State Ex Rel. Payne v. School Dist. No. 97

DAVISON, J. This cause is presented on appeal from the district court of Blaine county, Okla. It was instituted on May 18, 1933, in the name of the state of Oklahoma by Thomas J. Payne, as a resident taxpayer of school district No. 97 of Blaine county, against members and ex-members of the school board of that district, to recover the sum of $9,547.36, representing double the amount of school district funds alleged to have been illegally expended by the board. The school district was also named as a party defendant. Numerous individual items of alleged illegal expenditures of money were incorporated in the petition. Under the rules of law which govern the disposition of this appeal, a detailed review in this opinion of the various items or the evidence offered on the trial of the case in connection therewith is unwarranted. It may be observed in passing that the items include the alleged payment of teachers’ salaries in order to maintain the district school for its scheduled term after the appropriation for that purpose had been exhausted and the asserted payment of claims for supplies, etc., used in connection with the maintenance of the school without the previous filing of claims in proper form. The basis of plaintiff’s action is sections 6831, 6832, O. S. 1931 (70 Okla. St. Ann. § § 132, 133). Section 6831, supra, describes the basis and extent of liability of school district officers, and section 6832, supra, prescribes the conditions upon which a resident taxpayer may institute and maintain an action to enforce the liability. The latter section contemplates that before the action may be instituted, a written demand, signed by ten resident taxpayers, must be made upon the proper officers of the school district and the officers must have failed, refused, or neglected to “institute or diligently prosecute” an appropriate action. The defendants, among other defenses, asserted that the foregoing statutory prerequisites are essential and in important respects nonexistent in this case. They assert that they were not guilty of refusal, failure, or neglect to act because the written demand served upon them was, in effect, withdrawn before there had been any refusal on their part to act and before sufficient time had elapsed for them to be charged with failure or neglect to act. On the trial of this cause this theory of *178 defense, among others, was submitted to the jury, which by its verdict found for the defendants. The facts upon which this defense is based are as follows: On May 2, 1933, a written demand, the legal sufficiency of which may be assumed, signed by eleven resident taxpayers, including the relator herein, was served on the defendant school district officers. May 2, 1933, was on Tuesday. On the following Saturday a‘“round table” discussion of the matters comprehended by the demand was had between the school board members and some six or seven of the people who signed the demand. On the following Monday, May 8th, three of the signers presented to the board an instrument by which they formally withdrew from the demand presented, thus leaving only eight undisturbed signatures on the demand — two less than the minimum requirement of the statute (sec. 6832, supra). During the five days (four days excluding Sunday) which intervened between the presentation of the demand and the withdrawal by three signers thereof, there was no refusal on the part of the defendant officers to act on the demand, and they assert that the lapse of time was insufficient to authorize a conclusion that they were guilty of failure or neglect in the matter. They take the position that they were entitled under the law to a reasonable time in which to act, and a portion of the signers having withdrawn before the expiration of that time, they were not thereafter charged with the duty of acting under the provisions of section 6832, supra. The plaintiff, on the other hand, takes the position that withdrawal from the demand after it had been filed was impossible as a matter of law and ineffective for any purpose. The trial court adopted the view of the defendants, but concluded the question of whether a reasonable time for acting had expired before the withdrawal was one of fact for the jury. An appropriate instruction upon the point was accordingly given, and by its general verdict (which is deemed to comprehend a special finding upon this issue favorable to the defendants) the jury found that a reasonable time for action had not expired prior to the withdrawal by the three signers. The decision on this question of fact is not open for successful challenge on this appeal. The question of law to be decided is whether one who has signed a written demand as contemplated by section 6832, supra, may, before any action has been taken thereon and before a reasonable time for action has expired, withdraw from the demand. This precise question does not seem to have been previously decided by this court; however, analogous