out regard to the sequence of the breaking. It is only necessary that the house be broken. testify. After the goods were stolen, search warrant was procured, and under it officers 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 English 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.) 13; Dovey v. Lam, 117 Ky. 19, 77 S. W. 383, 4 Ann. Cas. 16. The wording of our statutes does not require the entry to be by breaking; hence we conclude the lower court rightly refused to give defendants a peremptory instruction. The next error complained of is that the wife of Crit Lawson was not permitted to closing the door was an illegal act, and does not enable them to violate the clear letter and spirit of the burglary statute. When the heifer was killed, they found themselves confined to the barn unable to take away the stolen property or to gain their own liberty without breaking the building. If they had opened another door and escaped by it, their liability would not seriously be questioned. It is immaterial by what door they escaped, so long as they and the stolen property were imprisoned in the barn and it was necessary for them to remain in or break out. The same result would follow if the door had remained open while they were killing the heifer and the wind had caused it to close. They could not get out without breaking the building. The owner of a house purposely leaves the front door open; a sneak thief enters it, closes the door so as to avoid detection from the outside, steals an overcoat, raises a back window and jumps out. He is clearly with in the intent and spirit of the burglary statute. It is immaterial whether he jumps out of the back window, or returns and opens the door which he had closed to hide his acts." And in Atkinson v. State, 5 Baxt. 569, 30 Am. Rep. 69, one who, for the purpose of committing a felony, entered a house without breaking, but who in making his escape broke out, was held not to be guilty of burglary under a provision of the Code which provided that "any person who, after For this reason the case must be reversed as to the appellant Greene Lawson, but, as to Crit Lawson, the judgment is af'firmed. having entered any of the premises men- As to breaking as affected by defendant's Note. As to ratification by public cor-, poration of invalid contract, see note to Weil, R. & Co. v. Newbern, L.R.A.1915A, 1023. Generally, as to rights and remedies where contracts, bonds, or other instruments of a public corporation are invalid, see note to Hagerman v. Hagerman, L.R.A. | was This proceeding in error is prosecuted from a judgment of the district court of Ottawa county refusing to approve certain alleged indebtedness and warrants issued as evidence thereof, created by the town of Afton, and in refusing to validate said outstanding warrants by decree of said court. On the 19th day of January, 1914, the town of Afton, through its officers, filed its amended petition in the district court, wherein it is alleged in substance that on said date said town had an outstanding indebtedness aggregating $7,950.60, evidenced by certain warrants issued in excess of the annual revenue and income of said town in payment of services and material furnished said town; that said town received the benefit of same; that the amount paid for such services and material was fair and reasonable; that said indebtedness ratified and approved by said town at an election held for that purpose on the 15th day of April, 1913, under and by virtue of § 26, art. 10, of the Constitution, and an act of the legislature, approved March 28, 1910, entitled "An Act Providing for the Validation of Certain Outstanding Warrants in Towns and Incorporated Towns Cities, etc.;" that said town has no funds with which to pay said outstanding warrants; that by an ordinance passed by the president and board of trustees of said town on the 21st day of April, 1913, the negotiable coupons of said town, in an amount aggregating $8,000, were authorized and directed to be issued upon the approval by the court and a judgment validating said indebtedness. Ordinance No. 19, 1915A, 904, and other notes there referred to on specific phases of the subject. Notes on various questions relating to limitation of municipal indebtedness may be found by consulting the Index to L.R.A. Notes, under the title, "Municipal Corporations," §§ 65-67. 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 income 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, voting 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 official 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 ness: 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 indebtednc; of said town, evi-ing the assent of the voters as aforesaid, denced by said warrants issued in excess of the income and revenues provided. Upon a hearing of said matter by the court, the relief prayed was denied, upon the ground and for the reason that said indebtedness was created in excess of the revenue and income of said town, and the warrants issued as evidence thereof were issued in payment of services and material furnished said town for the fiscal year in which said material and services were so furnished; that said indebtedness was incurred without the assent of three fifths of the voters of said town first having been obtained; that said indebtedness was therefore void and of no force and effect, as the debt was created in violation of §§ 26 and 27 of article 10 of the Constitution, and the court had no jurisdiction to grant the relief sought. The court further held that chapter 117, Sess. Laws 1910, was in conflict with § 26, art. 10, of the Constitution, and was void. shall, before or at the time of doing so, provide for the collection of an annual tax sufficient to pay the interest on such indebtedness as it falls due, and also to constitute a sinking fund for the payment of the principal thereof within twenty-five years from the time of contracting the same." It cannot be questioned that the alleged indebtedness evidenced by the warrants sought to be refunded by this proceeding was in excess of the income and revenue provided for such town for the year in which said indebtedness was attempted to be created, and that no election was held before or at the time of the incurring of same for the purpose of securing the assent of three fifths of the voters of such town to the creation of said indebtedness Section 1, chap. 117, p. 244, Sess. Laws 1910, provides: "If any incorporated town or cities shall now or may hereafter have outstanding warrants issued in payment of current expenses for any year, and shall desire to refund such indebtedness in the manner now provided by law, and it shall appear that any such warrants were issued in excess of the annual revenues and income of such city or incorporated town, then the court which shall be petitioned for authority to refund such indebtedness shall inquire whether or not such city or incorporated town received actual benefit by way of services or material furnished said city or incorporated town in payment of which said warrant was issued, and that the amount so paid was the fair and reasonable value for such services or mate The petitioner has filed its petition in error in this court, with original case made attached. The only errors assigned which need to be considered are: (1) That the decision of the court is contrary to law; (2) That the decision of the court