fered with in so doing by injunction? think so. Hull, Petitioner, v. Superior Court of Shasta Co., 63 Cal. 174, was certiorari to review the proceedings of that court wherein on a petition of Hopping, as sheriff and ex officio tax collector of that county, the newly elected incumbent, the court had ordered said Hull and another to turn over to him the books and papers belonging to that office. Speaking of an objection to his bond and his consequent right to said property, the court said: "Prima facie, however, the bonds under which he qualified were sufficient. Being sufficient, his right to the office and its incidents was unquestionable. But even if the bonds were insufficient, that circumstance would merely affect his right to the office; it would not touch the question of his incumbency. Being the actual incumbent of the office, he was in possession under color of right; he was at least a de facto officer, and had a vested right to act as such until his right was questioned by some one in a proper proceeding for that purpose." We Hawkins county against the commissioners appointed by act of the Legislature to organize Hancock county. The object of the bill was to prevent the organization, and it prayed that said commissioners be enjoined from proceeding further to organize the same, and that the sheriff, clerk, and other officers elected therein be enjoined from the execution of their respective functions. The answer to the bill set up, among other defenses, in effect, that prior to the filing of the bill said county had already been organized by said commissioners; that their functions were at an end; that a full complement of officers had been elected therein, and the county machinery put in operation. There was a decree for plaintiff, in effect, that, for certain reasons, said county was unconstitutionally established, and defendants perpetually "enjoined from the organization of the county," and the same declared to be "unconstitutional and void." On appeal the Supreme Court held not so, but that said county had already been organized when assailed by the bill; that after such organization a court of chancery had no power to abolish it or restrain its officers from executing their several functions-and reversed the decree of the chancellor and dismissed the bill. If the right to the books and papers in that case was vested in the de facto officers, a fortiori it must be here where, as we have pointed out, such severe penalties are imposed on a failure to pursue or on a withholding of, that right. State v. Durkee, 12 Kan. 308, was quo warBut speaking still more directly to the ranto to oust de facto officers of Ellsworth point, Mr. Justice Dillon, in Cochran et al. county. The petition was entitled: "The v. McCleary, Mayor, 22 Iowa, 75, said: "Un- State of Kansas, Plaintiff, against H. J. Corless the law is altered by our statute, it is nell, Stillman Mann, F. A. Ham, E. W. Durperfectly well settled that questions of this kee, W. G. Eastland, Asa Kinney, J. M. Duncharacter cannot be tried and decided in any lap, George A. Landis, F. P. Arbuckle, and collateral or indirect proceeding, as, for ex- B. Pratt, Defendants." It was signed by P. ample, by a bill to enjoin. And the court T. Pendleton, county attorney of Ellsworth of chancery goes so far as to hold that it county, and verified by another. The suit will not interfere before a trial at law, in grew out of an election for the permanent favor even of an officer de jure against an location of the county seat and the election illegal claimant, by enjoining the latter from of county officers. The petition alleged that exercising the functions of the office. Upon fraudulent votes were cast, proposed to conthis subject the authorities speak a uniform test the election, and concluded with a praylanguage. Tappan v. Gray, 7 Hill (N. Y.) er for an ancillary remedy, which was is259, affirming s. c., 9 Paige (N. Y.) 507; sued but later dissolved, and petitioners Markle v. Wright, 13 Ind. 548; Hullman v. brought error. The court said: "Probably it Noncomp, 5 Ohio St. 238; People v. Cook, 8 would be fair to infer from the allegations N. Y. 67 [59 Am. Dec. 451], affirming s. c., of said petition that said defendants were 14 Barb. (N. Y.) 259; Lewis v. Oliver, 4 Abb. and are the said county officers de facto, Prac. [N. Y.] 121; Mayor v. Conover [5 Abb. and that they also claim to be said officers Prac. (N. Y.)] 171; Conover's Case [5 Abb. de jure. This is our interpretation of the Prac. (N. Y.)] 73; Mosley v. Alston, 1 Phil- petition; and with this interpretation, the lips, 790; Foss v. Harbottle, 2 Hare, 492; state, on the relation of the county attorney, Peabody v. Flint, 6 Allen (Mass.) 52; Lord clearly has no right to ask that the said ofv. Governor, etc., 2 Phill. 