STATE ex rel. PRUNTY v. DOWLER

STATE ex rel. PRUNTY v. DOWLER
1937 OK 378
69 P.2d 68
180 Okla. 265
Case Number: 22775
Decided: 06/08/1937
Supreme Court of Oklahoma

State ex rel. Prunty
v.
Dowler

Syllabus by the Court.

¶0 MUNICIPAL COURPORATIONS--Taxpayer's Action to Recover Penalty Against One not Municipal Officer--Burden on Plaintiff to Show Party Receiving Money Had Notice That Contract Was Illegal
In an action for the penalty imposed by section 5964, O.S.1931 (62 Okl.St.Ann. § 372), against one not an officer of the municipality, the burden is on the plaintiff to show that the party receiving the money had notice that the contract under which it was paid was unlawful, fraudulent, or void.

Appeal from District Court, Kay County; Claude Duval, Judge.

Action instituted under sections 5964 and 5965, Okl.St.1931 (62 Okl.St.Ann. §§ 372, 373), by the State of Oklahoma, on the relation of F. O. Prunty, a taxpayer, against H. M. Dowler, the Blackwell Zinc Company, Incorporated, and others, to recover a penalty. From a judgment in favor of the defendant zinc company, plaintiff appeals. Affirmed.

Sargent & Ross, of Newkirk, and Simons, McKnight, Simons, Mitchell & McKnight, of Enid, for plaintiff in error.
Felix Duvall, of Ponca City, for defendants in error.

WELCH, Justice.

¶1 This is a companion case to H. M. Dowler et al. v. State of Oklahoma ex rel. F. O. Prunty, No. 22617, recently decided by the court, 66 P. (2d) 1081. The parties were all in the same action in the trial court. The plaintiff there recovered judgment against the three city commissioners and H. M. Dowler, and those defendants appealed in cause No. 22617. In the trial court judgment was rendered in favor of the defendant Blackwell Zinc Company, Incorporated, and from that judgment the plaintiff prosecutes this appeal.

¶2 Reference is hereby made to the opinion of this court in the Dowler Case No. 22617, as to complete statement of facts. The plaintiff contends that while Dowler was the record owner of the lands conveyed to the city, that he was the agent of the defendant Blackwell Zinc Company, Incorporated, and that recovery should be had also against said corporation defendant.

¶3 There was no evidence whatever that Dowler had knowledge that the claims were allowed and the warrants issued on the general fund in excess of the appropriations made and approved, and without any appropriation. This is a penalty action, and in keeping with the rules of law applicable thereto, we held that in the absence of such proof the defendant Dowler was not liable, and that view is controlling here. Therefore, it is immaterial here whether Dowler was the agent of the Blackwell Zinc Company. No contention is made that this company itself had any notice or knowledge of the matters held to render the expenditure of the funds illegal and unauthorized in the Dowler Case, supra. It follows that the action of the trial court in instructing a verdict for Blackwell Zinc Company, Incorporated, was in all respects free from error and correct.

¶4 The judgment of the trial court is affirmed.