Receipt is acknowledged of your letter of the 16th instant, in which you say that the court fund is exhausted, and that you desire to pay the fees and salaries of certain officers which the law provides shall be paid out of the court fund, out of the salary fund, and you desire to know if this may be done. This office has repeatedly held that one fund may not be used to pay the expense which is a charge against another fund under our statute. It is our opinion that Section 19 of Article 10 of the Constitution is applicable. HON. G. T. RALLS, COUNTY ATTORNEY, COALGATE, OKLA. Dear Sir: Receipt is acknowledged of your letter of the 20th instant in which you inquire as follows; "Please refer to my previous letters with reference to right of county attorneys to file informations in the county court under Sections 3, 4 and 5 of the Sessions Laws of 1913. "I understood from Judge Woods of your office that your department had held that the county attorney would have the right to prosecute said sections, either in the county court or the district court. From the language of the statute it is hard to tell, and I would like very much to have an early opinion from you as to whether or not I have the right to file under Section 4, Session Laws of 1913, in the county court or the district court at my pleasure." We presume you refer to Section 3, 4 and 5 of Chapter 26, Session Laws, 1913. With that assumption, we are advised that the offenses therein defined are felonies under our laws. See Section 2086, Revised Laws, 1910. Therefore, it is your duty to hold a preliminary examination before an information may be filed in the district court, unless the prosecution is by indictment, which should be returnable in the district court. See the case of Jinter v. State, 6 Okla. Crim. 305. 118 Pac. 412, as to the jurisdiction of the district court in a case of this kind. THE STATE BOARD OF PUBLIC AFFAIRS, CITY. Gentlemen: On September 10, 1915, in response to an inquiry from the Governor, Mr. Miley of this department wrote an opinion concerning the working of convicts in the mines owned by the state. Owing to the importance of the matter, Mr. Miley and I have gone over the subject again and feeling that possibly the former opinion may be misconstrued, I have concluded to address you this letter upon the subject for your guidance. The only authority to employ convicts in state mines is that found in Section 2 of Chapter 215 of the Laws of 1913, and this section applies only to lands acquired under Section 1 of said act and chapter. Section 4006 of the Laws of 1910 provides as follows: In no event shall convicts in the state ever be employed in any coal or mineral mines of this state, other than stone, or such other material as will be necessary for the construction and maintenance of the public highways or public works of the state." This section in general terms prohibits the use of convict labor in any coal or mineral mines of this state. At the time the former opinion was written, Mr. Miley was under the impression that the lands which you proposed to acquire and operate were the lands mentioned in Chapter 201, of the Session Laws of 1913, but it is now understood that this is not the case and that it is proposed to acquire lands elsewhere for coal and mineral purposes, and the question is can convict labor be used to operate such lands. I advise, therefore, that in my opinion you have no right to use convicts in any mine, not located on the identical property described in Section 1, Chapter 215 of the Laws of 1913. MR. WM. G. CAPPS, MT. VIEW, OKLA. Dear Sir: Replying to your letter of the 21st instant your attention is directed to Sections 6776 and 6777 Revised Laws, 1910, which provide as follows: "'6776. No board of county commissioners, nor city council, nor board of trustees of any township, or town, nor district board of any school district in this state, shall make any contract with any of its members or in which any of its members shall be directly or indirectly interested, and all contracts made in violation of this section shall be wholly void.'' "6777. Every officer of any county, township, city, town, or school district, who shall order or direct the payment of any money, or transfer of any property belonging to such county, township, city, town or school district in settlement of any claim known to such offcers to be fraudulent or void, or in pursuance of any unauthorized, unlawful or fraudulent contract or agreement made or attempted to be made, for any such county, township, city, town or school district by any officer thereof, and every person having notice of the facts, with whom such unauthorized, unlawful or fraudulent contract shall have been made, or to whom, or for whose benefit such money shall be paid or such transfer of property shall be made, shall be jointly and severally liable in damage to all innocent persons in any manner injured thereby, and shall be furthermore jointly and severally liable to the county, township, city, town or school district affected, for