Coulson v. Territory of Oklahoma, Ex Rel. Dunn ( 1899 )

Opinion of the court by

Tarsney, J.:

Had this cause been instituted in the court below in good faith, and upon the petition of the real party in interest in the relief sought, all the material facts and circumstances presented by the record in the ease would be precisely like those involved in a number of cases decided' by this court, and upon the authority of' those cases the judgment appealed from in this case would be reversed and the cause dismissed. The record in this case, however, presents facts and circumstances, in addition to those presented in those cases, which we cannot pass unnoticed.’ This action was commenced in the name of the Territory of Oklahoma, on the relation of Jesse J. Dunn, county attorney of Woods county, to restrain and enjoin George H. Coulson, county clerk of said county, from spreading upon the tax rolls of that county the increased valuation of property therein, as ordered by the territorial board of equalization, in equalizing assessments between the various counties for the year 1897.

The Statutes of Oklahoma 1893, sec. 1705, provides that “it shall be the duty of the county attorney of the several counties to appear in the district court of their respective counties and prosecute and defend on behalf of the Territory or his county, all actions or proceedings, civil or criminal, in which the Territory or county is interested as a party.” Every action must be prosecuted in the name of the real party in interest. (Code Civ. Proc. Sec 26.)

The first of these statutory provisions authorizes a county attorney to appear in the district court of his county to institute and prosecute, on behalf of the Territory, actions in which the Territory is interested in obtaining the relief sought by the action. The second provision authorizes an action to be brought only in the name of the party really interested in the benefits of the action, if successful. It does not contemplate that an action may be brought in the name of the party whose real interest is adverse to the granting of the relief prayed for in the action.' This action was instituted in the name of the Territory, as plaintiff, to enjoin the county clerk from performing a ministerial act and ministerial duty which he owed to the Territory, which this court, in original proceedings by mandamus, at the suit of the Territory, has required him to perform. The territorial board of equalization, in equalizing assessments between the several counties of the Territory for the year 1897, increased the valuation, of all the property returned for taxation in Woods county for that year, 11 per cent., and certified the fact to the county clerk, as required by law. It was the duty of the county clerk to spread such increase upon the tax roils of the county. This court has repeatedly held that the action of the board of equalization was in accordance with law, and in all things valid. The Territory was interested in having its levies for territorial taxation levied upon property according to its proper valuation. It was therefore directly interested in having this increase spread upon the tax rolls of Woods county, and in having its taxes levied thereon. Its every interest was against the county clerk being prevented from doing that which the injunction in this cause sought to prevent him from doing. It was a real party in interest to the defense of this action, and not in its prosecution. The attempt to use it as a party plaintiff, to prevent it from obtaining the revenues to which it was justly entitled under the law, was a fraud upon the court, and a violation by the county attorney of the duties which he owed to the court as its officer, and of the fidelity which. an attorney owes to his client and the interests which it is his duty to protect. The court below should have sustained the demurrer to the petition, if for no other reason, on this ground alone: That, on the facts stated, the Territory, named as plaintiff, was not the real party in interest in the prosecution of the action; that its interests were directly opposed to its prosecution; and that the attorney prosecuting the same was violating obligations imposed upon him by law and his oath of office as an attorney. It should have been apparent to the trial court that the whole proceeding was collusive between the county attorney and the nominal defendant. Courts, if their integrity is to be maintained, cannot permit such conduct as this record discloses to be consummated nor to go unrebuked. The judgment is reversed, and the cause dismissed; the costs to be taxed to the relator.

McAtee, J., having presided in the court below, not sitting; all the other Justices concurring.