The original opinion in this action, filed March 3, 1925, is now before this court upon a second petition for rehearing. What we say herein supplements the said opinion, and modifies and changes the same, in so far as it is inconsistent with the said opinion.
The petition filed by the plaintiff in this *Page 273 action prayed in the alternative. The alternative was, in event of failure to recover a money judgment on the warrant, that the building erected by the plaintiff for the benefit of the school district and used for a long number of years by said district be adjudged to be the property of the plaintiff and ordered returned to him upon his demand.
Upon reviewing the record and the opinion filed March 3, 1925, herein, we see no cause for changing the views as expressed in said opinion, to the extent plaintiff cannot recover the judgment prayed against the school district; but said opinion, in so far as it denies the alternative prayer of the petition, is erroneous. It must be noted that this transaction occurred prior to the admission of Oklahoma into the Union as a state. The provisions of section 26, art. 10, of the Constitution of the state of Oklahoma and the statutes of the state governing the fiscal system of school districts do not apply to such transactions. The inhibition existing against the contract in question was found in the Organic Act and section 4 thereof, and it fixes a limit of indebtedness at 4 per cent. of the taxable property of the district. While this inhibition operates to nullify the pretended contract on which recovery is sought in the instant case, it is materially different from the inhibitions of the law of the state governing municipalities since statehood.
Under the law of the state, there is not only the inhibition contained in section 26, art. 10, of the Constitution, but, in addition to that, the statute by fair intendment and purpose only permits one cause of action in event a contract in excess of the estimate made and approved for a particular purpose is sought to be enforced, and that is a suit against the officials incurring the obligation. (See section 8638, C. O. S. 1921. In addition to said section giving the cause of action against the officials contracting the indebtedness, section 8639, C. O. S. 1921, makes such officers guilty of a crime. These provisions did not exist at the time the contract in the instant case was executed, and the building in question erected. We think that the rights of the parties are governed by the law as it existed in the territory and not by the law of the state, and that under the inhibition above referred to, fixing the debt limit of the school district at not exceeding 4 per cent. of the assessed valuation of the property, there was nothing in the law or the objections urged here by the district which expressly prohibited or prohibited by clear implication the courts from granting relief which would do equity between the parties. The plaintiff has a right in support of his alternative prayer to invoke the doctrine laid down by the Supreme Court of the United States in the case of Chapman v. County of Douglas, 107 U.S. 348, 27 L. Ed. 378, and the case of Lee v. Board of County Commissioners of Monroe county, 114 Fed. 744, Thompson v. Elton, 109 Wis. 589, 85 N.W. 425, Salt Creek Township v. King Iron Bridge Mrg. Co. 51 Kan, 520, 33 P. 303, and other cases to the same import.
The judgment of the trial court is therefore affirmed, in so far as it holds that the plaintiff cannot maintain his action for a money judgment against the school district in question, but the judgment of the trial court is reversed as to that part denying his prayer for a return of the property.
NICHOLSON, C. J., and HARRISON, MASON, LESTER, HUNT, and RILEY, JJ., concur.