State for Use of Bd. of Com'rs of Pontotoc County ex rel. Braly v. Ford
| Decision Date | 16 September 1941 |
| Docket Number | 30003. |
| Parties | STATE for Use of BOARD OF COUNTY COM'RS OF PONTOTOC COUNTY ex rel. BRALY v. FORD et al. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Under sections 5964, 5965, O.S.1931, 62 Okl.St.Ann. §§ 372, 373, a taxpayer's right to institute and maintain an action on behalf of the county to recover misappropriated funds does not accrue until the proper officers refuse, fail or neglect to institute and diligently prosecute an action for the same purpose, and a taxpayer's suit commenced prior to such refusal, failure or neglect on the part of the officers is premature and may be abated on proper plea.
Appeal from District Court, Pontotoc County; Tom P. Pace, Judge.
Action by the State of Oklahoma for the use of the Board of County Commissioners of Pontotoc County, State of Oklahoma, on the relation of Mack M. Braly, a resident taxpayer of Pontotoc County, Oklahoma, against Tommy F. Ford and others to recover sinking fund money allegedly expended in an unlawful manner for certain securities. From a judgment for the defendants plaintiff appeals.
Affirmed.
Claude V. Thompson, of Ada, for plaintiff in error.
Carloss Wadlington, Co. Atty., and J. W. Dean, Asst. Co. Atty., both of Ada, for defendant Board of County Com'rs of Pontotoc County.
This is a taxpayer's action instituted pursuant to sections 5964 5965, O.S.1931, 62 Okl.St.Ann. §§ 372, 373 , against a former county treasurer of Pontotoc county and his surety, and certain other parties to recover sinking fund money allegedly expended in an unlawful manner for certain securities.
The petition contained two counts, the first, against the treasurer and his surety to recover the full amount of the money expended, the second, against the treasurer and others for whose benefit the expenditure was made.
Section 5964, supra, makes public officers personally liable for the illegal expenditure of money entrusted to their care as alleged in the present case, and this court has held that their sureties may be joined with them in an action to recover the money instituted by an informing taxpayer pursuant to section 5965. See State ex rel. Sheel v. Ingram, 164 Okl. 244, 23 P.2d 648, and cases there cited. The latter section provides that upon the refusal, failure or neglect of the governing officials of the city, county or other governmental subdivision therein named, as the case may be, after written demand of a certain number of resident taxpayers, to institute or diligently prosecute an action for the recovery of the alleged misappropriated money, any resident taxpayer of the political subdivision affected after service of the demand aforesaid, and after giving security for costs, may institute and maintain in the name of the state as plaintiff any proper action which the proper officers might institute and maintain for the recovery of the money. And one-half of any recovery resulting from such action prosecuted at the expense of the taxpayer goes to the taxpayer as a reward.
The defendant board of county commissioners moved to dismiss, abate or stay both causes of action, alleging as to the first that on written demand of taxpayers as required by section 5965, supra, served on the board September 7, 1938, the board on the same day authorized the county attorney to institute suit against the treasurer and his surety to recover the alleged loss; that the county attorney immediately ordered an audit of the treasurer's records, and that during the progress of said audit, October 5, 1938, the plaintiff commenced this action without due opportunity to the board and the county attorney to prepare the case; that on February 16, 1939, and before the present case was at issue, the county attorney did commence a proper action against the treasurer and his surety to recover the loss aforesaid, and that the present action was premature.
At the hearing the trial court declined, on the taxpayer's request, to determine whether the above motion should be treated as a motion or an answer. Thereupon plaintiff taxpayer interposed his response to the motion, and at the hearing objected to the introduction of evidence in support of the allegations contained in the motion on the ground that the facts so alleged were matters of defense and questions to be determined by a jury. This objection was overruled as was further demand for jury trial.
The court proceeded to hear the evidence, and sustained the motion as to the first cause of action, and overruled it as to the second.
Plaintiff appeals from that portion of the order sustaining motion to dismiss the first cause of action, asserting that the court erred in denying his request for a jury.
