TOWN OF STILLWATER v. MOOR

TOWN OF STILLWATER v. MOOR
1893 OK 13
33 P. 1024
Decided: 06/20/1893
Supreme Court of Oklahoma

Error from district court, Payne county; E. B. Green, Judge.

A complaint of the town of Stillwater charging John M. Moor with violating an ordinance of the town was quashed, and plaintiff brings error. Affirmed.

Neill & Clark, for plaintiff in error.
Geo. W. Hall, for defendant in error.

DALE, J.

¶1 This is a writ of error from Payne county, prosecuted for the purpose of reversing the ruling of the district court of that county. The action of the court below was based upon a proceeding brought form the justice of the peace of the town of Stillwater by appellee, wherein appellee sought to have the district court quash a complaint charging him with having violated an ordinance of said town. The case was presented to the court upon an agreed statement of facts, and, the motion to quash having been sustained, the town of Stillwater brings the case here for review. The agreed statement of facts is as follows: First. That at some time prior to the 10th day of March, 1891, the inhabitants of what is now known as the "Town of Stillwater" were duly incorporated and organized, under section 40, p. 229, of the Nebraska Statutes, then in force in Oklahoma, and known as the "Village of Stillwater." That, under said incorporation and organization thereunder, the following named persons had been duly elected, and were on or about the 10th day of March, 1891, acting as councilmen of the said village of Stillwater, to wit: John Clark, George Haycraft, J. B. Murphy, Hay Hamilton, and D. W. Murphy. That on the said 10th day of March, 1891, said council of the village of Stillwater, in regular session, passed what is known as "Ordinance No. 8," to wit, "An ordinance to punish and prevent intoxication." That thereafter, and prior to the incorporation and organization of the town of Stillwater, said ordinance was duly published, according to the provisions of the Oklahoma statutes. That on or about the 5th day of May, 1891, the inhabitants of what was known as the "Village of Stillwater" were duly incorporated and organized under the laws of Oklahoma, as found in chapter 16 of said Code, by the name of the "Town of Stillwater." That, under the last-named corporations and organization, the following named officers were duly elected, to wit: Charles Knoblock, Charles McGraw, and R. L. Hester, as town trustees, each from one of the three wards into which the said town of Stillwater had been divided; T. J. Hueston, marshal; Harry Swoops, treasurer; and J. B. Murphy, clerk. That, at some time after said organization of the trustees, in regular session, passed a resolution extending Ordinance No. 8, hereinbefore referred to, over the said town of Stillwater. And that the same was never republished in any newspaper, or any other way, as provided by law, after said corporation of the town of Stillwater was organized.

¶2 The transcript brought here shows that appellee was arrested for a violation of Ordinance No. 8, referred to in the foregoing statement of facts, on March 18 1892; and the question we will consider is, can a lawful arrest be made under a city or town ordinance, which, after having been adopted, as in this case, by resolution, has never been published, as provided by law? Section 11 of the organic act of this territory provides, among other things, that chapter 14, of the Complied Laws of the state of Nebraska, in so far as the same may be applicable, shall be in force in the territory of Oklahoma, until after the adjournment of the first session of the legislative assembly of said territory. Under section 40 of the foregoing chapter, the inhabitants of Stillwater incorporated as the village of Stillwater, and exercised the powers granted to such village under the laws of Nebraska relating to the same. The legislature of Oklahoma, at its first session, (chapter 16,) passed an act entitled "Cities, Towns, and Villages," which took effect December 25, 1890. This act was intended as a substitute for chapter 14 of the Laws of Nebraska, and fully provided for the incorporation of towns and villages within this territory. After the town of Stillwater had incorporated under the laws of Oklahoma, it appears that the trustees passed a resolution extending Ordinance No. 8, formerly an ordinance adopted while the place was incorporated under the laws of Nebraska, over the town of Stillwater. The ordinance, adopted by resolution, was not published in any newspaper or in any other manner. Clause 18, § 22, art. 1, c. 16, of the Statutes of Oklahoma, provides as follows: "But every by-law, ordinance, or regulation, unless in case of emergency, shall be published in a newspaper in such town, if one be printed therein, or posted in five public places, at least ten days before the same shall take effect." Where the law provides that an ordinance must be published after that the same shall take effect, such provision is mandatory; and it makes no difference that such ordinance may have been in force in the village of Stillwater prior to the time the town of Stillwater was incorporated. Dill. Mun. Corp. § 331. The right to incorporate and to enact ordinances rests upon the law of the legislature, which law must be complied with before such ordinances can be said to be in force; and, this being true, it follows that, at the time appellee was arrested, he could plead as a defense thereto the fact that the ordinance under which the arrest was made was not legally adopted. The judgment of the district court is affirmed.

¶3 The other justices concurring.