is contrary to the law and the evidence. This record presents two propositions for our consideration: (1) Is the act of the legislature contained in chapter 117, Sess. Laws 1910, in conflict with § 26, art. 10, of the Constitution? (2) Is the indebtedness and the warrants issued as evidence thereof sought to be refunded by this proceed ing, void, for the reason that the same was an attempt to create a debt contrary to §rial, and if it shall be so determined by 26, art. 10, Const., and contrary to § 9, said court, then the court shall so state 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 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 no such warrants shall be re- the town and its citizens received the benefunded until the close of the fiscal year during which they were issued." If it was the purpose of this act to authorize the court to give its approval to any municipal corporation to issue bonds in payment of an indebtedness which did not exceed the revenue and income which had been provided by the proper officials for such year, although such indebtedness may have exceeded the actual revenue and income collected by said municipality, then it would doubtless be valid. On the other hand, if, construing the act as a whole, it is made clear that it was the intent of the legislature to authorize the court to make valid a pretended obligation of the municipality, which was attempted to be created in violation of § 26, art. 10, of the Constitution, and which was, as a matter of law, invalid, then such act is in conflict with both the letter and spirit of said provision of the Constitution, supra, and must fall. Considering every part of said section, it is apparent that the purpose in passing the same was an attempt on the part of the legislature to authorize the court to validate indebtedness attempted to be created, which is invalid under the Constitution. This the legislature has no power to do. It could not authorize the court to give life and validity to something which never had any legal existence. If the debt was not created in violation of the provision of the Constitution, quoted supra, then this act of the legislature is superfluous, in that said debt or contract would need no decree of the court to validate it. It would be valid, if created in compliance with the Constitution and law, without a decree of the court to validate same, and would only require the approval of the court to the issuance of refunding bonds in the manner provided for by law. It cannot be said that this act is necessary in order to authorize the funding of said indebtedness or outstanding warrants, if it was in fact a valid indebtedness, for the reason that § 362, Rev. Laws 1910 ($ 372, Comp. Laws 1909) contains complete provisions for refunding outstanding warrants and indebtedness, if the same are a legal obligation, and full power is given to the court to determine such issues; and it must be conceded that, if the indebtedness is illegal and void by reason of having been contracted in violation of the plain provision of the Constitution, the court would be unauthorized to sanction the bond issue. The legality of the indebtedness is one of the issues the court must determine in a proceeding to refund outstanding fit of and full value for this indebtedness; and, inasmuch as the people have ratified the same, that the court should refuse to hold that it is void as being in conflict with the Constitution. If we were authorized to inaugurate policies and to amend the organic law to meet such contingencies, this argument might appeal to us with some force. The framers of the Constitution, and the people in approving same, have deemed it wise to place a limitation upon all the people and upon every political subdivision of the state; and if the legislature, or any political subdivision of the state, may, by its acts, exceed the limitations placed upon it by the Constitution, create a debt in conflict therewith, and thereafter ratify such debt and thereby make it valid, it would simply mean the destruction of this provision of the Constitution. If the town of Afton can contract a debt and bind its people to the amount of $8,000 in excess of the limitations imposed by the Constitution, then it necessarily follows it may create a debt of $80,000 or $800,000. If one town may, in violation of the Constitution, contract an obligation for which the people may be held liable, then every other town in the state may do likewise. If this court authorizes or permits this provision of the Constitution to be nullified in this manner, as a logical sequence, every other provision of the Constitution may likewise be disregarded and violated. 28 Cyc. p. 1540, states the rule as follows: "Pay as you go' expresses a municipal rule prevailing in some states that annual expenditures must be restricted to annual revenue, of which every person contracting with a municipal corporation must take notice at his peril.” Again, on page 1560, id: "A contract made by a municipality in excess of its debt limit as fixed by the Constitution or by statute is void, at least as to the excess; and everyone dealing with a municipality is charged with notice of a limitation upon the amount of its indebtedness. Municipal indebtc lness in excess of a constitutional limitation cannot be made good by ratification, since power to authorize originally is a condition precedent to the power to ratify subsequently. .. A municipal contract, expenditure, or appropriation, invalid when made, may be cured by subsequent legislation, unless the invalidity result from a violation of a constitutional inhibition." It will be seen from this that a debt attempted to be created in excess of a limitation in the Constitution cannot be ratified by a vote of the people. O'Neil Engineering Co. v. Ryan, 32 Okla. 738, 124 Pac. 19. We therefore hold that chapter 117, Sess. Laws 1910, is in conflict with § 26, art. 10, of the Constitution, hence is unconstitutional and void. thorizing or attesting such indebtedness, or from his bondsmen." Section 10 of said act provides that any such officer violating § 9 shall be guilty of a misdemeanor and fined no less than $100 nor more than $1,000, and shall forfeit and be removed from his office. 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 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 destroy or impair, the chapter 80, Sess. Laws 1910-11, 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, allow, or authorize any indebtedness against their respective municipality, or authorize it to be done by others, in excess 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 bond issue. Any such indebtedness, contracts incurred, acknowledged, approved, allowed, or authorized in excess of the estimate made and approved for such purpose for such current fiscal year, or in excess of the specific amount authorized for such purpose by a bond issue, shall not be a charge against the municipality whose offi It follows that the judgment of the trial` court must be affirmed, and it is ordered. All the Justices concur. OKLAHOMA SUPREME COURT. (Division No. 2.) MAX ROBINOVITZ, Plff. in Err., V. J. G. HAMILL. (— Okla. Partnership name. 144 Pac. 1024.) statutes → fictitious 1. Sections 5023 and 5025, Comp. Laws 1909, and § 2444, Id., relate to partnerships composed of two or more persons, and are not intended to apply to one person who, Headnotes by HARRISON, C. |