State ex rel. Mitchell v. City of Shawnee

• Decision Date: 27 March 1934
• Docket Number: Case Number: 22351
• Citation: 167 Okla. 582,31 P.2d 552,1934 OK 203
• Parties: STATE ex rel. MITCHELL v. CITY OF SHAWNEE et al.
• Court: Oklahoma Supreme Court

1934 OK 203

31 P.2d 552

167 Okla. 582

STATE ex rel. MITCHELL v. CITY OF SHAWNEE et al.

Case Number: 22351

Supreme Court of Oklahoma

Decided: March 27, 1934

Syllabus

¶0 1. Abatement and Revival--Statutes Construed.

Section 823, C. O. S. 1921, is remedial and procedural and does not prevent the abatement of a right of action or cause of action unless such an action survives by virtue of section 822, C. O. S. 1921, relating to the survival of actions.

2. Municipal Corporations--Taxpayer's Suit to Recover Penalty--Right of Action Personal and Nonassignable.

An action to recover a penalty pursuant to sections 5964 and 5965, O. S. 1931 (8590 and 8591, C. O. S. 1921), is statutory. Such an action is an action ex delicto, sounding in tort, and is clearly personal in its nature and nonassignable.

3. Same--Statutes Penal and Strictly Construed from Standpoint of Wrongdoer.

Said sections 5964 and 5965, supra, are penal statutes, and are to be strictly construed from the standpoint of the alleged wrongdoer.

4. Same--Taxpayer's Action Held to Abate as to Plaintiff Upon His Death.

Record examined: held, that upon the death of plaintiff, the action instituted by him for the recovery of a penalty under penal statutes abated as to said plaintiff.

Appeal from District Court, Pottawatomie County; W. G. Long, Assigned Judge.

Action by the State on relation of S. B. Mitchell against the City of Shawnee and others. Demurrers to first amended petition sustained; motions to strike second amended petition and to dismiss action sustained, and plaintiff appeals. Objections to order of revivor, upon death of plaintiff in error, sustained. Remanded, with directions.

A. M. Baldwin and Welty, Harrison & La Fon, for plaintiff in error.

Arrington & Evans, Fred M. Carter, Edward H. Chandler, William O'Beall, Stanard & Carey, F. H. Reily, Goode, Dierker & Goode, Thompson, Mitchell, Thompson & Young, Joe T. Dickerson, Burford, Miley, Hoffman & Burford, W. P. Z. German, and Blakeney & Ambrister, for defendants in error.

MCNEILL, J.

¶1 This action is in the nature of a common-law qui tam action. It was instituted by S. B. Mitchell, an informer, to recover a penalty amounting to $ 97,500 for the city of Shawnee as well as for himself by virtue of sections 5964 and 5965, O. S. 1931 (sections 8590 and 8591, C. O. S. 1921).

¶2 Section 5965, supra, when construed in connection with section 5964, O. S. 1931, provides, in substance, that where money has been paid out or transferred by any officer of a municipal corporation in pursuance of any fraudulent or void contract, and a written demand has been made by ten resident taxpayers of such city to institute or diligently prosecute an action for the recovery of said money, and when such officers fail to comply with such demand, then any resident taxpayer of the municipality may bring an action to recover as a penalty double the amount of money so paid out or transferred.

¶3 Plaintiff bases the action upon an alleged collusive agreement made by the officers and agents of the city of Shawnee in the settlement of a suit which had been brought by said city in the district court of Pottawatomie county against a number of major oil companies for the pollution of the water supply of said city. That action was filed December 21, 1929. The city of Shawnee sought to recover actual damages in the sum of $ 1,000,000, and $ 500,000 as exemplary damages.

¶4 Plaintiff in his second amended petition alleges, in substance, that the officers and agents of the city of Shawnee settled said suit with said major oil companies for the sum of $ 100,000; and in furtherance of a fraudulent and collusive agreement caused a judgment in said action instituted by said city to be entered for the sum of $ 2,500, when said judgment should have been for the sum of $ 100,000, for the purpose of transferring to the Shawnee Water Association, one of the defendants herein, the sum of $ 97,500; that all of said defendants agreed that said $ 97,500 should be transferred to said defendant Shawnee Water Association; and that this constituted a fraud practiced upon the court and upon the resident taxpayers of said city, whereby the city of Shawnee and the taxpayers were defrauded in the sum of $ 97,500.

¶5 The second amended petition appears, in substance, except for variations of phraseology, to be the same as the original and first amended petitions. Plaintiff, however, does not attach to or make reference in his second amended petition to any of the exhibits attached to and made a part of his former petitions.

