corporation, or subdivision of the coupon bonds, also shows that the purpose state, incurring any indebtedness, requiris to pay an indebtedne i of said town, evi- ing the assent of the voters as aforesaid, denced by said warrants issued in excess shall, before or at the time of doing so, proof the income and revenues provided. vide for the collection of an annual tax

Upon a hearing of said matter by the suflicient to pay the interest on such incourt, the relief prayed was denied, upon debtedness as it falls due, and also to conthe ground and for the reason that said stitute a sinking fund for the payment of indebtedness was created in excess of the the principal thereof within twenty-five revenue and income of said town, and the years from the time of contracting the warrants issued as evidence thereof were same." issued in payment of services and material It cannot be questioned that the alleged furnislied said town for the fiscal year in indebtedness evidenced by the warrants which said material and services were so sought to be refunded by this proceeding furnished; that said indebtedness was in- was in excess of the income and revenue curred without the assent of three fifths of provided for such town for the year in the voters of said town first having been which said indebtedness was attempted to obtained; that said indebtedness was there be created, and that no election was held fore void and of no force and effect, as the before or at the time of the incurring of debt was created in violation of SS 26 and same for the purpose of securing the as27 of article 10 of the Constitution, and sent of three fifths of the voters of such the court had no jurisdiction to grant the town to the creation of said indebtedness relief sought. The court further held that Section 1, chap. 117, p. 244, Sess. Laws chapter 117, Sess. Laws 1910, was in con. 1910, provides: "If any incorporated town flict with § 26, art. 10, of the Constitution, or cities shall now or may hereafter have and was void.

outstanding warrants issued in payment of The petitioner has filed its petition in current expenses for any year, and shall deerror in this court, with original case sire to refund such indebtedness in the made attached. The only errors assigned manner now provided by law, and it shall which need to be considered are: (1) That appear that any such warrants were issued the decision of the court is contrary to in excess of the annual revenues and inlaw; (2) That the decision of the court come of such city or incorporated town, is contrary to the law and the evidence. then the court which shall be petitioned This record presents two propositions for | for authority to refund such indebtedness our consideration: (1) Is the act of the shall inquire whether or not such city or legislature contained in chapter 117, Sess. incorporated town received actual benefit Laws 1910, in conflict with $ 26, art. 10, by way of services or material furnished of the Constitution ? (2) Is the indebtedness said city or incorporated town in payment and the warrants issued as evidence there of which said warrant was issued, and that of sought to be refunded by this proceed the amount so paid was the fair and reaing, void, for the reason that the same was sonable value for such services or matean attempt to create a debt contrary to s rial, and if it shall be so determined by 26, art. 10, Const., and contrary to § 9, said court, then the court shall so stata chap. 80, Sess. Laws 1910-11?

in its decree, and said decree shall validate Section 26, art. 10, Const., provides : “No said warrants and permit such city or in

no

corporated town to refund the indebted-, warrants. It is argued, however, that this ness represented by said warrants, provided is a debt of honor; that it is conceded that that such warrants shall be re- the town and its citizens received the bene. funded until the close of the fiscal year fit of and full value for this indebtedness; during which they were issued.”

and, inasmuch as the people have ratified If it was the purpose of this act to au- the same, that the court should refuse to thorize the court to give its approval to hold that it is void as being in conflict any municipal corporation to issue bonds with the Constitution. in payment of an indebtedness which did

If we

were authorized to inaugurate not exceed the revenue and income which policies and to amend the organic law to had been provided by the proper officials meet such contingencies, this argument for such year, although such indebtedness might appeal to us with some force. The may have exceeded the actual revenue and framers of the Constitution, and the people income collected by said municipality, then in approving same, hiave deemed it wise to it would doubtless be valid. On the other place a limitation upon all the people and hand, if, construing the act as a whole, it upon every political subdivision of the is made clear that it was the intent of state; and if the legislature, or any politthe legislature to authorize the court to ical subdivision of the state, may, by its make valid a pretended obligation of the acts, exceed the limitations placed upon it municipality, which was attempted to be by the Constitution, create a debt in concreated in violation of § 26, art. 10, of the fict therewith, and thereafter ratify such Constitution, and which was, as a matter debt and thereby make it valid, it would of law, invalid, then such act is in conflict simply mean the destruction of this prowith both the letter and spirit of said provision of the Constitution. If the town vision of the Constitution, supra, and must of Afton can contract a debt and bind its fall. Considering every part of said sec- people to the amount of $8,000 in excess tion, it is apparent that the purpose in of the limitations imposed by the Constitupassing the same was an attempt on the tion, then it necessarily follows it may part of the legislature to authorize the create a debt of $80,000 or $800,000. If court to validate indebtedness attempted to one town may, in violation of the Constibe created, which is invalid under the Con- tution, contract an obligation for which stitution. This the legislature has no the people may be held liable, then every power to do.

