State v. Armstrong

• Decision Date: 10 January 1911
• Citation: 117 P. 332,27 Okla. 810,1911 OK 52
• Parties: STATE ex rel. STANDEVEN et al. v. ARMSTRONG et al.
• Court: Oklahoma Supreme Court

117 P. 332

27 Okla. 810, 1911 OK 52

STATE ex rel. STANDEVEN et al. v. ARMSTRONG et al.

Supreme Court of Oklahoma

January 10, 1911

Syllabus by the Court.

Where the object of the petition in an original proceeding in this court is to secure an ancillary injunction to restrain defendants, claiming to be the officers of S. county, newly created out of parts of K. and C. counties by virtue of an election held pursuant to article 17, § 4, of the Constitution and an act approved April 24, 1908 (page 275 Session Laws of Oklahoma 1907-08), providing for the creation of new counties and the election of officers therefor, said county being later proclaimed by the Governor as created and existing, from demanding or receiving from the officers of K county any of the books, records, tax rolls, or transcripts thereof, or any moneys or properties of K. county, claimed by them to be the property of S. county, pending certain quo warranto proceedings against them in the district courts of K. and C. counties to test the validity of the organization of S. county and their election on the grounds of fraud and illegality (specifically set forth). Held that assuming this court to be vested with original jurisdiction to issue the writ in virtue of an act approved April 10, 1908 (Session Laws of Oklahoma 1907-08, p. 280), it appearing from the facts set forth in the petition that the evidence of said organization was fair on its face, and the Governor was without notice of the fraud and illegality charged, at the time of his proclamation, defendants are de facto officers of the de facto county of S., and, as the acts sought to be enjoined are part of their official duties, a demurrer to the petition is sustained.

Action by the State, on the relation of H. L. Standeven, County Attorney of Kiowa County, and others against J. E. Armstrong and others. Dismissed.

H. L Standeven, County Atty. of Kiowa County, and J. A. Fain, County Atty. of Comanche County, for plaintiffs.

E. V. Rakestraw, Giddings & Giddings and Moss, Turner & McInnis, for defendants.

TURNER C.J.

This is an original proceeding commenced in this court September 30, 1910, on behalf of the state of Oklahoma by H. L. Standeven, county attorney, relator, and the board of county commissioners of Kiowa county, against J. E. Armstrong, C. E. Bull, and J. W. Wilcox, claiming to hold the office of county commissioners, and the other defendants claiming to be the remaining officers of Swanson county (said county being newly created out of parts of Kiowa and Comanche counties pursuant to art. 17, § 4, of the Constitution, and chapter 26, art. 1, § 1, Session Laws of Oklahoma 1907-08), to enjoin said officers, their agents and servants, from demanding or receiving from the officers of Kiowa county any of the books, records, tax rolls, or transcript thereof, or any moneys or properties of Kiowa county, claimed by them to be the property of said Swanson county, pending the determination of an original action in quo warranto, brought against them by the state on relation of said Standeven, county attorney of Kiowa county, in the district court for the Seventeenth judicial district of the state in Kiowa county, on September 28, 1910, and pending a similar action brought against them by the state on relation of J. A. Fain, county attorney of Comanche county, in the district court for the Sixteenth judicial district in Comanche county, on September 20, 1910, in which said actions it is alleged, in effect, among other things, that the creation of said county was void for fraud and illegality in the organization thereof (setting forth the same specifically), as was also the election held May 20, 1910, pursuant to the proclamation of the Governor, by virtue of which they claim to hold their respective offices, of all of which the Governor was without notice when, on August 12, 1910, he issued his proclamation proclaiming the creation and existence of the said county of Swanson and named Mountain Park as the county seat thereof.

