State v. City of Muskogee

• Decision Date: 30 April 1918
• Docket Number: 8884.
• Citation: 172 P. 796,70 Okla. 19,1918 OK 266
• Parties: STATE ex rel. MORRISON v. CITY OF MUSKOGEE et al.
• Court: Oklahoma Supreme Court

172 P. 796

70 Okla. 19, 1918 OK 266

STATE ex rel. MORRISON v. CITY OF MUSKOGEE et al.

No. 8884.

Supreme Court of Oklahoma

April 30, 1918

Syllabus by the Court.

The nature of a pleading is determined, not by the title given it by the pleader, but by the subject-matter thereof, and a pleading in the form of a motion to dismiss, and so styled setting up defensive matters, cannot be considered as a motion, but may be treated as an answer.

The officers of a city are without lawful authority to pay out money of the city for the purpose of causing a railway company to establish or retain its shops in such city, and if this is done the city officials taking part in the transaction and the railway company receiving the money are liable to the city for double the amount thereof. In case the city, after written demand of at least ten resident taxpayers refuses, fails or neglects to bring suit for the recovery of the same, any resident taxpayer may maintain an action in the name of the state in which the city is made a party defendant against such officers and the railway company for the penalty in twice the amount of the money so unlawfully appropriated one-half of the recovery to go to the plaintiff as a reward the remaining one-half to be recovered for the use and benefit of the city.

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.

The sureties on the official bonds of city officials against whom a suit has been lodged by a resident taxpayer to recover the penalty prescribed by sections 6777 and 6778, R. L. 1910, are not liable on such bonds to plaintiff in such suit, and are not proper parties thereto.

Commissioners' Opinion, Division No. 1, Error from Superior Court, Muskogee County; H. C. Thurman, Judge.

Action by State of Oklahoma, on the relation of G. W. R. Morrison, against the City of Muskogee and others. Judgment for defendants, and plaintiff appeals. Reversed and remanded, with directions.

Chas. Bagg, of Muskogee, for plaintiff in error.

O. L. Rider, of Vinita, for defendant in error Southern Surety Co.

STEWART C.

The action in this case was brought by a resident taxpayer of the city of Muskogee under sections 6777 and 6778, which read as follows:

6777: "Every officer of any county, township, city town, or school district, who shall order or direct the payment of any money or transfer of any property belonging to such county, township, city, town or school district in settlement of any claim known to such officers to be fraudulent or void, or in pursuance of any unauthorized, unlawful or fraudulent contract or agreement made or attempted to be made, for any such county, township, city, town or school district by any officer thereof, and every person, having notice of the facts, with whom such unauthorized, unlawful or fraudulent contract shall have been made, or to whom, or for whose benefit such money shall be paid or such transfer of property shall be made, shall be jointly and severally liable in damages to all innocent persons in any manner injured thereby, and shall be furthermore jointly and severally liable to the county, township, city, town or school district affected, for double the amount of all such sums of money so paid, and double the value of property so transferred, as a penalty, to be recovered at the suit of the proper officers of such county, township, city, town or school district or, of any resident taxpayer thereof, as hereinafter provided."

6778: "Upon the refusal, failure or neglect of the proper officers of any county, township, city, town or school district, after written demand made upon them by ten resident taxpayers of such county, township, city, town or school district, to institute or diligently prosecute proper proceedings at law or in equity for the recovery of any money or property belonging to such county, township, city, town or school district, paid out or transferred by any officer thereof in pursuance of any unauthorized, unlawful, fraudulent or void contract, made, or attempted to be made, by any of its officers for any such county, township, city, town or school district, or for the penalty provided in the preceding section, any resident taxpayer of such county, township, city, town or school district affected by such payment or transfer, after serving the notice aforesaid and after giving security for cost, may, in the name of the state of Oklahoma as plaintiff, institute and maintain any proper action which the proper officers of the county, township, city, town or school district might institute and maintain for the recovery of such property, or for said penalty; and such municipality shall in such event be made defendant, and one-half the amount of money and one-half the value of the property recovered in any action

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