double the amount of all such sums of money so paid, and double the value of property so transferred, as a penalty to be recovered at the suit of the proper officers of such county, township, city, town or school district, or of any resident taxpayer thereof, as hereinafter provided." IN RE CHANGE OF LOCATION OF POOL HON. A. DUFF TILLERY, COUNTY JUDGE, Dear Sir: Receipt is acknowledged of your letter of 27th ult., asking advices of this office relative to a change of location of a licensed pool hall from a point in a city or town at which it is licensed to run, to some other point therein. You are respectfully advised that the law is silent with reference to changes of location by such enterprises, but is specific as to the requirement that there must be a definite location which shall be advertised, that citizens may be able to protest the issuance of license. Such provision is found in Section 2, Chapter 21, Session Laws of Oklahoma, 1915, part of which is as follows: "Upon application being filed, the county judge shall give five days' notice by posting notices, one of said notices to be posted at the county court house and three in the city or town where said pool hall shall be located. Said notice shall contain the name of the applicant and the location of said pool or billiard ball. Any citizen of said city or town may appear before the county judge and protest the issuance of said license." Before the county judge could permit a change of location, if allowed by law to do so, it would be incumbent on him, by advertisement, to apprise the citizenship of the proposed change and give them a chance to show any newly accrued disqualification of the applicant and make further proof that no special liquor dealers' tax stamp or receipt issued by the United States is held by any person occupying that part of such building in which the pool or billiard hall is to be operated. Therefore, in order to make a removal to a new location in the same city or town, it is evident that the requirements of an original applicant must be carried out by the licensee and by the county judge, up to the point of the issue of an original license, all of which, we think would require the payment necessary to be made under an original application. To allow indiscriminate changes of location of such institutions, without advertisement would, in some instances, let the bars down and allow the establishment of such business in buildings and neighborhoods which they could not enter otherwise and defeat the ends of the law. The statute in question is subject to strict construction and we feel that, as no provision whatever was enacted for changes of location, the county judge should require a new appli cation and the issue of new license upon, legal showing, in cases of changes of location. HON. W. B. BLAIR, COUNTY ATTORNEY, KINGFISHER, OKLA. Dear Sir: Replying to your letter of the 9th instant relative to the matter of changing the site of the school house, we enclose copies of opinions to Mr. Henry Weiser, Logan, Oklahoma, under dates of May 13th and June 2d, 1915, which we think will answer your inquiry. If there is any question you have in mind not covered by these opinions, please inform us. As to the second matter inquired about, relative to the liability of the county for the payment of jurors in civil cases, your attention is directed to Section 3236, Revised Laws, 1910, which expressly creates a liability on the part of the county for the attendance of jurors before any court of record. Chapter 27, page 50, Session Laws of 1913, is not a statute expressly creating a liability on the part of the county for the payment of either jurors or witnesses, but merely provides a method of payment for jurors and witnesses in criminal cases in which the county is liable. Such chapter does not have the effect of amending Section 3236, supra, so as to relieve the county of the liability created by said Section 3236. UNITED STATES DEPARTMENT OF AGRICULTURE, LAWTON,. OKLA. Gentlemen : Receipt is acknowledged of your letter of the 6th instant in which you make the following inquiries, to which our answers follow: "No. 1. Will the spring, 1915, organization hold over for two years, or will it be necessary to re-elect members of the county fair associations under the Free Fair bill, at the annual meeting in November, 1915, as provided in bill?" Answer: The law contemplates that an organization be perfected on the second Saturday in November, 1915, which will hold good for holding fairs in 1916 and 1917. The present organization is good only for holding a fair prior to 1916. "No. 2. Can a county in which there is no agent organize under the Free Fair bill?'' Answer: The law does not expressly provide any way of organizing except through the county agent. If any organization is made in any other way and attacked the courts must determine the valadity thereof. "No. 3. In counties that are not organized under the Free Fair bill, but which have county agents, can the county agent call township meetings