740; Hagner v. ficers de facto shall be restrained from the Heyberger, 7 Watts & S. (Pa.) 104 [42 Am. exercise of the duties and functions of their Dec. 220]; People v. Carpenter, 24 N. Y. 86; several offices pending this litigation. People People v. Draper, 15 N. Y. 532; Mickles v. v. Draper, 24 Barb. (N. Y.) 265; Hartt v. Rochester City Bank, 11 Paige (N. Y.) 118 Harvey, 32 Barb. (N. Y.) 55; Cochran v. [42 Am. Dec. 103] * * And this for McCleary, 22 Iowa, 75; Markle v. Wright, reasons, as we take it, of public policy, as an 13 Ind. 548; Updegraff v. Crans, 47 Pa. 103; exercise of such power by the courts might Hil. Inj. 446-449. The interest of the pubblock the due administration of public affairs. lic requires that somebody should exercise Ford v. Farmer et al., 9 Humph. (Tenn.) the duties and functions of the various of152, was a bill in chancery by a resident of fices pending a litigation concerning them, that part of Hancock county taken from and no one has a better right to do so than the various officers de facto who claim to be officers de jure"-and affirmed the order of the court below dissolving said injunction. We are, therefore, of opinion that plaintiffs' petition for this court's ancillary writ of injunction should be denied. It is so ordered, and said petition is dismissed. All the Justices concur. (27 Okl. 748) BOARD OF COM'RS OF HARPER COUNTY V. BOARDS OF COM'RS OF WOODWARD, WOODS, AND ELLIS COUNTIES. (Supreme Court of Oklahoma. Jan. 10, 1911.) 1. COUNTIES (§ 16*)-DIVISION-ADJUSTMENT OF RIGHTS AND LIABILITIES-ASSETS. Money, though not on actual deposit with the fiscal agent for a county at the date of the creation of other counties from part of its territory, having been deposited with him so soon thereafter as to fairly raise the presumption that it might have been then on hand, may be considered an asset subject to division. [Ed. Note. For other cases, see Counties, Cent. Dig. 88 12-15; Dec. Dig. § 16.*] 2. COUNTIES (§ 16*)-DIVISION-ADJUSTMENT OF RIGHTS AND LIABILITIES - COST OF BRIDGES. On the creation of new counties out of part of the county of W., part of the cost of a bridge a mile within the borders of the remaining part of such county cannot be charged to one of the new counties, though the traffic over it arises principally in such new county. [Ed. Note.-For other cases, see Counties, Cent. Dig. §§ 12-15; Dec. Dig. § 16.*] 3. COUNTIES (§ 16*)-DIVISION—ADJUSTMENT OF RIGHTS AND LIABILITIES-ASSETS. On creation of H. and E. counties out of art of the territory of W. county, the money paid out by H. and E. counties for transcribing such of the records of W. county as belonged to them, is not chargeable to W. county as an asset, to be divided among the three, H. and E. counties having sent their own agents to do the work, and paid the cost thereof. [Ed. Note. For other cases, see Counties, Cent. Dig. 38 12-15; Dec. Dig. § 16.*] 4. COUNTIES (§ 16*)-DIVISION-ADJUSTMENT OF RIGHTS AND LIABILITIES-ASSETS. The value of the courthouse square of a county is not an asset of it subject to division between it and other counties created out of part of its territory, said square having been a private donation of residents of the county seat. [Ed. Note.-For other cases, see Counties, Cent. Dig. §§ 12-15; Dec. Dig. § 16.