Dorsett v. State

• Decision Date: 17 June 1930
• Docket Number: 19451.
• Citation: 289 P. 298,144 Okla. 33,1930 OK 301
• Parties: DORSETT et al. v. STATE et al.
• Court: Oklahoma Supreme Court

289 P. 298

144 Okla. 33, 1930 OK 301

DORSETT et al. v. STATE et al.

No. 19451.

Supreme Court of Oklahoma

June 17, 1930

Syllabus by the Court.

Section 8591, C. O. S., prescribes that a written demand signed by ten resident taxpayers shall be served upon the proper officers requiring them to institute or diligently prosecute proper proceedings to recover public moneys illegally expended as a prerequisite to their filing suit against such officers for the recovery of the moneys illegally expended and penalty. The notice required is not defective by reason of its containing, in addition to the demand that the sums expended be recovered, a demand that the penalty provided be collected. C. O. S. §§ 8590, 8591.

Section 8591, C. O. S., does not prescribe the manner of serving the written "demand" or "notice" so the same may be served by one of the demanding resident taxpayers, by his agent or attorney.

Where a written notice is served upon the individual county commissioners pursuant to section 8591, C. O. S., demanding a recovery of county moneys illegally expended the said officers are entitled to a reasonable time within which to comply with the demand before suit may be filed against them. But, where the commissioners refuse to act, the resident taxpayers may thereupon file suit against the commissioners to recover the penalty provided, without further delay. C. O S. §§ 8590, 8591.

Section 6429, C. O. S., provides for the transportation of the members of the board of county commissioners who are parties to this suit, by providing a mileage allowance of ten cents per mile for each mile actually and necessarily traveled by them in viewing and inspecting road and bridge work in lieu of all traveling and other personal expenses in connection with said road service. This provision for the transportation of the members of the board of county commissioners is exclusive, and said board of commissioners is without authority to purchase individual automobiles for their own use in supervising and directing road and bridge construction and maintenance.

Every officer who shall order or direct the payment of any money belonging to any county in settlement of any claim made in pursuance of any unauthorized, unlawful, or fraudulent contract is liable to the county for double the amount of all such sums of money so paid as a penalty to be recovered in a suit brought by the proper officers of such county or any resident taxpayer thereof. C. O. S. §§ 8590, 8591.

Courts are for the purpose of interpreting and enforcing laws and policies provided by the Legislature, which is the lawmaking or policy making body of our state government, and it is not a function of a court to criticize or nullify a legislative policy unless it comes within one of the inhibitions of the Constitution.

Commissioners' Opinion, Division No. 2.

Appeal from District Court, Jefferson County; E. L. Richardson Judge.

Suit by the State, on the relation of Henry Price and another resident taxpayers of Jefferson County, against Tom Dorsett and others, members of the Board of County Commissioners of Jefferson County, to recover damages for the illegal expenditure of county moneys under Comp. St. 1921, §§ 8590 and 8591. Judgment for plaintiffs, and defendants appeal.

Affirmed.

Arthur J. Marmaduke, Co. Atty., of Duncan, Brown & Stater, of Oklahoma City, and Harper & Dillard and Bridges & Ivy, all of Waurika, for plaintiffs in error.

Sullivan & Rice, of Duncan, and Green & Pruet, of Waurika, for defendants in error.

Robert J. Bell, Monk & McSherry, and Counts & Counts, all of McAlester, amici curiæ.

EAGLETON C.

In the fall of 1925 Tom Dorsett, D. A. Cathey, and A. L. Dunkin constituted the board of county commissioners of Jefferson county, Okl. They bought for the county a Ford coupé automobile for each member of the board, which automobiles were to be used by said members in carrying on the road work in said county. Thereafter Henry Price and L. A. Stallings, resident taxpayers of Jefferson county, caused to be served upon the individual members of the board of county commissioners written demand, designated taxpayers' notice, directing their attention to the illegality of the purchases, and demanding that the county money expended therefor, together with a like sum as penalty, be recovered, and further advising them that, in case they failed to institute action and diligently prosecute it for recovery thereof, they as taxpayers would file suit against them, the members of the board, for such recovery. These notices were separately made and served on the members of the board, the board itself, and the county attorney of Jefferson county. Each notice was signed by ten resident taxpayers of Jefferson county. The members of the board of county commissioners and the board of county commissioners failed, neglected, and refused to comply with the demand. Henry Price and L. A. Stallings filed three separate suits against the board of county commissioners and its individual members in the name of the state of Oklahoma, on relation of themselves, praying for judgment in each case for $680.95, the sum expended for each automobile, and like sum of $680.95 as penalty. These suits were thereafter consolidated and tried together to the court. The court rendered judgment against the individual members of the board of county commissioners, to wit, Tom Dorsett, D. A. Cathey, and A. L. Dunkin, and each of them, for the sum of $4,086. From this judgment the defendants appeal. The parties will be referred to as they appeared in the trial court.

The defendants first complain of the notice or demand which was served on them, and assert that same was insufficient to give the court jurisdiction of this cause. The suit was filed pursuant to the following sections of C. O. S. 1921:

"8590. Liability of Public Officers. 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 officers 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.

8591. Taxpayer May Institute Suit on Failure of Officers. Upon the refusal, failure or neglect of the proper officers of any county, township, city, town or school district, after written demand made upon them by ten resident taxpayers of such county, township, city, town or school district, to institute or diligently prosecute proper proceedings at law or in equity for the recovery of any money or property belonging to such county, township, city, town or school district, paid out or transferred by any officer thereof in pursuance of any unauthorized, unlawful, fraudulent or void contract, made, or attempted to be made, by any of its officers for any such county, township, city, town or school district, or for the penalty provided in the preceding section, any resident taxpayer of such county, township, city, town or school district affected by such payment or transfer, after serving the notice aforesaid and after giving security for cost, may, in the name of the State of Oklahoma as plaintiff, institute and maintain any proper action which the proper officers of the county, township, city, town or school district might institute and maintain for the recovery of such property, or for said penalty; and such municipality shall in such event be made defendant, and one-half the amount of money and one-half the value of the property recovered in any action maintained at the expense of a resident taxpayer under this section, shall be paid to such resident taxpayer as a reward."

They assert that, this being in the nature of a penal suit founded upon a penal statute, the statute should be strictly construed, and that the notice did not comply with the "demand" required by section 8591, in that the defendants were required thereby not only to recover the sums expended for the automobiles, but in addition thereto the penalty provided by statute. The statute provides that the parties liable "shall be furthermore jointly and severally liable to the county * * * for double the amount of all such sums of money so paid * * * as a penalty to be recovered at the suit of the proper officers of such county * * * or of any resident taxpayer thereof as hereinafter provided." The statute seems to be clear that these public officers were empowered to recover not only the sums illegally expended, but as well the penalty therefor. The notice in that respect is consonant with the statute. And, further, all the things by statute required to be in the demand were therein contained, and, should it contain surplusage, the notice or demand is not by reason thereof destroyed and invalidated. The public officers were given the opportunity to cause the misspent county funds to be...