for the purpose of organizing and electing members of the county fair association, on any date before or after the date set for the annual election, i. e.: the second Saturday in November, 1915'' Answer: The election should be called for the second Saturday in November, 1915, and biennially thereafter. "No. 4. After the initial organization is completed who calls the annual meetings for subsequent elections, the county agent, or the offcers of the fair association?" Answer: The county agent. Perhaps it would be a good plan for you to notify all the county agents to make an organization on the second Saturday of November of this year without fail. In that way litigation may be avoided." MR. W. B. BLAIR, COUNTY ATTORNEY, KINGFISHER, OKLA. Dear Sir: Complying with your request by telephone for a construction of the meaning of the phrase "last preceding election," as used in Section 7382, Revised Laws, 1910, authorizing an increased levy by vote, you are advised that in our opinion that means the election last held throughout the particular municipality voting on the question of the increased levy where such "last preceding election" was one authorized to be held by the general statutes of the state, applicable to the municipality for the selection of its officers. For instance, the elections in cities and towns throughout the state, held in April of this year, is such an election, but a special election to vote bonds or for other such purposes, would not be the kind of an election referred to. HON. W. B. BLAIR, COUNTY ATTORNEY, KINGFISHER, ÖKLA. Dear Sir: Receipt is acknowledged of your letter of recent date, asking for construction of Section 7382, Revised Laws, 1910, when read in connection with Section 2139 of Volume 1. You state that it is your opinion that in the absence of any other definition of "elections" Section 2139 would make Section 7382 mean by last preceding election" the last general election. I am constrained to differ with you on this proposition. Section 2139 provides as follows: "The word 'election,' as used in this article, designates only elections had within this state for the purpose of enabling electors, as such, to choose some public officer or officers under the laws of this state, or of the United States."' You will observe that the word "election" here designates only elections had for the purpose of enabling electors to choose public officers. Section 7382 provides that: "No election for an increased levy shall be valid unless fifty per cent. of the qualified electors shall vote therein." We hold, therefore, that the last preceding election referred to in Section 7382 means the last election at which the electors voted for public officers, whether a general state election or a local city or town election. It is with the greatest respect that we are constrained to differ with you. TO THE STATE GAME AND FISH WARDEN: Sir: The attention of this office has been called to an opinion rendered to your predecessor, dated March 12, 1915, relative to the issuance of hunting licenses to citizens of the United States who have not been residents of this state for a period of sixty days immediately preceding application therefor, in which it was held that upon payment of a fee of $15.00, a license should issue "but the license so issued must prohibit such licenses from hunting deer, turkey or prairie chicken." At that time our attention was not directed to Section 2, Chapter 129, Session Laws, 1911, which amended Section 3, Article 4, Chapter 19, Session Laws, 1909, by omitting the words "except to hunt deer, turkey or prairie chicken," thereby permitting the same kind of a license to issue to a nonresident citizen for the sum of $15.00 as is issued to a resident citizen for $1.25, but this amendment has no application to either resident or non-resident aliens. The opinion of March 12th is withdrawn and the foregoing substituted therefor. By the laws of 1915, page 620, it is made unlawful to hunt deer in the territory embraced in the counties of Comanche, Čaddo, Kiowa, Major and Blaine, and we suggest that the licenses issued should so state. Also by Section 2, Chapter 185, Session Laws, 1915, page 376, it is made unlawful to hunt, capture or kill pheasants or prairie chickens at any time of the year. These and other amendments to the game laws contained in Chapter 185, supra, relative to the bag limit, etc., it would be well to have printed on the licenses, if possible, so that hunters will not be misinformed. MR. J. P. BULLARD, LINDSAY, OKLA. You inquire what is the length of the open season for killing quail. Section 2, Chapter 185, supra, makes it lawful to hunt, capture or kill quail from November 30th to January 15th. This would include the 30th day of November and exclude the 15th day of January, as Section 3260, Revised Laws, 1910, provides: "Whenever any period is named during which an act is permitted or prohibited, the first day shall be included within and the last excluded from, such period." HON. W. G. ASHTON, COMMISSIONER OF LABOR, CITY. Dear