State Ex Rel v. Huston

• Decision Date: 27 July 1910
• Docket Number: Case Number: 1826
• Citation: State Ex Rel v. Huston, 1910 OK 259, 113 P. 190, 27 Okla. 606 (Okla. 1910)
• Parties: STATE ex rel, ATTORNEY GENERAL v. HUSTON, Judge.
• Court: Oklahoma Supreme Court

1910 OK 259

113 P. 190

27 Okla. 606

STATE ex rel,ATTORNEY GENERAL v. HUSTON, Judge.

Case Number: 1826

Supreme Court of Oklahoma

Decided: July 27, 1910

Syllabus

¶0 1. OFFICERS--County Attorneys--Authority to Bring Suit Against State Officers--Misapplication of Public Funds. The county attorney may bring an action properly triable in the district court of his county in the name of the state to enjoin state officers other than the Governor from misapplying public funds or applying them to a use or for a purpose or at a place prohibited by the Constitution or by law.

a. INJUNCTION--Removal of State Offices--Misapplication of Funds. Injunction will lie at the suit of the state brought by the county attorney as an executive law officer to enjoin the executive officers of the state other than the Governor from removing their offices, public records, books and papers from the seat of government and expending the funds of the state for such purpose.

2. OFFICERS--Governor--Jurisdiction to Control Acts. The district courts of this state have no jurisdiction to control the action of the Governor even in ministerial acts.

3. OFFICERS--Inferior State Officers--Control by Courts--Injunction--Removal of Offices--Misapplication of Funds--Prohibition. The district court of Logan county has the power to enjoin said officers, other than the Governor, from using or applying public funds contrary to law or at a place unauthorized by law.

a. It has authority to enjoin such state officers not only from misapplying or disbursing such funds illegally, but also in connection therewith to restrain them from removing their offices and public records, books and papers from the seat of government.

b. The pleadings in the action in the district court of Logan county, which relators seek by this proceeding in prohibition to arrest, alleging that the seat of government is at Guthrie and that, unless enjoined, such state officers will remove their offices, records, etc., to Oklahoma City, which is not the seat of government, contrary to art. 6, sec. 1. of the Constitution, and will disburse unlawfully public funds in making such removal, raise a question for determination that is within the jurisdiction of said court.

c. Such court having jurisdiction of the person of all parties, other than the Governor, and of the subject-matter, its action thereon can be reviewed by this court only by a proceeding in error.

d. The writ of prohibition may not be used for the purpose of a proceeding in error, so as to review the action of the lower court, when such court has jurisdiction of the subject-matter and of the parties, so as to correct an error of such trial court.

e. The duty of the officers of the executive department of this state to keep their offices at the seat of government is mandatory, and involves no question of discretion.

f. The determination of where the seat of government is is a judicial question.

Original Action In Prohibition.

Action by the State ex rel. Attorney General against A. H. Huston, District Judge, and others. Petition granted in part and denied in part.

Charles West and B. F. Burwell, for relator.

Dale, Bierer & Hegler, Burford & Burford and C. G. Hornor, for respondents.

Copies of briefs did not reach the reporter.

WILLIAMS, J.

¶1 The following questions are essential to be determined:

(1) Has the county attorney of Logan county authority to prosecute this action in the district court of Logan county in the name of the state?

(2) Has the district court jurisdiction over the person of the Governor, Secretary of State, State Auditor, Attorney General, State Treasurer, Chief Mine Inspector, Commissioner of Labor, Commissioner of Charities and Corrections, State Superintendent of Public Instruction, State Examiner and Inspector, State Insurance Commissioner, Corporation Commissioners, and members of the State Board of Public Affairs?

(3) Does the amended petition filed in the lower court, under any reasonable theory, state an action over which said court has jurisdiction?

¶2 1. In the Board of Education of the Territory of Oklahoma et al. v. Territory of Oklahoma ex rel. Taylor, Co. Atty., 12 Okla. 286, it is said:

"This action was commenced in the district court of Oklahoma county by W. R. Taylor, as county attorney of Oklahoma county, against the members of the board of education of the territory of Oklahoma, for the purpose of enjoining the members of said board, as such board, from expending any of the public funds of said territory in the construction of a normal school building at the city of Granite, in Greer county, in said territory. One of the members of the board was a resident of Oklahoma county, and the place of meeting of said board was at Edmond, in said county. The members of the board appeared by the Attorney General of the territory, and objected to the jurisdiction of the court, to the authority of the county attorney of Oklahoma county to maintain the action, and to the power to sue the members of the board. These objections being overruled, issues were formed by answer and reply. * * *

