Estus v. State
| Decision Date | 13 September 1921 |
| Docket Number | 12076. |
| Citation | 200 P. 1002,83 Okla. 181,1921 OK 316 |
| Parties | ESTUS, CO. CLERK, ET AL. v. STATE EX REL. DINWIDDIE, CO. ATTY. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Oct. 13, 1921.
Syllabus by the Court.
When a claim against the county has been duly presented and allowed by the board of county commissioners, and a warrant drawn for the payment of the same, the attesting of the warrant by the clerk is a purely ministerial act, as to which there is no discretion, and if there has been a sufficient appropriation to the funds, upon which the warrant is drawn, it is the duty of the clerk to attest the warrant, without regard to his opinion as to the lawfulness of the same.
The acts of the county clerk and county treasurer in attesting and registering warrants being ministerial, the funds being available for this specific purpose, it is the duty of the clerk to attest said warrants, and the treasurer to register the same.
The penalty upon delinquent taxes is not a part of the tax, but the Legislature has exercised its sovereign power, and imposed this penalty as an additional charge or penalty for delinquency upon the part of the taxpayers, in order to hasten the payment of the taxes due. The penalty is not created by a levy of the tax, and, the fund being created by the Legislature, it follows that the Legislature has a right to dispose of such funds to the same effect as other fines and penalties and as other funds of the state.
Additional Syllabus by Editorial Staff.
In a proceeding to compel the county clerk and treasurer to attest and register warrants on funds appropriated for such purpose the act being ministerial, an objection that the act under which the claim was incurred, and the warrant drawn was in violation of Const. art. 10, §§ 19, 29, is not available to such officers.
Appeal from District Court, Logan County; C. C. Smith, Judge.
Application of the State of Oklahoma, on the relation of A. V. Dinwiddie County Attorney, for a writ of mandamus to compel R. A Estus, County Clerk, and Frank Bond, County Treasurer, to attest and register bonds. Judgment for plaintiff, and the defendants appeal. Judgment, in so far as the writ of mandamus demands that the clerk attest, and the treasurer register, the warrants, affirmed.
C. G. Horner, of Guthrie, for plaintiffs in error.
A. V. Dinwiddie, of Guthrie, for defendant in error.
This action was commenced in the district court of Logan county, on relation of the state of Oklahoma, by A. V. Dinwiddie, county attorney, for a writ of mandamus to compel R. A. Estus, the county clerk of said county, to attest certain warrants, and Frank Bond, the county treasurer, to register the same. The petition alleged that the county commissioners of Logan county in September, 1910, made an order appropriating $15,000 of the sinking fund derived from penalties on taxes and forfeitures, or as much thereof as might be necessary to remodel and repair the county jail as provided by chapter 77, Session Laws 1919, and thereafter entered into contracts for the construction of said improvements. No protest was ever filed against making said appropriation. After the work was completed, claims were filed with the county commissioners, and were approved by them, and warrants were drawn for the payment of said claims; but Estus, as county clerk, refuses to attest said warrants, and Frank Bond, county treasurer, refuses to register said warrants.
An alternative writ of mandamus was issued, and the defendants filed their answer, and for a defense pleaded: First, denying generally the allegations of the petition; second, that the petition did not state a cause of action; third, that the defendants refused to attest said warrants and register the same, for the reason that the acts of the county commissioners in letting said contract was contrary to law and without legal force, and that the acts referred to were in violation of article 10, § 19, of the Constitution; fourth, that the actions are in violation of article 10, § 29, of the Constitution; fifth, that the acts are unlawful, and attempt to take public money raised for one purpose and use it for another; sixth, that said acts are unlawful, in attempting to transfer money from one fund to another; seventh, that said acts are in violation of section 8, c. 226, of the Session Laws of 1917.
As a fourth defense they allege that they are officers and under bond, and, believing the acts attempted are contrary to law, have declined to perform the same. The case was submitted to the court upon an agreed statement of facts. The court rendered judgment in favor of the plaintiff and against the defendants, requiring the county clerk to attest said warrants and the county treasurer to register the same. From said judgment, the defendants have appealed.
For reversal it is contended that the act of the Legislature authorizing the appropriation of this money was unconstitutional. It is conceded the county commissioners proceeded in accordance with chapter 77, Session Laws of 1919,...
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