State v. Board of Education of Oklahoma City , 186 Okla. 665 ( 1940 )

The majority opinion is susceptible of the construction that it not only holds that good faith expenditure is a defense to an action for recovery of money illegally spent by public officers, but also holds that a claim of good faith may be asserted by defendants in connection with a general demurrer to the petition. This would seem quite close to the holding that the petition must affirmatively allege bad faith or evil motive, else, no matter how illegal the expenditure was, the petition could not state a case and there would be no recovery of illegally spent money. This court has many times construed the applicable statutes. Many such decisions expressly hold or definitely imply to the contrary. See Moreland v. State,175 Okla. 38, 51 P.2d 945; State ex rel. Morrison v. City of Muskogee, 70 Okla. 19, 172 P. 796; State ex rel. Wood v. Kimbrell, 152 Okla. 239, 5 P.2d 366; State ex rel. Awtrey v. Randolph, 139 Okla. 254, 281 P. 956; State v. Cole,178 Okla. 567, 63 P.2d 730; Dorsett v. State, 144 Okla. 33, 289 P. 298; McGuire v. Skelton, 36 Okla. 500, 129 P. 739; State ex rel. Shillings v. Oklahoma City, 67 Okla. 18, 168 P. 227, and Dowler v. State, 179 Okla. 532, 66 P.2d 1081.

If good faith is to be so controlling as a defense, it seems at least that a defendant relying thereon should be required to submit his good faith to test, by answer pleading it, so that it might be controverted. It is generally so in cases where good faith relieves from liability.

The majority opinion gives far too much effect to one part only of the Reid Case (Protest of Reid, 160 Okla. 3,15 P.2d 995), and therefore misconstrues it to be a holding which is foreign to the case as a whole, in my judgment. That case is more nearly authority for holding the expenditure here involved to be definitely an illegal and unauthorized expenditure, and therefore recoverable under the statutes and decisions. That case as a whole would hardly lead a school board to conclude that it could deposit such public funds in a separate bank account and withdraw and expend therefrom the $100,000 without appropriation, and in excess of the aggregate annual appropriations, as was done in the instant case, that is, as was alleged in the petition, and admitted by demurrer for the purpose of demurrer.

I therefore must dissent.

Mr. Chief Justice BAYLESS concurs in these views.