*] Original action on the petition of Board of Commissioners of Harper county for a division of the assets and liabilities of Boards of Commissioners of Woodward, Woods, and Ellis counties. Report of special master modified and approved. B. F. Willett, Co. Atty., and Dale, Bierer & Hegler, for Woodward County. C. B. Leedy, Co. Atty., for Ellis County. E. J. Dick, Co. Atty., for Harper County. PER CURIAM. Pursuant to the prayer of a petition filed herein by the county at torney of Harper county, September 17, 1908, this court appointed Hon. Will Linn as special master, in effect, to take testimony concerning the equitable division and distribution of the property, assets, and liabilities derived through process of taxation, bonds, warrants, and other evidence of indebtedness, between Woodward county, as it existed in the territory of Oklahoma, and Harper county, Ellis county, and Woods county, created in whole or in part out of Woodward county, and report to this court a full and complete accounting between said counties. On the coming in of said report, Woodward county excepted thereto because: (1) The amount of money on hand in the fiscal agency of Woodward county at the date of statehood was $1,841.19, and not $4,841.19, as found by the master. (2) Said county was not chargeable as an asset with $7,203 paid out by Harper and Ellis counties for transcribing the records of Woodward county, as found by the master. (3) The bridge warrants of Woodward county outstanding at the date of statehood were $14,670.78, and not $13,417.72, as found by the master. Said county was only properly chargeable with half, and not $1,584, the entire cost of Beaver river bridge, as found by the master. (4) [1] The first exception to the report is overruled, for the reason that, while the record discloses that $1,841.19 only was on actual deposit with the fiscal agency on the precise date of the admission of the state into the Union, the master, in effect, found that an additional $3,000 was so soon thereraise the presumption that the same might after deposited with said agent as to fairly have been at that time, in effect, on hand, but actually so deposited about 30 days thereafter. Under the circumstances, the finding of the master that the aggregate of those amounts constituted an asset o Woodward. county, to be shared by the counties carved therefrom, is so equitable that we will not disturb the finding. We have examined the evidence and hold that the Woodward county bridge warrants outstanding on the advent of statehood were Nos. 492, 276, 277, 278, 284, 289, 290, 292, 293, 291, 294, and 295 aggregating $12,114.58, and not $13,417.72, as found by the master, and which includes every warrant contended for as a liability of Woodward county, except warrants Nos. 495, for $1,341.76, and 496, for $1,413.64, aggregating $2,755.40, and which were by agreement of counsel charged by the master as a liability of Ellis county, and for that reason improperly charged by him as a liability of Woodward county. [2] The exception that Woodward county was only properly chargeable with one-half and not with $5,884, the entire cost of Beaver bridge, as found by the master, cannot be sustained, for the reason that said bridge spans a stream a mile within the borders of said county, and, while it may be true the "For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes traffic over it arises principally or almost exclusively within Harper county, yet it would be so inequitable to hold that the people of that county should pay in whole or in part the cost of constructing said bridge, over which they pass to contribute their wealth to the trade of the parent county, that we will not do so. [3] The exception that Woodward county was not properly chargeable as an asset with $7,203 paid out by Harper and Ellis counties for transcribing the records of Woodward county, properly belonging to said counties, should be sustained, for the reason the evidence discloses that said Harper and Ellis counties sent their agent and had transcribed such of the records of Woodward county as belonged to said counties and paid the cost of so doing. Had Woodward county performed the work and held as a charge against each of said counties its share of the cost of so doing, we might see how such would form an asset of said county; but as the cost of so doing has been paid by the counties in interest, we cannot see how the same enters into this controversy. This is not contrary to any holding of this court. In Re Settlement Ellis and Roger Mills Counties this item was adjusted by stipulation between the parties in interest, and for that reason approved but not passed on by this court. With said item of $7,203 eliminated, and the amount of outstanding Woodward county bridge warrants reduced to $12,114.58 from $13,417.72 as found by the master, as stated, a recast of the master's report shows: Valuation of the taxable property of the counties in interest November 17, 1907, as agreed: Per cent. of Day county warrants Total assets over liabilities. .