BLACKBURN v. OKLAHOMA CITY

BLACKBURN v. OKLAHOMA CITY
1893 OK 14
33 P. 708
1 Okla. 292
Decided: 07/01/1893
Supreme Court of Oklahoma

BLACKBURN
v.
OKLAHOMA CITY

Appeal from the Probate Court of Oklahoma County

Judgment reversed. On petition for rehearing in the foregoing case the opinion of the court was delivered by

BURFORD, J.:

¶1 The appellant Blackburn insists that this court erred in its application and construction of the law in the opinion in this case.

¶2 Counsel for appellant has favored us with a brief which evidences great research, industry and learning, and which abounds with much sound reasoning.

¶3 It is ably contended that certain laws, statutes and enactments of the French Republic, the territory of Indiana, the territory of Missouri and of the United States were in force in this Territory during the period that it was set apart as Indian country, and at the time Oklahoma was settled by the whites in April, 1889.

¶4 But the reasoning of counsel leads them to an erroneous conclusion by reason of being based upon false premises.

¶5 They contend that the provisions of the ordinance of 1787 for the government of the Northwest Territory were adopted and extended over the country now known as Oklahoma by the Act of Congress approved March 26, 1804. (2 Stat. at Large, 283.)

¶6 A brief review of the history of National legislation affecting this period will show the error of this position.

¶7 The act for the government of the territory of the United States, northwest of the Ohio river, was approved July 13, 1787, prior to the Louisiana purchase and at a time when the territory now included in Oklahoma did not belong to the United States.

¶8 Article 2 of the Act provides:

"And should the public exingencies make it necessary for the common preservation, to take any persons property, or to demand his particular services, full compensation shall be made therefor."

¶9 The appellant contends that this provision was in force in Oklahoma prior to the adoption of our organic act, and that his particular services were required and demanded, as an officer of the provisional government of Oklahoma City, and hence the present de jure city is bound to make compensation. By Act of Congress approved May 7, 1800, the Indiana Territory was created, comprising all the territory belonging to the United States west of a line running north from the Ohio river at a point opposite the mouth of the Kentucky river to Fort Recovery, and thence north to the Canadian boundary line, and said act guaranteed to the people of Indiana Territory all the rights, privileges and advantages granted and secured by the ordinance of 1787. At that time the Indiana Territory did not include or have jurisdiction over the region now known as Oklahoma.

¶10 The treaty with France for the cession of the Province of Louisiana, which included Oklahoma, was ratified October 21, 1803, received executive approval October 31, 1803, and formal possession was taken of the lands ceded on December 20, 1803. Up to that time the ceded lands had been under French dominion and laws, except a portion which a part of the time had been under Spanish control.

¶11 By Act, approved March 26, 1804, Congress divided the French purchase into two divisions, one of which was denominated the territory of Orleans, for which a territorial government was prescribed.

¶12 The other was designated the District of Louisiana, and included the portion of country now known as Oklahoma. For the District of Louisiana no form of government was provided, but section 12 of said act provides:

"The executive power now vested in the Governor of the Indiana Territory shall extend to, and be exercised in the said District of Louisiana. The governor and judges of the Indiana Territory shall have power to establish in the said District of Louisiana inferior courts and prescribe their jurisdiction and duties, and to make all laws which they may deem conducive to the good government of the inhabitants thereof. Provided however, That no law shall be valid which is inconsistent with the constitution and laws of the United States, or which shall lay any person under restraint or disability on account of his religious opinions, profession or worship; in all of which he shall be free to maintain his own and not burdened for those of another."

¶13 Section 13 provides as follows:

"The laws in force in the said District of Louisiana at the commencement of this act, and not inconsistent with any of the provisions thereof, shall continue in force until altered, modified or repealed by the governor and judges of the Indiana Territory aforesaid."

¶14 It will be observed that this act of congress did not extend the laws of Indiana Territory over the District of Louisiana, but on the contrary continues in force for a limited time the laws then in force in said district, and authorized the governor and judges of the Indiana Territory to make such laws for said district as in their judgment might seem necessary and proper. The provisions of the ordinances of 1787 were not in force in, or, applicable to, the country now known as Oklahoma.

¶15 By act approved March 3, 1805, Congress provided a Territorial form of government for the District of Louisiana, and designated it the Territory of Louisiana. The laws then in force were continued in force until altered, amended or repealed by the territorial legislature.

¶16 Congress by Act approved June 4, 1812, enacted that the territory of Louisiana should thereafter be called Missouri, and by said Act a new territorial government was provided for said territory.

¶17 Section 14 of this act contains provisions similar to the ordinance of 1787, to-wit:

"If the public exingencies make it necessary for the common preservation to take the property of any person or to demand his particular services, full compensation shall be made for same."

¶18 This provision seems to have continued in force until the adoption of the constitution of the state of Missouri in 1820, and the admission of that state into the Union, when it disappears, and was by the change of government and the adoption of the constitution which received the assent of Congress, if not directly at least by implication repealed, so far as relates to the territory now known as Missouri.

¶19 When the lands now known as Oklahoma were set apart and ceded to the Creeks and Seminole Indians, and the whole Indian Territory set apart for the exclusive use and occupancy of the Indians, the laws made for the government of the whites were withdrawn from the Indian Territory or by treaty stipulation repealed, and ceased to operate in the Indian country. The settlement of the country by whites after the purchase of the lands from the Indians and extinguishment of their rights, customs and laws, did not have the effect to reinvest the obsolete laws with any validity, force or effect.

¶20 The United States circuit court of appeals in St. L. & S. F. Ry. Co. v. O'Laughlin. 49 F. 440, in discussing this question say:

"There was no statute on any subject in operation in this territory outside of the Acts of Congress regulating intercourse with Indians and punishing offences against the United States. The laws of the territory of Missouri had no force or effect in the Indian country after the country ceased to be a part of such territory."

¶21 And this case is conclusive on this subject.

¶22 But were we to concede that the provision contended for by appellant was in force at the time this country was settled, and during the time he acted as recorder of the provisional government of Oklahoma City, we do not think his case would come within its provisions. There was no public exingency that made it necessary for the common preservation that he should fill the office * * * there was no power that could compel him to act. No law requiring public records to be kept * * * no authority for any one to employ him for such duties and no public necessity for his services. We are aware that Congress afterwards made certificates issued by the authorities organized by the people prima facia evidence of occupancy of town lots but in doing this, Congress did not specify or indicate any particular authority, but any authority, official or unofficial, private or public, that the public recognized, and the purpose was to avoid confusion and to enable the trustees to have some basis on which to operate in determining who were proper claimants, but there was no law making it the duty of Blackburn to issue certificates of the character mentioned by Congress. The services of appellant were voluntarily performed--without compulsion--for private gain and not for the public in the sense contemplated by the ordinance of 1787, and subsequent acts. Under such circumstances it was his duty to have looked to the persons for whom he performed services for compensation at the time.

¶23 The contention of appellant is well founded that it has been the policy of the United States and of the several states generally to recognize and, through their proper legislative authorities, make provision for the payment of this class of claims against provisional territorial and municipal governments.

¶24 If the legislature of Oklahoma had authorized these debts to be paid and made provision for their payment, their power in the premises would hardly be questioned, but inasmuch as the legislature has not authorized the payment of the claim, but, on the contrary, provided that claims of this class shall not be paid, the courts have not the power to compel their payment. We find nothing in the law entitling the appellant to a rehearing in this case.

¶25 The petition for rehearing is overruled at costs of appellant.

¶26 All the Justices concurring.