State v. Myers

• Decision Date: 10 July 1928
• Docket Number: Case Number: 19018
• Citation: 270 P. 37,132 Okla. 212,1928 OK 461
• Parties: STATE v. MYERS et al.
• Court: Oklahoma Supreme Court

1928 OK 461

270 P. 37

132 Okla. 212

STATE v. MYERS et al.

Case Number: 19018

Supreme Court of Oklahoma

Decided: July 10, 1928

Syllabus

¶0 Counties--Ouster Proceedings--Joint Accusation Against All Members of Board of County Commissioners Proper.

Each member of the board of county commissioners has duties that are in common with the other members thereof, and it is permissible to file a joint accusation against the entire membership in an ouster proceeding, where it is alleged that each and every member thereof participated in the willful wrong-doing; it is the alleged wrong-doing that is the gist of the action, not the office.

Error from District Court, Kingfisher County; Hal Johnson, Assigned Judge.

Action by the State against J. C. Myers and others. Judgment for defendants, and the State brings error. Reversed.

Edwin Dabney, Atty. Gen., J. H. Lawson, Asst. Atty. Gen., and R. F. Shutler, for plaintiff in error.

H. C. Brownlee and E. M. Bradley, for defendants in error.

LESTER, J.

¶1 The grand jury of Kingfisher county, Okla., filed certain accusations against the three county commissioners of that county. The accusations were divided into seven different counts and each of said counts, save and except count No. 7, charged joint and common wrong-doing upon the part of the entire membership constituting said board. Each of the three defendants constituting said board filed certain objections against said accusations, contending in said objections that there was a misjoinder of parties defendant. The court sustained the contentions of the defendants in this respect and dismissed said accusations and rendered judgment in favor of the defendants. From this judgment the state has appealed to this court.

¶2 Upon examination of the authorities we see no valid or logical reason why county commissioners may not be jointly accused in acting together and committing malfeasance in office. The duties of each commissioner are common to the entire board. The jurisdiction and territorial extent of their authority are similar in every respect; therefore, if there is active participation by each member of the board with the other two members in committing a willful malfeasance in office, why may not a joint accusation lie? It is the wrong-doing that constitutes the action, not the office.

¶3 In the case of Eberstadt et al. v. State ex rel. Armistead, 92 Tex. 94, 45 S.W. 1007, the Court of Civil Appeals for the 5th Supreme Judicial District of Texas, certified to the Supreme Court of that state the question as to whether several county commissioners might be proceeded against jointly in a removal action, when such accusation charged joint misconduct of said commissioners. The Supreme Court answered the question in the affirmative by use of the following language:

"We answer the first question in the affirmative. The statement shows that all of the acts charged against the defendants were such as could have been and were performed by each and all of the defendants, and in fact none of the acts could have been accomplished without the concurrence of the three defendants who constituted a majority of the court. High. Extr. Rem., section 704; People v. Demill, 15 Mich. 161; Rex v. Foster, 1 Burrows, 573; Rex v. Warlow, 2 Maule & S. 75. The same evidence and every part of the proceeding would apply to each and all of the defendants alike. They held offices of the same grade, and, together with the county judge and another commissioner, constituted the court in which the acts were performed for which they were arraigned. The

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