Kingfisher Cnty. v. Graham

• Decision Date: 31 March 1914
• Docket Number: Case Number: 4110
• Citation: 139 P. 1149,1914 OK 168,40 Okla. 571
• Parties: KINGFISHER COUNTY v. GRAHAM.
• Court: Oklahoma Supreme Court

1914 OK 168

139 P. 1149

40 Okla. 571

KINGFISHER COUNTY v. GRAHAM.

Case Number: 4110

Supreme Court of Oklahoma

Decided: March 31, 1914

Syllabus

¶0 COUNTY ATTORNEYS--Authority in Actions--Action Against Delinquent Officer--Appeal--Authority of County Commissioners. An action cannot be commenced against a delinquent officer under section 1697, Comp. Laws 1909, except upon the order of the board of county commissioners, and an appeal cannot be taken by the county attorney from a judgment rendered against the county in such case without the consent and against the wishes of the board of county commissioners.

Error from District Court, Kingfisher County; James W. Steen, Judge.

Action by the County of Kingfisher against John M. Graham. Judgment for defendant, and plaintiff brings error. Dismissed.

F. P. Whistler, Co. Atty., R. F. Shutler, and W. B. Blair, for plaintiff in error

F. L. Boynton and Gray & McVay, for defendant in error

LOOFBOURROW, J.

¶1 It appears from the record in this case that the defendant in error, John M. Graham, was, from the 10th day of January, 1903, up to November 16, 1907, judge of the probate court of Kingfisher county, territory of Oklahoma, and from and after the 16th day of November, 1907, up to the 9th day of January, 1911, county judge of Kingfisher county, state of Oklahoma. It further appears that the State Examiner and Inspector examined the records and accounts of said defendant in error as such probate and county judge, and reported to the board of county commissioners of said Kingfisher county, Okla., that the defendant in error had overdrawn and retained certain fees over and above his salary, and in excess of the amount which he was legally entitled to receive. The board of county commissioners of said Kingfisher county, at the request of the defendant in error, consented to and directed the county attorney to bring suit in the district court against the defendant in error to recover said fees, with the understanding that the submission of such question to the district court would secure the opinion of the judge of such court on the merits of the case, and minimize the expense of litigation. The district court sustained a demurrer to the petition of the plaintiff in error, and the plaintiff in error elected to stand on such petition, and judgment was, on March 16, 1912, rendered in favor of the defendant in error, to which judgment the plaintiff in error excepted, and was allowed time in which to perfect its appeal to this court. Immediately after such judgment was rendered, the board of county commissioners decided that an appeal from such judgment would be a considerable expense, and without probable beneficial results, and the board declined to permit an appeal from such decision. Thereafter certain persons, styling themselves the Taxpayers' League, employed an attorney to assist the county attorney of Kingfisher county, Okla., and the private attorney prepared and served a case-made and petition in error in the Supreme Court, and the county attorney permitted the use of his name in his official capacity in maintaining said appeal. Said appeal was filed in the Supreme Court on June 20, 1912. On August 7, 1912, the board of county commissioners of Kingfisher county, in regular session, adopted certain resolutions setting forth the facts as herein stated, and further reciting that such appeal was taken without the direction or consent and in violation of the desire of the board, and that bills had been presented against the county not authorized nor contracted for by the board in the prosecution of such appeal, etc., and concluding as follows:

"* * * Therefore be it resolved, that we direct the immediate dismissal, as unauthorized, of the proceedings in error in the name of Kingfisher county against such officers; such cases being: County of Kingfisher v. John M. Graham. County of Kingfisher v. Dennis Downing. County of Kingfisher v. Geo. H. Woodworth. County of Kingfisher v. H. L. Miles. County of Kingfisher v. George L. Bowman. County of Kingfisher v. J. A. Lindsey. Adopted by the board at its regular session August 7, 1912. "[Signed] W. O. CUNNINGHAM, Chairman. "[Attest] GEO. H. WOODWORTH, County Clerk. [Seal.]"

