I concede that there must be strict compliance with the requirements of the statute to authorize the institution of a suit by a taxpayer under the authority granted by the provisions of sections 5964-5965, O. S. 1931, 62 Okla. St. Ann. §§ 372-373. See Randolph v. State ex rel. Awtrey,169 Okla. 440, 37 P.2d 648. The conditions imposed by said statutes are not only clear and explicit, but have been referred to in a number of the decisions of this court. In the first place such taxpayer must cause a written demand to be served upon the proper officers, and if said officers refuse, fail, or neglect to institute or diligently prosecute proper proceedings for the recovery of the money or property, a taxpayer is authorized to proceed to institute and maintain any proper action which the officers might have instituted and maintained for the recovery of such property or money.
It may be conceded that upon the hearing of the motion above referred to, the board of county commissioners established the fact that they had instituted a proper action for the recovery of money herein involved and the penalty, but I cannot conceive that the law intended to place the burden upon any judicial officer of determining, at the incipiency of an action, the degree of diligence with which it would be prosecuted. The law does not contemplate a half-hearted prosecution of such an action (State ex rel. Sheel v. Ingram, 164 Okla. 244,23 P.2d 648), and authorities therein cited. In said case we pointed out that the burden would be upon the relator to prove that the officers instituting a suit had failed to prosecute the same with diligence before he would be entitled to recover in his action. I do not agree with the contention of the plaintiff in error that said language means that a jury must pass upon the question of whether or not there has been diligent prosecution by the officers. The issue, when presented, goes not to the cause of action, but to the procedural right of relator to institute and maintain the same for the benefit of the municipality. I concede that the pendency of a suit by the proper officers is a defensive matter which could be properly raised by a motion to stay the proceedings. But I do not concede that relator's action should have been dismissed upon a showing that an action had been filed by the proper officers of the county. The trial court could not determine, nor can this court determine, whether or not that action will be prosecuted with due diligence. If the prosecution of that case should be neglected, or improperly terminated, the surety company, chargeable by contract with answering for the malfeasance of the county treasurer, might escape its contractual obligation, for it has already been eliminated from the relator's action by the sustaining of the motion to dismiss relator's first cause of action.
It is thus clear to me that the majority opinion in this case results in the opening of an avenue whereby the wholesome and salutary purposes of sections 5964-5965, supra, may be defeated.
I therefore respectfully dissent.