Sir: Receipt is acknowledged of your letter of the 25th ult., in which you state that a break down occurred in the machinery of a laundry in Oklahoma City which required some little time to repair; that the females employed therein were required to work after five o'clock in the evening on such occasion to make up for time lost during the break-down; that during the interim required to make the repairs such females were not engaged in the active performance of the duties of their employment but were compelled to remain at the place of employment in order to be on hand when work was resumed. You give it as your opinion that it would be a violation of the nine-hour law for the employer to work such females after five o'clock in the evening under such circumstances, although they were not required to actually do laundry work more than nine hours during the twenty-four hour period. Section 1, Chapter 148, Session Laws, 1915, provides: "That no female shall be employed or permitted to work in any manufacuring, mechanical, or mercantile establishment, laundry, bakery, hotel, or restaurant, office building or warehouse, or telephone establishment or office or printing establishment, or book bindery, or any theater, show house or place of amusement, more than nine hours in any one day."' Section 2 provides: "The hours of work may be so arranged to permit the employment of females at any time so that they shall not work more than nine hours within twenty-four hours of any one day; provided, however, that in time of great disaster, calamity, or epidemic, telephone establishments may work their operators, with their consent, for a greater number of hours in any one day than above stated; said operators to be paid not less than double their regular compensation for such extra time; provided, this act shall not apply to females who are registered pharmacists, or employed as stenographers, or nurses, and provided, further however, that in case of emergency in hotels, and restaurants, females may work to a maximum of ten hours during the twenty-four hours with their consent; such females to be paid not less than double their regular compensation for such extra time; and provided, further, that this act shall upply only to towns and cities containing a population of 5,000 or more, as shown by the last federal census, or any federal census hereafter taken." By Section 4 it is made a misdemeanor, with certain punishment as therein prescribed, for any employer, overseer, superintendent, foreman, or other agent of any such employer to require any female to work in any of the places mentioned in Sections 1 and 2 more than the number of hours provided for in this act, during any day of twenty-four hours, or to fail, neglect or refuse to so arrange the work of females employed in said places mentioned in Sections 1 and 2 so that they shall work more than the number of hours provided for in this act during any day of twenty-four hours or the number of hours prescribed in this act," etc. The law admonishes the employer not to work females more than nine hours in any one day of twenty-four hours; also to so arrange the working hours of females that they shall not be required to work more than nine hours in a day. Now there can be no doubt that if an employer actually worked, that is, kept a female in the active performance of the duties of her employment in any of the places mentioned, supra, more than nine hours in a day of twenty-four hours, such employer would be guilty under the act. Nor is there any doubt that if such an employer should fail to neglect or refuse to arrange the hours that females shall be required to work in his factory, workshop, laundry, etc., so that such female shall not work more than nine hours per day he (the employer) would be guilty under the act. The question then arises as to the meaning and intent of the Legislature by the use of the terms "employed" and "permitted to work" in Section one (1) of the act. We think an employee is "employed" or "at work" within the meaning and intent of this law whenever she is required by the employer to remain on duty at the place of employment between the nine hours required to be arranged for her to work. Suppose, for instance, that an employer had arranged a schedule of nine working hours for females beginning at 7 a. m., and the females employed reported promptly at that hour; through no fault of theirs and without notification the employer failed to open the place of business until 9 a. m. Can it be successfully contended that such females may be required to remain two hours longer than their regular hours that day on the mere pretense that they were not actually "employed" or "at work" from 7 until 9. Such a construction would defeat the very purposes of the law by requiring excessive hours of employment to the manifest injury of those who were intended to be protected. No useful purpose is subserved by requiring an employer to arrange the nine hours a female employee is to work if such employer may keep the employee