¶2 The adoption of such resolution, and the fact that the board of county commissioners were opposed to appealing these cases, and that the appeals were perfected without the direction or consent and in violation of the desires of the board of county commissioners, is admitted by attorneys for the plaintiff in error; but plaintiff in error says the board of county commissioners later adopted the following resolution:

"Be it resolved by the board of county commissioners, that the county attorney be hereby instructed to proceed with the prosecution of the appeal of the following cases: Kingfisher County v. H. L. Miles. Kingfisher County v. Dennis Downing. Kingfisher County v. J. A. Lindsey. Kingfisher County v. Geo. H. Woodworth. Kingfisher County v. Jno. M. Graham. Kingfisher County v. Geo. L. Bowman-- until said cases are finally determined in the Supreme Court. Dated at Kingfisher, Oklahoma, this 10th day of September, 1913.

"THE BOARD OF COUNTY COMMISSIONERS OF KINGFISHER COUNTY, STATE OF OKLAHOMA.

"By J. S. PATRICK, Chairman.

"Attest: WM. C. NEWER, Clerk. [Seal.]"

¶3 On August 20, 1912, the defendant in error moved to dismiss the appeal, assigning five different reasons why the appeal should be dismissed; but it is only necessary to consider one proposition in the disposition of this case, which is "that the appeal was not authorized by the board, but was taken against its desire by unauthorized persons and attorneys."

¶4 Section 1670, Comp. Laws 1909, provides:

"They [the board of county commissioners] shall have power to institute and prosecute civil actions in the name of the county, for and on behalf of the county."

¶5 Section 1695, Comp. Laws 1909 (section 1645, Rev. Laws 1910), requires all county officers to render their accounts to and settle with the county commissioners, etc.

¶6 Section 1697, Id. (section 1647, Rev. Laws 1910), provides:

"If any person thus chargeable shall neglect or refuse to render true accounts or settle as aforesaid, the county commissioners shall adjust the accounts of such delinquent according to the best information they can obtain, and ascertain the balance due the county, and order suit to be brought in the name of the county therefor; and such delinquent shall not be entitled to any commission, and shall forfeit and pay to the county a penalty of twenty per cent. on the amount of funds due the county."

¶7 As to duties of county attorney, see section 1594, Comp. Laws 1909 (section 1554, Rev. Laws 1910):

"It shall be the duty of the county attorney of the several counties to appear in the district courts of their respective counties and prosecute and defend, on behalf of the state, or his county, all actions or proceedings, civil or criminal, in which the state or county is interested or a party. * * *"

¶8 Section 1596, Id. (section 1556, Rev. Laws 1910), provides:

"The county attorney shall without fee, give opinion and advice to the board of county commissioners and other civil officers, of their respective counties, when requested by such board or officers, upon all matters in which the county is interested, or relating to the duties of such board or officers in which the state or county may have interest."

¶9 It will be observed from the above statutes that the power to institute and prosecute actions in the name of the county is vested in the board of county commissioners, and, in an action against a delinquent officer, section 1697 is a special statute, and specifically provides that suit shall be brought on the order of the board of county commissioners, and necessarily excludes any implied power on the part of any other officer to bring or maintain an action of this character. Sections 1659, 1671, and 1673, Comp. Laws 1909 (sections 1631, 1600, 1602, and 1606, Rev. Laws 1910), outline the general powers and duties of the board of county commissioners.

¶10 In the case of Kerby v. Clay County, 71 Kan. 683, 81 P. 503, and in a similar case, the Supreme Court of the state of Kansas said, in part:

"Assuming, without deciding, that the extra fees paid were unauthorized, the court is of the opinion that the county attorney had no authority to bring and conduct the action without the concurrence or consent of the board of county commissioners. The allowance of fees and claims, as well as the management and control of all the business and financial affairs of a county, are confided to the board of county commissioners. It is the executive branch of the county government, and the representative and guardian of the county as to all its corporate affairs. Among other things, the statute provides: 'The board of county commissioners of each county shall have the power: * * * Second, to examine and settle all accounts of the receipts and expenses of the county, and to examine and settle and allow all accounts chargeable against the county; and when so settled, they may issue county orders therefor, as provided by law. * * * Fifth, to represent the county and have the care of the county property, and the management of the business and concerns of the county, in all cases where no other provision is made by law.' Gen. Stat. 1901, sec. 1621. These powers, so broadly given, repose the responsibility and control of county affairs in the board, and they must be assumed and exercised by that tribunal, unless specifically conferred upon other officers. This authority is nowhere divided with the county attorney. On the other hand, he is made the legal adviser of the board, and is required to give opinions and advice to the board upon its request on all matters in which the county is interested. Gen. Stat. 1901, sec. 1779. A section of the statute invoked as authority for the action of the county attorney reads: 'It shall be the duty

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