Leeper v. State ex rel. Waters
| Citation | 42 P.2d 821,171 Okla. 235,1935 OK 315 |
| Decision Date | 26 March 1935 |
| Docket Number | Case Number: 23557 |
| Parties | LEEPER v. STATE ex rel. WATERS |
| Court | Oklahoma Supreme Court |
¶0 1. COUNTIES - Exclusive Authority of Board of County Commissioners to Commence Suit Against Delinquent Officers.
The sole and exclusive power to commence a suit against a delinquent officer under section 7686, O. S. 1931, is vested in the board of county commissioners.
2. SAME - Taxpayer Held not Proper Party Plaintiff.
In an action instituted by the board of county commissioners against a delinquent county official and the surety upon his official bond for illegal expenditure of county funds, a taxpayer of the county is neither a necessary nor proper party plaintiff in such action.
Appeal from District Court, Adair County; W.A. Woodruff, Judge.
Action by State of Oklahoma on relation of C. W. Waters et al. against Amy B. Walls and the Federal Surety Company. From judgment striking names of certain parties plaintiff from petition, said parties plaintiff appeal. Affirmed.
Joseph R. Brown, James B. McDonough, A.F. Smith, and F.H. Moore, for plaintiffs in error.
Pete Helton and W.A. Scofield, for defendants in error.
¶1 This action was commenced in the district court of Adair county by the state of Oklahoma on the relation of C.W. Waters, J.T. Patterson, and Ray Blakemore, being the board of county commissioners of Adair county, and also on the relation of John H. Leeper, W. Southworth, C.E. Anderson, W.L. Phipps, W.B. Hubbard, and A.E. Stephens, and also on the relation of the Kansas City Southern Railway Company, as plaintiffs, against Amy B. Walls and the Federal Surety Company, a corporation, defendants. It is alleged in plaintiffs' petition that the relators John H. Leeper, W. Southworth, C.E. Anderson, W.L. Phipps, W.H. Hubbard, and A.E. Stephens are citizens, residents, and taxpayers of Adair county, and that the relator the Kansas City Southern Railway Company is a railroad corporation organized under the laws of the state of Missouri, and that it owns and operates a line of railroad in said county. The defendant Amy B. Walls was the county treasurer of Adair county, and the defendant the Federal Surety Company was the surety upon her official bond.
¶2 The plaintiffs sought by their action to recover from the defendants the sum of $5,302.01, which sum, it was alleged, had been illegally expended by the defendant county treasurer, in that she had invested moneys of the sinking fund of Adair county in certain illegal and void judgements, which judgments aggregated the amount sued for by plaintiffs. Plaintiffs further alleged that after the pretended investments were made by the county treasurer, the judgments purchased by her were adjudged void by the Court of Tax Review of the state of Oklahoma.
¶3 The defendants filed their motion to strike the names of John H. Leeper, W. Southworth, C.E. Anderson, W.L. Phipps, W.B. Hubbard, A.E. Stephens, and the Kansas City Southern Railway Company as parties plaintiff, and assigned various reasons therefor, which, however, present but one question, i. e., whether or not plaintiffs in error were properly joined as parties plaintiff. The motion was sustained by the trial court, and from that order the plaintiffs in error have appealed. This is an action against the county treasurer and the surety upon her official bond, and alleges a breach of official duty by the treasurer amounting to a breach of a condition of her official bond. Such an action has been held by this court not to be one for the penalties prescribed in section 5965, O. S. 1931, wherein it is provided that upon the failure or refusal of a county officer to file and diligently prosecute an action against a delinquent official, the taxpayer, upon certain named conditions, may prosecute an action against the delinquent official for the recovery of double the amount of public funds illegally or fraudulently disbursed by the delinquent official, one-half of any recovery thereunder going to the taxpayer who institutes the action. National Surety Co. v. State, for Use and Benefit of Board of Commissioners of Comanche County, et al., 111 Okla. 180, 239 P. 257; National Surety Co. v. State ex rel. Richards et al., 111 Okla. 185, 239 P. 262; State, for Use of Board of Commissioners of Osage County, v. McCurdy et al., 115 Okla. 111, 241 P. 816. Section 7363, O. S. 1931, provides that the corporate powers of a county shall be exercised by Its board of county commissioners.
¶4 Section 7364 of said laws provides that all suits by or against the county shall be in the name of the board of county commissioners.
¶5 Concerning suits against delinquent officers, section 7686, O. S. 1931, 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 said 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. * * *"
¶6 The quoted statute was construed in the case of Kingfisher County v. Graham, 40 Okla. 571-579, 139 P. 1149, wherein it was said:
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