"The statutes of Kansas relating to the duties of county attorney and Attorney General, are almost identical with ours, and the Supreme Court of that state has held in a number of cases that the county attorney is the proper officer to prosecute actions of this character. ( Craft v. Jackson, 5 Kan. 518; Bobbett v. State, 10 Kan. 9; Bartlett v. State, 13 Kan. 99; State v. Faulkner, 20 Kan. 541; State v. Marion Co., 21 Kan. 419; Hornaday v. State, 62 P. Rep. 329.)

"We think these authorities applicable to a correct interpretation of our statutes, and that the county attorney of Oklahoma county had the authority to bring and prosecute this action, and this without making the allegations in the petition that the Attorney General and Governor were advising the proceedings which were sought to be remedied by the suit."

¶3 In State v. County of Marion, 21 Kan. 419 (2nd Ed., p. 308), the court, speaking through Chief Justice Horton, with whom concurred Justices Brewer and Valentine, said:

"Before proceeding to the principal inquiry involved in this action, we will dispose of the preliminary objections presented on the part of the defendants to our consideration of the merits of the cause. These are--First, that the state is not the party in interest, and hence that the suit cannot be maintained in its name; and, second, if the suit can be maintained in the name of the state, it cannot be done on the relation of the county attorney. Neither of these objections is tenable. The suit is being prosecuted by the proper officer, and in the name of the proper party plaintiff; and in justification of this conclusion we need only refer to the prior decisions of this court. Craft v. Jackson Co., 5 Kan. 518; Bobbett v. State, 10 Kan. 9; Bartlett v. State, 13 Kan. 99; State v. Faulkner, 20 Kan. 541."

¶4 In Hornaday et al. v. State, 62 Kan. 822, 62 P. 329, in a unanimous opinion, the court being composed of Doster, Chief Justice, Johnson and Smith, Associate Justices, it is said:

"This was a suit brought by the state of Kansas, on the relation of the county attorney of Clay county, against the board of trustees of the asylums for the insane, to enjoin the latter from accepting, on behalf of the state of Kansas, deeds conveying to the state certain lands near the city of Parsons, for the purpose of erecting an asylum for the insane thereon, and from certifying to the State Auditor any vouchers on which warrants might be issued on the State Treasurer to pay the owners of said real estate the price of the same; and, further, to restrain said trustees from making any contract in the name or on behalf of the state of Kansas for the construction of buildings to be used as an insane asylum at or near the city of Parsons. Judgment was entered on the pleadings in the district court in favor of the state, and a perpetual injunction decreed in accordance with the prayer of the petition."

¶5 On page 831 (62 Kan.) it is said:

"The power of a county attorney to institute this action in the court below is denied by plaintiffs in error. The statute defining the duties of that officer is quite comprehensive. (Gen. Stat. 1899, sec. 1714; Gen. Stat. 1897, ch. 89, sec. 2). It is his duty to prosecute or defend, on behalf of the state, all suits, applications, or motions, civil or criminal, arising under the laws of the state, in which the state or his county is a party or interested. In this case jurisdiction was obtained over the persons constituting the board of trustees of the asylums for the insane in Clay county, and the cause then being triable in that forum, the county attorney was authorized to prosecute it."

¶6 In State ex. rel. Roberts, Co. Att'y. v. Lawrence, Co. Treas., 80 Kan. 707, it is said:

"The state may maintain injunction against a public officer to restrain him from a violation of his official duty, although other remedies may be open, and he may have given a sufficient bond. It has an interest in seeing that the will of the Legislature is not disregarded, and need not, as an individual plaintiff must, show grounds of fearing more specific injury."

¶7 In State ex rel. Haskell, Governor, v. Huston, Judge, et al., 21 Okla. 782, 97 P. 982, it is said:

"However, in our judgment, the county attorney of any county, where proper service may be had in such county, has the right to institute such an action in the name of the state, on his relation, as was begun in the Logan county district court in the name of the state, on the relation of the Attorney General, to have the charter of the Prairie Oil & Gas Company canceled, which action on the part of such county attorney would neither be subject to the control of the Governor, nor to be dismissed at his discretion. The statutes heretofore referred to appear to make the Attorney General the legal adviser of the state officers, and the proper person to prosecute and defend actions in the

...