Choctaw County Excise Board v. St. Louis-San Francisco Railway Co. , 1969 Okla. LEXIS 413 ( 1969 )

BERRY, Vice Chief Justice

(dissenting).

It is my opinion errors disclosed upon the face of the record are fatal to the conclusion stated. The petitions in the present appeals failed to make allegations which satisfied the mandatory requirements of 62 O.S.1961 § 362(2), (3) (b). Excise Board, etc. v. Kansas City Southern Ry. Co., 173 Okl. 238, 47 P.2d 580. And, the judgments involved reflect total failure to comply with requirements of 62 O.S.1961, § 310.1.

It is my view the" rule of prior decisions requires municipal officers to file proper pleadings and make good faith defense against claims made and approved for a purpose which exceed the tax levied for such purpose during the fiscal year. The presumption in favor of validity of judgments does not prevail where the record discloses there has not been a bona fide trial of the cause and no bona fide defense made. Lowden v. Stephens County Excise Board, 191 Okl. 5, 126 P.2d 1023; In re Gypsy Oil Co., 141 Okl. 291, 285 P. 67. Public officers can accomplish by non-action that which formerly was illegal because of ineffective or improper action. Hereafter it will be necessary to resort to mandamus, to compel municipal officers to perform their duty, or be concluded from attacking judgments such as are involved here. I dissent.

I am authorized to state that BLACKBIRD and McINERNEY, JJ., concur in the views herein expressed.