It could not authorize the other town in the state may do likewise. court to give life and validity to some- If this court authorizes or permits this thing which never bad any legal existence. provision of the Constitution to be nullified If the debt was not created in violation of in this manner, as a logical sequence, every the provision of the Constitution, quoted other provision of the Constitution may supra, then this act of the legislature is likewise be disregarded and violated. superfluous, in that said debt or contract 28 Cyc. p. 1540, states the rule as folwould need no decree of the court to vali- | lows: date it. It would be valid, if created in “ 'Pay as you go' expresses a municipal compliance with the Constitution and law, rule prevailing in some states that annual without a decree of the court to validate expenditures must be restricted to annual same, and would only require the approval revenue, of which every person contracting of the court to the issuance of refunding with a municipal corporation must take bonds in the manner provided for by law. notice at his peril.” It cannot be said that this act is neces- Again, on page 1560, id: “A contract sary in order to authorize the funding of made by a municipality in excess of its said indebtedness or outstanding warrants, debt limit as fixed by the Constitution or if it was in fact a valid indebtedness, for by statute is void, at least as to the exthe reason that g 362, Rev. Laws 1910 (s cess; and everyone dealing with a munici372, Comp. Laws 1909) contains complete pality is charged with notice of a limitaprovisions for refunding outstanding war. tion upon the amount of its indebtedness. rants and indebtedness, if the same are a Municipal indebtc Iness in excess of a conlegal obligation, and full power is given stitutional limitation cannot be made good to the court to determine such issues; and by ratification, since power to authorize it must be conceded that, if the indebted- originally is a condition precedent to the ness is illegal and void by reason of having power to ratify subsequently.

А been contracted in violation of the plain municipal contract, expenditure, or approprovision of the Constitution, the court priation, invalid when made, may be cured would be unauthorized to sanction the bond by subsequent legislation, unless the inissue. The legality of the indebtedness is validity result from a violation of a conone of the issues the court must determine stitutional inhibition.” in a proceeding to refund outstanding It will be seen from this that a debt attempted to be created in excess of a thorizing or attesting such indebtedness, or limitation in the Constitution cannot be / from his bondsmen." ratified by a vote of the people. O'Neil Section 10 of said act provides that any Engineering Co. v. Ryan, 32 Okla. 738, 124 such officer violating $ 9 shall be guilty of Pec. 19. We therefore hold that chapter a misdemeanor and fined no less than $100 1i7, Sess. Laws 1910, is in conflict with nor more than $1,000, and shall forfeit and $ 26, art. 10, of the Constitution, hence be removed from his office. is unconstitutional and void.

It is suggested that to hold this debt to The record shows affirmatively that the be void will impair the credit of the state warrants sought to be refunded by this and cause a great hardship to fall upon proceeding were issued in excess of the the parties who are holding these warrants income and revenue provided for the town for value, and who relied upon the inof Afton for the year in which said debt tegrity of the people to pay this debt of was attempted to be created, and are clear- honor; and inasmuch as the legal voters ly void, under the provision of the Consti- of said town have shown, by their vote, tution, quoted supra, and did not create a that they recognize a moral, as well as a liability against the town. If the statute, legal, obligation to pay said debt, the court which we hold to be in confiict with the I should not require them to repudiate same. Constitution and void, had been held to be To this suggestion we reply that when valid, yet the court could not have validated the question of enforcing a plain prothe indebtedness or the warrants issued in vision of the organic law is presented on payment of same, for the reason the same one side, and policies and hardships on the is clearly in violation of 26, art. 10, Const., other, our duty is clear, and we have no supra. It is clear that it is the policy of choice. The plain provision of the Constiour government and the spirit of the Con- tution must be obeyed and followed, not stitution that debts shall not be contracted only by the courts, but by everyone; and or in any way recognized as legal, when it is the solemn duty of this court, when created in excess of the limitations of the its jurisdiction is properly invoked, to Constitution. The legislature, in enacting maintain, and not destro; or impair, the chapter 80, Sess. Laws 1910–1i, clearly wise provisions of this sacred document. It recognizes this spirit; and certainly, in the is better that the courts preserve the orface of § 9 of said statute, the court could ganic law and protect the rights of all the not validate or authorize the issuance of people at the expense and hardship of a bonds in payment of the warrants in ques- few rather than to relieve the few of this tion. Said section provides: “It shall be expense and hardship, and in so doing deunlawful for the board of county commis- stroy the Constitution and jeopardize the sioners, the city council, or the commission rights of all the people. No one could have ers of any city, the trustees of any town, been misled in connection with this transboard of education, township board, school action, for, as we have seen, this debt was district board, or any member or members created and the warrants issued in open of the aforesaid commissioners, or of any violation of the Constitution, and all must of the above named boards, to make any be presumed to have known the law. contract for, incur, acknowledge, approve, It follows that the judgment of the trial allow, authorize

any indebtedness court must be affirmed, and it is ordered. against their respective municipality, or authorize it to be done by others, in excess All the Justices concur. of the estimate made and approved by the excise board for such purpose for such current fiscal year, or in excess of the specific amount authorized for such purpose by a

OKLAHOMA SUPREME COURT.

(Division No. 2.) bond issue. Any such indebtedness, contracts incurred, acknowledged, approved,

MAX ROBINOVITZ, Piff, in Err., allowed, or authorized in excess of the estimate made and approved for such purpose

J. G. HAMILL. for such current fiscal year, or in excess of the specific amount authorized for such

(- Okla.

144 Pac. 1024.) purpose by a bond issue, shall not be a charge against the municipality whose offi- Partnership statutes fictitious

officers contracted, incurred, acknowledged, approved, allowed or author- 1. Sections 5023 and 5025, Comp. Laws ized or attested the evidence of said in. / 1909, and $ 2444, Id., relate to partnerships debtedness, but may be collected by civil composed of two or more persons, and are

not intended to apply to one person who, action from any official contracting, ineurring, acknowledging, approving or au- Headnotes by HARRISON, C.

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