$ 2,777 40 29 50 .$ 2,806 90 .$ 2,806 90 .$55,798 37 2,869 80 134 70 2,806 90 Net total assets. 952,711 00 .$61,609 77 .5119 per cent. net assets of Wood 148,962 00 ward county .$31,456 85 $3,684,951 00 .2585 per cent. net assets of Ellis 15,890 27 .1889 per cent. net assets of Harper county 11,729 19 county Percentage of taxable value of each county, .0409 per cent. net assets of Woods 2,515 74 .5119 .$61,592 05 .2585 .0409 We are therefore of the opinion: That .1889 Woodward county is entitled to retain .5119 1.002 per cent., or $31,456.85, of the total assets. That from the .2585 per cent., or $15,890.27, Assets of Woodward county at date of total net assets due Ellis county there should be deducted $2,869.80, the net assets of that county, leaving the amount due from Woodward county to Ellis county $13,020.47. That from the .1889 per cent., or $11,729.19, of the total net assets due Harper county, there should be deducted $134.70, the net assets of that county, leaving due from Woodward county to Harper county $11,594.49. That from the net assets of Woods county, or $2,806.90, there should be deduced .0409 per cent., or $2,515.74, of the total net assets of Woods county, leaving $291.85 due from .$105,916 72| Woods county to Woodward county. In so 6.004 55 4,841 19 23,000 00 200 00 2,700 00 recasting this account we have not been unmindful of other exceptions taken thereto before the master, but not relied on in the brief filed by Woodward county in this court, which said exceptions are overruled. [4] Among said exceptions is that the master erred in failing to charge $2,000, the value of the courthouse square, as an asset of said county. Not so, for the reason the proof shows that said square became an asset of said county by private donation of certain residents of Woodward, the county seat thereof, and hence, in this instance, we will not hold the same an asset subject to division between the counties in interest. Except as indicated, the report of the master is affirmed. It is therefore ordered, adjudged, and decreed that Ellis county have and recover judgment against Woodward county for $13,020.47; that Harper county have and recover judgment against Woodward county for $11,594.49; that Woodward county have and recover judgment against Woods county for $291.85; that the same be due and payable one year from this date, together with 6 per cent. interest thereon from date until paid; that the motion to retax the costs of this proceeding be sustained; that .5919 per cent., or $201.85, thereof be paid by Woodward county; that .2885 per cent., or $101.75, be paid by Ellis county; that .0409 per cent., or $16.10, be paid by Woods county; and that .1889 per cent., or $74.50, be paid by Harper county. For all of which let execution issue. All the Justices concur, except DUNN, J., not participating. A citizen of the Creek Nation in possession of lands of said Nation who files thereon before the Commission to the Five Civilized Tribes, under an Act of Congress approved June 28, 1898 (Act June 28, 1898, c. 517, 30 Stat. 495), and dies April 28, 1900, without receiving her certificate of allotment therefor, is seised of no estate of inheritance, and curtesy therein does not attach. tion of the Creek Nation, as provided in sections 6 and 7 of the act last aforesaid. [Ed. Note.-For other cases, see Indians, Dec. Dig. § 18.*] 3. INDIANS (§ 18*)-LANDS - DESCENT AND DISTRIBUTION "HEIR." The surviving noncitizen husband of a citizen of the Creek Nation who dies in possession of her allotment, set apart to her under an act of Congress approved June 28, 1898 (Act June 28, 1898, c. 517. 30 Stat. 495), prior to her certificate of allotment therefor, is entitled, under the laws of descent and distribution of the as such entitled to a "child's part," and to share Creek Nation, an heir to his deceased wife, and and share alike therein with the children of his said wife her surviving whether they take by descent or by purchase. [Ed. Note.-For other cases, see Indians, Dec. Dig. § 18.* For other definitions, see Words and Phrases, vol. 4, pp. 3241-3265; vol. 8, pp. 7677, 7678.] 