on duty during the entire nine hours without work and then begin the work on the tenth hour and by such tactics escape punishment under the law. The same principle would apply to any portion of the nine hours that the employee was kept on duty. Under such circumstances it is our opinion that she may not be lawfully required to work after the nine-hour period has expired if she has been required to remain on duty during that period. HON. C. F. TWYFORD, COUNTY ATTOR- Answering your letter concerning the construction of Section 3250, Laws, 1910, it is the opinion of a majority of this office that a law enacted prior to the term of an elected officer, may operate to increase or decrease the salary of the same during the term. It is believed that the constitutional provision does not place an inhibition upon such change, and if the conditions stated in Section 3250 accrue during the term, it would affect the salary accordingly. Mr. Matson dissents from the view taken of Section 3250. MR. B. R. RAYBURNE, SHERIFF, GARVIN COUNTY, PAULS VALLEY, ÓKLA. Dear Sir: In reply to your letter of the 23rd instant, asking whether or not the sheriff's force must pay the county 25 per cent. of all fees collected for serving tax warrants, you are advised that Section 1, Chapter 12, Session Laws, 1911, governing in such cases, provides: "At each monthly meeting of the board of county commissioners the sheriff shall render an itemized and verified report of the work of the preceding month, and seventy-five per cent. of the fees earned by him in person, and collected, in all cases, shall be paid into the county treasury and duplicate receipt therefor filed with the county clerk, and he shall also file an affidavit to the effect that all work turned over to and performed by the deputy sheriffs during the preceding month, as shown by the report, was made necessary by reason of the fact that he was sick or so engaged with other duties pertaining to his office that he could not perform such duties." Section 7392, Revised Laws 1910, provides that the sheriff shall collect the same fees for sales of property on tax warrants as for sales of personal property under execution. We reach the conclusion, therefore, that these fees are to be reported as are other fees. HON. HAROLD A. MELES, ASSISTANT COUNTY ATTORNEY, MCALESTER, OKLA. Dear Sir: Receipt is acknowledged of your letter of the 10th instant in which you State: "Please write me your opinion to the following, when cotton is shipped to different parts of the country to the compress, when said cotton is demanded by the buyer and the seller to be weighed, for settlement, who is the proper weigher to weigh the same, the county weigher or the compress, when the county weigher is present? "And what fees said weigher is to receive for the said weighing? "Has the compress any authority to weigh any cotton when the county weigher is there to weigh the said cotton? "Most of the cotton of Pittsburg County is sold in the seed and is shipped direct to the cotton compress company, to be weighed there for settlement, and who has the authority to weigh said cotton?" From your inquiry we infer that you refer to the weighing of the cotton before it is ginned; that the same is shipped to the compress to be sold as seed cotton; that the owners of the compress are the bona fide purchasers thereof in that form; that the same is then ginned and baled and later compressed. If the foregoing correctly states the facts, then our reply is that the bona fide purchasers of the cotton may weigh the same, provided the seller has agreed thereto, but that no charge of any kind may be made for such weighing either directly or indirectly. See Section 1749, Revised Laws, 1910. However, under the provisions of Chapter 186, Session Laws, 1915, it is mandatory for the county weigher to weigh each and every bale before the same is compressed. For this service the purchaser must pay the county weigher or his deputy a fee of five cents. MR. E. B. SPARKS, SECRETARY, COPAN, OKLA. Dear Sir: 1. Independent School District No. 4, of Copan, Washington County, Oklahoma, wants to know if a surety on treasurer's bonds to the district should reside within the state? Answer: Yes, if personal security is given and if a surety company it must be one authorized to do business in the state. 2. Also the amount of school funds the district treasurer should deposit in the bank with a capital stock of $10,000.00? Answer: There is no specific law governing the amount that should be deposited in a bank at any one time by the treasurer of an independent school district. In the absence of an express statute, we think this matter may be controlled by a rule or regulation of the board authorized by Section 8, Article 6, Chapter 219, Session Laws, 1913. 3. Should the treasurer's bond to the district and the bank's bond to the treasurer each be secured by sureties residing within the state? Answer: The answer to inquiry No. 1 is applicable. 4. Or does the law require either of these bonds to be surety bonds?. |