Olson v. Logan Cnty. Bank

• Decision Date: 12 September 1911
• Docket Number: Case Number: 2775
• Citation: 1911 OK 293,29 Okla. 391,118 P. 572
• Parties: CHARLES OLSON, County Clerk, v. LOGAN COUNTY BANK.
• Court: Oklahoma Supreme Court

1911 OK 293

118 P. 572

29 Okla. 391

CHARLES OLSON, County Clerk, v. LOGAN COUNTY BANK.

Case Number: 2775

Supreme Court of Oklahoma

Decided: September 12, 1911

Syllabus

¶0 SCHOOLS AND SCHOOL DISTRICTS -- Separate Schools -- Maintenance--Statutes. The act of March 6, 1901, entitled "An Act providing for the establishment and maintenance of separate schools for the white and colored children and for other purposes," was continued in force in the state by section 2 of the Schedule to the Constitution. (a) By said act, under section 9, article 10, of the Constitution, a tax may be levied by the board of county commissioners of Logan county, not to exceed two mills, for the support and maintenance of separate schools.

Error from District Court, Logan County; A. H. Huston, Judge.

Action by the Logan County Bank against Charles Olson, County Clerk of Logan County. Judgment for plaintiff, and defendant brings error. Affirmed.

John Adams, for plaintiff in error

Burford & Burford, Tibbetts & Green, Devereux & Hildreth, for defendant in error

Milton Brown, amicus curiae

WILLIAMS, J.

¶1 This proceeding in error is to review the judgment of the district court in an action wherein the defendant in error, as plaintiff, sought to have the plaintiff in error, as defendant, required by order of said court to issue to the plaintiff a warrant on the treasurer of said county to pay a certain order issued by a certain school district of said county upon a fund in his custody for the maintenance and support of separate schools for the colored race. It was tried upon the following agreed facts:

¶2 That the plaintiff was the owner and holder of a certain order drawn by the proper officers of School District No. 60 of said county for the sum of $ 72.00, drawn in favor of Mary M. Boone for one month's salary as school teacher for the separate schools of said district for the month beginning February 25, 1911, and ending March 25, 1911; that the said Mary M. Boone actually performed the services as teacher during said month under a written contract with the proper authorities of said school district and that neither the said Mary M. Boone nor the plaintiff, her assignee, had ever been paid for such service; that said order had been duly presented to said defendant, the duly qualified and acting county clerk of said county; that on request he had refused to issue a proper warrant upon the separate school fund of said county on said order, on the ground and for the reason that said defendant claimed that the county was not liable for the payment of the teachers in the separate schools, but that said school district alone was liable for said wages. That the county of Logan, for the fiscal year beginning July 1, 1910, and ending July 1, 1911, made a levy for the support and maintenance of separate schools of said county, and that there was at the time of the presentation of said order, as well as at the time of said trial, sufficient funds in the separate school fund in the treasury of said county to pay said warrant; that if said county is liable for the payment of the wages of the said Mary M. Boone for services in the separate schools in said district, it is the duty of the defendant to issue to the plaintiff, the holder of said order, a warrant on the treasurer of said county for the amount thereof against such school fund. That School District No. 60 is situated in Logan county, comprising the city of Guthrie, a city of the first class, and certain adjacent territory surrounding said city, and is a municipal corporation and a regularly organized school district and under the charge and direction of the board of education of said city.

¶3 Section 6469, Laws of Oklahoma Territory 1890, provides:

"In all counties in which the electors have voted to establish separate schools for white and colored children, the board of county commissioners shall annually levy a tax, on all taxable property in said county, sufficient to maintain such separate schools, and said taxes shall be collected in the same manner as other taxes are collected."

¶4 In 1892 this act was amended (section 5864, Laws Oklahoma Territory 1893) to read as follows:

"In all counties in which the electors have voted to establish separate schools for white and colored children, the board of county commissioners shall annually levy a tax on all the taxable property in said county, sufficient to maintain such separate schools, and said taxes shall be collected in the same manner as other taxes are collected."

¶5 In 1897 (Sess. Laws 1897, chapter 34, article 1) the Legislature passed another separate school law, making separate schools compulsory, and this law was declared unconstitutional by the territorial Supreme Court in the case of Porter v. County Commissioners, 6 Okla. 550, 51 P. 741, but it was also held that as said act was unconstitutional, the attempted repeal of the law of 1893 was nugatory.

¶6 On March 8, 1901, the Legislature of Oklahoma Territory passed an act entitled "An Act providing for the establishment and maintenance of separate schools for white and colored children and for other purposes." Said act in part is as follows:

"In all counties separate schools for white and colored children are hereby established and such schools shall be permanently maintained and the board of county commissioners shall annually levy a tax on all taxable property in their respective counties, sufficient to maintain said separate schools as hereinafter provided; and taxes shall be estimated, published, levied and collected in the same manner as other taxes for county purposes and in school districts where such separate schools are maintained no white child shall attend a colored school or colored child attend a white school." (Sec. 1, art. 9, c. 28, Sess. Laws 1901, p. 205; Comp. Laws Okla. 1909, sec. 8200.)

"That in any school district in such county, having both white and colored children of school ages where the number of such children, either white or colored, does not exceed ten, and they can be transferred to schools of their own color in adjoining districts, as hereinafter provided, no separate schools shall be maintained." (Sec. 2, art. 9, c. 28, Sess. Laws 1901, p. 205; Comp. Laws Okla. 1909, sec. 8201.)

"When either the white or colored children of school age in any such school district, having both white and colored children of school age, do not exceed ten in number, the county superintendent of schools of such county shall transfer the white or colored children that are the fewer in number to the nearest school of their own color in some adjoining district, when the same can be done with the consent of their parents, guardians or custodians; or without such consent, when any such children can be transferred without compelling them to travel more than two and one-half miles to attend such school. And when any child is so transferred to another school under the provisions of this act, the county superintendent shall apportion its per capita of all school revenue, except local school district tax and county separate school fund, to the school district to which it is transferred, and such children shall have all the rights and privileges in the school to which it is transferred that are enjoyed by children resident in such district." (Sec. 3, art. 9, c. 28, Sess. Laws 1901, p. 205.)

¶7 This act had the effect of repealing the separate school act of 1892. Ripey & Son v. Art Wall Paper Mill Co., 27 Okla. 600, 112 P. 1119.

¶8 Section 3 of article 13 of the Constitution provides that "separate schools for white and colored children, with like accommodations, shall be provided by the Legislature and impartially maintained." See, also, section 5 of article 1 of...