4. INDIANS (§ 15*)-LANDS-ALIENATION-VA LIDITY. A deed to an undivided interest in the allotment of a citizen of the Creek Nation, set apart to her under an act of Congress approved June 28, 1898 (Act June 28, 1898, c. 517, 30 Stat. 495), who died in possession thereof prior to an March 1, 1901, c. 676, 31 Stat. 861), made, exact of Congress approved March 1, 1901 (Act ecuted, and delivered by heirs of said allottee before the expiration of five years from the ratification of the agreement with the Creek Nation contained in said act of March 1, 1901, and prior to an act of Congress approved April 26. 1906 (Act April 26, 1906, c. 1876, 34 Stat. 145), is void. [Ed. Note. For other cases, see Indians, Dec. Dig. § 15.*] 5. INDIANS (§ 15*)—LANDS—ALIENATION—VA LIDITY. A deed to an undivided interest in the allotment of a citizen of the Creek Nation, set apart to her under an act of Congress, approved June 28. 1898 (Act June 28, 1898. c. 517, 30 Stat. 495), and who died in possession thereof prior to an act of Congress approved March 1, 1901 (Act March 1, 1901, c. 676, 31 Stat. 861), made, executed and delivered by heirs of said allottee after the expiration of five years from the ratification of the agreement with the Creek Nation contained in said act of March 1, 1901, and after an act of Congress approved April 26. 1906 (Act April 26, 1906, c. 1876, 34 Stat. 145) is valid. [Ed. Note.-For other cases, see Indians, Dec. Dig. § 15.*] (Additional Syllabus by Editorial Staff.) 6. INDIANS ($ 18*)-LANDS - DESCENT AND DISTRIBUTION-"FINAL PARTICIPATION." In Laws of Muskogee Nation 1880, p. 60, 1, providing that all noncitizens, being married to citizens of this nation, shall enjoy all the privileges enjoyed by other citizens, except participation in annuities and "final participation" in the lands, it was not intended to exclude such a person from taking a child's part in the allotment of a deceased wife, but was intended to 2. INDIANS ($ 18*) - LANDS - DESCENT AND exclude him from the right to receive an allotDISTRIBUTION. [Ed. Note.-For other cases, see Indians, Dec. Dig. § 18.*] The allotment of a citizen of the Creek Nation set apart to her under an act of Congress approved June 28, 1898 (Act June 28, 1898, c. 517, 30 Stat. 495) who dies in possession thereof prior to an act of Congress approved March 1. 1901 (Act March 1, 1901, c. 676, 31 Stat. 861), without receiving her certificate of allotment therefor, is distributable to her heirs under patent therefor to them subsequently issued according to the laws of descent and distribu ment for himself. [Ed. Note.-For other cases, see Indians, Dec. Dig. § 18.*] Error from the United States Court for the Western District of the Indian Territory, at Muskogee; William R. Lawrence, Judge. Action by Judson C. Fast against John W. Sanders, individually and as guardian of Elizabeth Sanders, and others. From the For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Serles & Rep'r Indexes Rehearing denied February 9, 1911. judgment, John W. Sanders brings error. Reversed and remanded. On August 26, 1907, Judson C. Fast, one of the defendants in error, plaintiff below, sued John W. Sanders, plaintiff in error, one of defendants below, individually and as guardian of Elizabeth Sanders, Maude Sanders, and Millard Sanders, minors, and Warren Mooney, defendants in error, defendants below, in the United States court for the Indian Territory, Western District at Muskogee, in ejectment, for an undivided one-third interest in "the east half of the northwest quarter and lots 1 and 2 in section 19, township 15 north of range 19, east," containing 159.56 acres, and stated his cause of action, in substance, to be that on April 28, 1900, one Sarah E. Sanders, a citizen of the Creek Nation of less than full blood and duly enrolled as such, died intestate in said nation leaving her surviving as her only heirs at law her adult children, Edward B. Porter and Ben E. Porter, by a former husband, and Edna Sanders, an adult child, and Elizabeth Sanders, Maude Sanders, and Millard Sanders, minor children by said John W. Sanders, all of whom are citizens by blood of the Creek Nation and duly enrolled as such, except said John W. Sanders, her noncitizen husband; that after her death and after the act of Congress approved March 1, 1901, and after the ratification on May 25, 1901, by the Creek Tribe