The allegations contained in the motions, says plaintiff, relate wholly to matters of defense to be pleaded by way of answer and to be determined on trial on the merits, and cannot be heard as a preliminary question of jurisdiction of the parties, the subject matter, or power of the court to grant the relief sought; that the action is one for the recovery of money, entitling him to a jury trial of all the questions of fact. § 350, O.S.1931, 12 Okl.St.Ann. § 556.
The board of county commissioners takes the position that it was incumbent on the plaintiff to show his authority to maintain the action after having commenced the same, and that the want of due diligence on the part of the board in prosecuting a proper action after statutory demand was a condition precedent to such authority, and that the question was subject to determination by the court as in abatement.
Plaintiff in support of his above argument relies mainly on State ex rel. Morrison v. City of Muskogee, 70 Okl. 19, 172 P. 796; State ex rel. Sheel v. Ingram, 164 Okl. 244, 23 P.2d 648. In the Morrison case the informing taxpayer, after demand as required by section 5965, above, commenced an action for the recovery of money alleged to have been illegally expended by the city officials. The governing board of the city subsequently brought suit on the same cause of action, and thereupon moved to dismiss the taxpayer's suit. This court held that the taxpayer plaintiff in such case has a substantial interest in the cause of action, and, in effect, that in order to divest him of that interest and defeat his cause of action the city would be compelled to plead and prove by way of defense on the merits that it had instituted its suit and prosecuted the same with diligence as contemplated by section 5965, above. In construing the sections in question, which were sections 6777, 6778, R.L.1910, and sections 8590, 8591, C.O.S.1921, the court held as follows:
"When a city refuses, fails, or neglects to bring suit when money has been unlawfully paid out or property unlawfully transferred by city officials, after written demand by ten or more resident taxpayers that such suit be brought, and thereafter an action is begun by a resident taxpayer to recover the penalty prescribed by sections 6777 and 6778, R.L.1910, the resident taxpayer bringing the suit has a substantial interest in the cause of action, which is not affected by a suit subsequently brought by the city."
But the last clause of the quoted syllabus can hardly stand in the face of the language employed in the opinion wherein the court clearly intimates that a subsequent suit filed by the proper officers of the city, if prosecuted diligently, would defeat the taxpayer's action. Such a suit instituted and prosecuted diligently would undoubtedly defeat the taxpayer's action.
In State ex rel. Sheel v. Ingram, supra, it was held on authority of the Morrison case that diligence on the part of the proper officials in prosecuting the action after the statutory demand is a matter of defense against the taxpayer's action.
Cases of this character are for the recovery of money and are therefore triable to a jury as a matter of right on the part of the litigants. § 350, supra. If diligence on the part of the officers in prosecuting their suit must be pleaded as a defense against the taxpayer's action, and may not be pleaded in abatement, the question would be for the jury under proper instructions.
But the board's contention that the motion or plea in abatement was the proper procedure in this case is based on sound reasoning and is not without supporting authority. It is to be remembered that actions to recover for the default of public officers are actually for the benefit of the county or municipality suffering the loss. The county here had the exclusive right through its commissioners to institute and maintain this action in its own behalf (Leeper v. State ex rel. Waters, 171 Okl. 235, 42 P.2d 821), unless the board has refused, failed or neglected to institute the suit and to prosecute the same with diligence. On failure of the board in this regard the informing taxpayer may institute a suit as provided by the statute and thereby acquire a substantial interest in the subject matter of the litigation.
But, in view of the plain provisions of the statute, we cannot escape the conclusion that failure of diligence on the part of the board to institute or to prosecute a proper action is a condition precedent to the taxpayer's right to institute a suit. There is always the general presumption that public officers have performed, or will perform, their duties. Wedgwood v. Boyd, 174 Okl. 531, 51 P.2d 299. Before it is made to appear that they have not been delinquent in this regard there is no occasion for the taxpayer's suit. Until such showing is made, the suit is premature and, if premature, it should be...
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