¶6 The several demurrers of the defendants to the first amended petition were sustained, and thereafter the defendants joined in a motion to strike the second amended petition. This motion is as follows:

"1. That the cause of action set forth in the second amended petition is identical with the claim set forth in the first amended petition and to which the court sustained a demurrer.

"2. Because the facts set forth in plaintiff's second amended petition are identical with those set forth in plaintiff's first amended petition except that the plaintiff has omitted to refer to and make a part of the second amended petition certain exhibits which were attached to and made a part of the first amended petition and which exhibits constitute and are the basis upon which plaintiff predicates his alleged cause of action, and the court having sustained demurrers of the several defendants to said first amended petition, plaintiff should not now be permitted to further prosecute this action when the exhibits attached to the first amended petition and now on file in this cause show that the plaintiff has no cause of action.

"3. Because there are no facts alleged or issues of law or fact tendered in the second amended petition which were not in the first amended petition heretofore held by the court to be insufficient to constitute a cause of action in favor of plaintiff.

"4. Because there is not a material statement or allegation contained in the second amended petition which was not in the first amended petition, and it is therefore apparent that plaintiff's second amended petition is frivolous, without merit and not filed in good faith.

"5. Because it clearly appears that by his failure to attach said exhibits to the second amended petition, or make the same a part thereof by reference, plaintiff is attempting to avoid the legal force and effect of the exhibits attached to the first amended petition, now a part of the record in this cause.

"6. Because the second amended petition is substantially a repetition of the first amended petition which the court has heretofore held to be insufficient to constitute a cause of action in favor of plaintiff."

¶7 After a hearing, the trial court sustained said motion to strike. Plaintiff excepted to said ruling, refused to plead further, and elected to stand upon his second amended petition; whereupon, on motion of the defendants, the suit of plaintiff was dismissed. From this order of dismissal, the appeal has been prosecuted.

¶8 Defendants urge that the second amended petition avoids the force and effect of the exhibits theretofore attached to the first amended petition, which included the agreement entered into on February 6, 1930, between the Shawnee Water Association and said oil companies whereby said oil companies agreed to loan to the Shawnee Water Association $ 25,000 in cash and pipe of the approximate value of $ 70,000 to $ 75,000, which money was to be repaid and the pipe returned or the value thereof as provided by the terms of said agreement.

¶9 Plaintiff died while the action was pending in this court. A motion to revive in the name of the administrator of the estate of said plaintiff, deceased, was filed in this court, and over the objection of defendants, an order of revivor was made without prejudice to reconsideration of this question on the merits.

¶10 As we view the questions herein presented, we hold that this action abated at the death of the plaintiff.

¶11 The action instituted is to recover a statutory penalty. See State ex rel. Morrison v. City of Muskogee, 70 Okla. 19, 172 P. 796; State ex rel. Schilling v. Oklahoma City, 67 Okla. 18, 168 P. 227; Dorsett et al. v. State, 144 Okla. 33, 289 P. 298; State ex rel. Gooch v. Drumright et al., 88 Okla. 244, 212 P. 991; Territory ex rel. v. Woolsey, 35 Okla. 545, 130 P. 934; State ex rel. Sheel v. Ingram, 164 Okla. 244, 23 P.2d 648.

¶12 The right of action at bar is purely statutory. The recovery which is sought is not to compensate for a wrong to plaintiff, but by reason of the fact that there has been an alleged contemptuous and intentional neglect, refusal, failure, or disregard on the part of the defendants for a breach of the law. See Mitchell v. Hotchkiss, 48 Conn. 9; Diversey v. Smith, 103 Ill. 378; Willis v. Byrne, Adm'r, 106 Ala. 425, 17 So. 332.

¶13 In the case of Sullivan v. Associated Billposters and Distributors of the United States and Canada, 6 F.2d 1000, 42 A.L.R. 503, 509, it is said:

"It was a rule of the common law that most causes of action based on contract survived while most of those founded on tort abated. But the rule was subject to various exceptions. The real test, so far as tort actions were concerned, seems to have been whether the injury on which the cause of action was based affected property rights, or affected the person alone. In the former case the cause of action survived, while in the latter it abated. See 21 Enc. Pl. & Pr. 31. The common-law rule, as laid down in 3 Bl. Com. 302, is as follows:

"'* * * The death of either party is at once an abatement of the suit. And in actions merely personal, arising ex delicto (from wrong done), for wrongs actually done or committed by the defendant, as trespass, battery, and slander, the rule is that actio personalis moritur cum persona (a personal action dies with the person); and it shall never be revived either by or against the executors or other

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