of the agreement therein contained, the Commission to the Five Civilized Tribes, to wit: On April 21, 1905, caused patents to issue distributing and allotting said land to which said Sarah E. Sarders would have been entitled, if living, to her heirs, one of which said patents conveyed that part of said land described as the "east half of northwest quarter and lot 1 of section 19, township 15 north of range 19 east," the other, that part of said land described as "lot 2 in said section 19, township 15 north of range 19 east," which were on April 21, 1905, duly signed by P. Porter, principal chief of the Creek Nation for and on behalf of said nation, and on May 23, 1905, duly approved by the Secretary of the Interior, and subsequently duly delivered to said heirs; that under and by virtue of the terms of said agreement it was provided that the lands to which such citizen would be entitled, if living, should descend to the heirs of such citizens according to the laws of descent and distribution of the Creek Nation, and be allotted and distributed to them accordingly; that the laws of the Nation referred to in said treaty were as follows (setting them out); that they were all the laws of inheritance of said nation in force at the time of descent cast and thereunder, on descent cast by said Sarah E. Sanders, each of her said children thereby became the owner of an individed one-sixth interest in her said allotment; that on May 29, 1906, said Ben Porter, made, executed, and delivered and on May 31, 1906, said Edward B. Porter made, executed, and delivered their respective quitclaim deeds to plaintiff conveying to him their respective interests in said land, which said deeds were duly recorded; that said Edna Sanders conveyed her interest therein to defendant Warren Mooney; that defendant John W. Sanders for himself and as guardian for said minor children and as agent for said Mooney has ousted plaintiff from possession thereof and refuses to recognize his interest therein, and prays judgment for an undivided one-third interest therein and for general relief. On January 19, 1907, John W. Sanders filed separate answer, in effect admitting the allegations of the complaint, except that the complaint sets forth all the Creek law of descent and distribution at the time of descent cast and that the said children of Sarah E. Sanders were her sole heirs and were entitled each to a one-sixth interest in her said allotment but alleged the fact to be that said law was as by him therein set forth; that under said law he at that time, as her noncitizen husband was and is entitled to an heir's part of one-seventh of her said allotment for which to her a certificate had issued, by the Commission to the Five Civilized Tribes, on her application, made while in possession of said lands prior to her death, dated May 24, 1901; that prior to the execution and delivery to plaintiff of the deed from Edward B. Porter and Ben E. Porter set forth in the complaint, they, to wit, on December 15, 1904, sold and by their deed conveyed to him all their interest in said land by virtue of which he says he is its owner; that, prior to the conveyance of the interest of said Edna Sanders Mooney to Warren Mooney as set forth in said complaint, she had conveyed all her said interest to him by quitclaim deed; that he is in possession of said land by virtue of the title thus acquired and his right of curtesy and as guardian for the said Elizabeth Sanders, Maude Sanders, and Millard Sanders, and asks that plaintiff take nothing by his suit. On January 29, 1907, to this answer there was general demurrer filed which was by the court sustained, and, defendant electing dered in favor of plaintiff and against deto stand on his answer, judgment was renfendant for the land sued for, whereupon de fendant took a writ of error to the Court of Appeals for the Indian Territory and the same is now before us for review as successor to that court. De Roos Bailey, for plaintiff in error. Irwin Donovan and Edward C. Griesel, for defendant in error Judson C. Fast. TURNER, J. (after stating the facts as above). [1] By Judson C. Fast, hereafter called plaintiff, it is urged, in substance, that as the pleadings disclose that Sarah E. Sanders was a duly enrolled citizen of the Creek Nation of less than full blood; that on Sep |