The Wichita daily eagle. [volume] (Wichita, Kan.) 1890-1906, 1899-05-14
BIG QUESTION RAISED
BY Mr. Robert A. Nef, Upon
Judge Burford's Decision
REGARDING COUNTY SEATS
Rule Might Work in Several
Directions at Once.

Newkirk, O. T., May 13.-To a CORES
pendent OF The Eagle, Robert a. Nef said
to-day: ''On the sth of this month Chief
Justice Burford, OF the supreme court of
Oklahoma, rendered an opinion in cham
bers that, if sustained by the associate
justices, will cause rafting of dry bones
in old Oklahoma proper. The matter
passed upon was in reference TO the coun-
ty-seat election called TO be held in Grant
county ON the 18th of May. The learned
judge is of the opinion that all the county
seats in the strip counties were perma-
nently located by the act of congress of
March 8. 1893, and the presidents procla-
nation opening he Cherokee Strip 10 set
tIement. Section Il of the act of March
3, 1888, provides:
g" Before any of the aforesaid lands are
opened to settlement, it shan be the duty
Of the secretary Of the interior to divide
the same into counties. which shall con-
tain as near as possible not less than 500
square miles in each county; that as soon
as the county lines are designated by the
secretary he shall reserve not to exceed
one-half section of land in each county,
to be located for county-seat purposes
Internationally the board Of county
commissioners have called d county-seat
election, under section of the statutes of
Oklahoma providing for county-seat cleo
tions. The learned chief justice holds that,
in effect, the Oklahoma statute is not
general, on account of the act of con-
gress of March 3. 1893, but that the rights
and benefits granted therein are only TO
be enjoyed by the counties OF old Okla
homa proper, and as Grant county is not
portion of old Oklahoma. she is not en-
titled to the same privileges. In support
of this. Chief Justice Burford says:
Z" 1t will be observed that congress
omitted from this act (neaning the act of
March 3. 1881 the provision authorizing
the legislature to change these county
seats. We must assume that congress had
reasons for this omission, and that it was
the purpose of congress TO permanently
locate these county-seats, at least so long
as We are a subordinate dependency of
the federal government. Territories are
not possessed Of sovereign powers derived
from their inhabitants, and the inherent
powers vested in the citizens of a state
are lacking in the inhabitants of a terri
tory. A territory derives all its govern
mental functions and powers from the
general government, and can only exer-
else such powers as are conferred
''It isn't my object to critfcise the wis
dom of the learned Judge but TO call at
tention - its far-reaching effect if sus-
tanned by the remainder of the supreme
court. When old Oklahoma was opened
to settlement the settlers derived their
lands free. The only lands reserved from
settlement were sections Is and S. which
wre reserved as chool lands. When the
Cherokee Strip was opened to settlement
the settlers were required to pay for their
land. In the Cherokee Strip the lands re-
served from settlement were sections IS
and 36 for school lands and sections 13 and
SO for public buildings. The purchase price
of these reserved sections in the Cherokee
Strip was added to the purchase price of
the lands opened to settlement, and the
settlers of the strip have it to pay. There
is not a single word in the act Of March
3, 1893. or in the presidents proclamation
opening the strip to settlement. comforting
upon the legislature or the territorial Of
1icials any authority whatever to expend
single dollar of revenue derived from
sections IS and 80 upon any public build
ing or institution located outside of the
county in which the land is located. If
the supreme court is to assume that the
territorial legislature is powerless to leg
islate upon county-seat matters in the
Cherokee Strip counties simply because
congress did not specially confer the pow
er upon the legislature so to do. then It
is not reasonable to presume that the
supreme court will assume that the Iegis
lature or territorial officials have no au-
thority whatever to expend a single cent
of revenue derived from sections Is and
SO outside of the counties in which these
lands are located. It Is openly claimed by
the settlers of the Cherokee Strip that the
object in reserving sections IS and SO, for
which the settlers must pay was for the
purpose of constructing and maintaining
public buildings in the various counties
in the Cherokee Strip, such as court
houses, jails and county institutions. 1t
is claimed by the settlers that it would
be a great injustice to make them pay
for sections Is and Sc. besides paying for
their claims. and then permit the Iegis-
lature TO appropriate the revenue derived
tEerefrom 70 erecting public buildings in
old Oklahoma. where the settlers received
their land free.
Now If the supreme court comedies
with the view taken by Chief Justice Bur
ford. and holds that the territorial legis-
lature has no power to legislate upon
county-seat matters for counties in the
Cherokee Strip. simply because the act
Of congress o. March 5. 1895. IS silent upon
the matter and does not specially confer
the power upon the legislature 50 70 do:
then. TO be consistent, the supreme court
should hold that the legislature has no
power to appropriate the funds derived
from sections q and IS - the erection Of
public buildings in old Oklahoma. for the
reason that the proclamation setting apart
and reserving those sections does not con-
fer upon the legislature the power 70
SO do
"Tf silence upon the part q the national
legislative body is 10 be interpreted ny our
territorial courts as being Prohihitive. It
wiz apply 10 several sections of the act
OF March 3, 1895. and the proclamation :
opening the Cherokee Strip 10 settle
meat.
TO HOLD ELECTION ANYWAY