problems have confronted us and our solution thereof guides our reasoning in the determination of this controversy. The written demand contemplated by section 6832, supra, is in the nature of a petition, which is a method frequently prescribed by statute for bringing about some action or decision on the part of a public official. Section 1, ch. 186, Session Laws 1919 (sec. 6915, O. S. 1931, 70 Okla. St. Ann. § 251), contemplates a special meeting of voters to pass upon the question of consolidation of adjacent school districts, and requires the calling of such meeting “upon petition of one-half of the legal voters.” No authority is given by the statute to withdraw a signature from such a petition. But this court, in School District No. 24 of Custer Co. v. Renick, Co. Supt., 83 Okla. 158, 201 P. 241, held that a voter could withdraw his name from such petition at any time before it had been acted upon. In paragraph 2 of the syllabus, we said: “A qualified voter signing such petition has the absolute right to withdraw his name from such petition at any time before the petition is acted upon and the election called by the county superintendent. Upon such name being withdrawn from the petition, it cannot thereafter be counted as one of the signers of said petition to make up the requisite number of one-half of the legal voters residing in such district.” (Emphasis ours.) To the same effect, see Mills et al. v. Lynch, County Supt., et al., 121 Okla. 101, 247 P. 981. Upon similar considerations, *179 we held in the case of In re Initiative Petition No. 2, City of Chandler, 170 Okla. 507, 41 P. 2d 101, that a citizen could withdraw from an initiative petition requesting the revocation of a charter. In the body of the opinion in that case, we said: “But this court is committed to the doctrine, in the absence of statute, which permits withdrawal after filing a petition and before action thereon is taken. “To absolutely prohibit a citizen from withdrawing his name from a petition voluntarily signed by him, at any time after it has been filed, but before action is had either on the sufficiency of the petition or on the relief sought by the peti tion, would be a harsh and unreasonable rule. * * *” (Emphasis ours.) The plaintiff contends that the foregoing case, and the principles therein recognized and adopted, should not apply to the case at bar upon consideration of State ex rel. Sheel v. Ingram et al., 164 Okla. 244, 23 P. 2d 648, and Baugh v. Little et al., 140 Okla. 206, 282 P. 459. Neither of those cases dealt with the right of one who had joined in a demand to withdraw therefrom, or the effect of such withdrawal after the same has been made. They are not in point on this question. We are of the opinion that the demand contemplated by section 6832, is in the nature of a petition. It is calculated to procure the institution of an action in behalf of the school district by its officers, or, in the alternative, if such officers refuse, fail, or neglect to act, an action by a resident taxpayer which may be of a penal nature. Obviously, if there is no refusal, the officers cannot be charged with neglect or failure if they do not act immediately, especially where, as in this case, numerous transactions are involved and some time for investigation would be required in order to ascertain the merits of the demand. We are of the opinion, as was the trial court, that they were entitled to a reasonable time. The plaintiff is of the opinion that the demand required is merely to challenge the attention of the officers to the irregularities complained of, and that thereafter the liability and penalties imposed by the statute are absolute, subject to being defeated only by the institution of the action. If this had been the legislative intent, there was no rational reason for requiring the concurrent action of ten resident taxpayers. This provision of the statute is indicative of a restrictive intent on the part of the Legislature. It argues strongly that if the contemplated action is not meritorious enough to command the support of at least ten interested persons, the penalties and liabilities imposed by the statute are not available. It is quite possible that individuals may, as in this case, after having joined in a demand, decide, upon more deliberate reflection, that the action was ill advised. If so, it is difficult to perceive any rational reason why such withdrawal should not be permitted; that is, of course, if the withdrawal is prior to action on the demand and prior to the expiration of a reasonable time in which to act. That such privilege should be accorded, harmonizes with the apparent legislative intent and with the principles previously enunciated by this court. Since this constitutes a separate and complete defense upon which the jury found for the defendants, the judgment of the trial court will be affirmed. BAYLESS, C. J., and RILEY, GIBSON, HURST, and DANNER, JJ., concur. WELCH, V. C. J., and OSBORN and CORN, JJ., dissent.