After the temporary writ had run, defendants appeared and demurred to the petition. In support of our jurisdiction to entertain this proceeding, plaintiffs cite article 2, c. 26, p. 280, Session Laws 1907-08, which reads: "Section 1. Original and exclusive jurisdiction is hereby conferred upon the Supreme Court to hear and determine any action that may be brought for the purpose of equitably dividing and distributing the property assets and liabilities derived through the process of taxation, bonds, warrants or other evidences of indebtedness, of any county formerly existing in the territory of Oklahoma, between such county and any new county or counties created in whole or in part of the territory of such county, and for the purpose of rendering and enforcing complete justice in any such action, the Supreme Court shall have the power to make and render all necessary orders, judgments and decrees, and to issue and enforce all necessary process, mesne and final. Provided, that the Supreme Court shall have exclusive original jurisdiction of all actions involving the custody of, or the right to transcribe, the tax rolls or other records of any such county or counties, and the ownership and distribution of the taxes assessed and collectible therein; and provided further, that, for the purpose of hearing and receiving evidence and reporting findings of law and fact, the Supreme Court may appoint a special master in chancery in such case."

In support of their demurrer, defendants contend, in effect, that they are de facto officers of the de facto county of Swanson, and as such have a vested right to discharge the duties of their respective offices until ousted therefrom, if at all, by said proceedings pending; that the acts sought to be restrained are among those duties (which is not seriously controverted), and for that reason injunction will not lie and this order should be dissolved.

Assuming, but not deciding, that, under the provisions of the act cited, we have original jurisdiction to issue this ancillary writ, the point is well taken. Without stopping to define the duties of the respective defendants, Wilson's Statutes of Oklahoma 1903, § 1436, provides in effect, that every county commissioner who shall violate any provision of law or fail to perform any duty required of him by law shall be guilty of a misdemeanor and, upon conviction, shall be fined not less than $50 nor more than $1,000, or imprisoned in the county jail for a certain time, or both fined and imprisoned.

Article 1, c. 74, p. 653, Session Laws of Oklahoma 1907-08, provides:

"Section 1. That the board of county commissioners of any county or counties, created in whole or in part of any county or counties of the territory of Oklahoma, or to which territory taken from any other county may have been attached, are hereby authorized and empowered to demand and secure the original tax rolls, or a duly authenticated copy of the same, as herein provided, of all the property situated in all new counties formerly a part of the old counties, and to copy or transcribe, or to make contracts to procure copies or transcripts in substantial record books, such as are required for said instruments, the same to be furnished by said counties so transcribing or copying the same, at a rate not to exceed five cents per folio, of the records, and government field notes of any county so divided, or from which territory may have been taken, necessary to complete the records of any such county or territory so affected. ***

"Sec. 2. It is hereby made the duty of any officer or person having possession or control of any record book, paper, tax roll, assessment or any other files or matter of record, or any portion of same so required to be copied or transcribed, as contemplated by this act, to produce and exhibit all records, books, papers, tax rolls, assessments, and any other files or matter of record in his possession, custody, or control, and to permit and facilitate the copying or transcribing of any such records, book, paper, tax roll, assessment, and any other file or matter of record, or other evidence of any record or any portion thereof, when requested by the board of county commissioners or any one authorized by them to make such copies or transcripts."

Section 3 provides, in effect, that any person, having in his possession any of the records authorized to be copied as contemplated by this act, who shall fail, neglect, or refuse, or in any manner hinder or delay the work, after demand shall have been made for permission so to do as provided, or shall destroy, conceal or remove any such record, shall be guilty of a felony.

It was, therefore, the statutory duty of the defendant county commissioners to perform the acts sought to be enjoined; that is, if the defendants were, under the allegations of the petition, de facto officers of a de facto county. Such was Swanson county after the Governor proclaimed its creation and existence on the evidence of its organization before him fair on its face, for the reason that the same then existed as a county organization under color of law.

In Snider Sons' Co. v. Troy, 91 Ala. 224, 8 So. 658, 11 L. R. A. 515, 24 Am. St. Rep. 887, a de facto corporation is said to exist: "*** when, from irregularity or defect in its organization or Constitution, or from some omission to comply with the conditions precedent, a corporation de jure is not created, but there has been a colorable compliance with the requirements of some law under which an association might be lawfully incorporated for the purposes and powers assumed, and a user of the rights claimed to be conferred by law; or, in other words, when there is an organization with color of law and an exercise of corporate rights...