This action was commenced In the district court by the board of education of Oklahoma. City against certain former members of said board, certain employees of the district, including the school treasurers and the sureties on the official bonds of the latter, to recover damages growing out of the alleged unlawful expenditure of funds of the school district.
The various defendants filed separate demurrers, assigning the insufficiency of the petition to state a cause of action, the statute of limitations, and misjoinder of causes of action. The demurrers were sustained on all three grounds assigned. Plaintiff declined the opportunity to file separate actions and elected to stand on the allegations of its petition, whereupon appropriate judgment was entered, and plaintiff appeals.
After sustaining demurrer for misjoinder of causes of action the trial court is not required to rule upon other grounds assigned in the demurrer, but it is within its discretionary powers to rule upon every ground for demurrer set forth therein, and its various rulings may be reviewed by this court. Although we have heretofore held that where demurrer is properly sustained for misjoinder of causes this court need not consider the rulings on those grounds of demurrer going to the merits of the case (Fishencord v. Peterson, 173 Okla. 382,49 P.2d 128), we may, nevertheless, in our discretion fully review all such rulings.
In such case, if the trial court correctly found a misjoinder of causes of action but was wholly in error otherwise, the judgment will be affirmed and the plaintiff's cause will have failed otherwise than on the merits. If the court, in addition to correctly declaring a misjoinder, properly sustained the demurrer to the sufficiency of the petition, affirmance must follow, and plaintiff's cause will have failed upon the merits. This is true where, as in the instant case, plaintiff was given an opportunity to amend and to file separate actions.
With relation to misjoinder of causes of action, each defendant in this case was charged with unlawfully paying out or unlawfully receiving funds belonging to the school district. It is sufficient to say that none was affected by the alleged cause of action against the others. Unless each cause of action affect all the defendants, there is a misjoinder. Bryan v. Sullivan, 55 Okla. 109, 154 P. 1167; Fishencord v. Peterson, supra. The rule is stated in Bryan v. Sullivan, supra, as follows:
"While, under section 4738, Rev. Laws 1910, several causes of action may be joined in one suit, they cannot be so joined, except in actions to enforce mortgages or other liens, unless each cause of action stated affects each of the parties to the suit."
It should here be noted that the petition does not attempt to charge the defendants *Page 402 with conspiracy to defraud the school district.
Considering the petition from the standpoint of the sufficiency of its allegations to state a cause of action against the various defendants, we find that in substance the defendant school board members and the clerk of the board, the school treasurers, and the defendant employees are charged, respectively, with issuing, paying, and receiving warrants drawn against appropriations made by the excise board of Oklahoma county for the payment of the expenses for which said warrants were issued and that said appropriations were held to be unauthorized and void in another action. The liability of the defendant surety companies depends, of course, upon the liability of their principals, the treasurers aforesaid.
The allegations from which we gather the above-stated charge are substantially as follows:
The excise board of Oklahoma county made an appropriation in due form based upon an estimate approved by the voters of the school district for expenses of the health department of the schools during the fiscal year 1931-1932. Included in said appropriation were items of salary for the medical directors, nurses, a dentist, supplies and car service, and items of salary of supervisors and principals attending meeting of the National Education Association. Certain taxpayers, in the manner provided by statute, protested the tax levy for these appropriations as being unauthorized by law. The Court of Tax Review sustained the protest, and its judgment was affirmed by this court. Protest of Chicago, R.I. P. Ry. Co.,164 Okla. 239, 25 P.2d 690. In that case the court said "there must be a distinct legislative authority for every tax levy." and held that no authority existed for levying a tax for the purposes in question. That case was disposed of October 3, 1933.
For the fiscal year 1932-1933 a like appropriation was made and the levy therefor was protested by the same taxpayers. On June 12, 1934, this court, following the last-cited case, held that no authority existed for such levy. Chicago, R.I. P. Ry. Co. v. Excise Board, 168 Okla. 428, 33 P.2d 1081.
Thereafter certain informing taxpayers, proceeding pursuant to sections 6831, 6832, O. S. 1931, 70 Okla. Stat. Ann. §§ 132, 133, made demand upon the plaintiff board that an action be instituted for the recovery of the alleged unauthorized expenditures aforesaid. Thereupon the present action was commenced.
If the foregoing facts and circumstances as disclosed by the petition reveal a cause of action against any of these defendants, the liability must arise from the common law or under section 6831, supra, or it must appear that the provisions of section 12315, O. S. 1931, 68 Okla. Stat. Ann. § 341, have been knowingly violated.
Under the common law, school district officials or employees are ordinarily not personally liable for school funds paid out or ordered paid where the official sanction or requisition therefor made by superior officers is fair on its face, unless they were aware that the order or written authority therefor was issued without legal sanction or for an unlawful purpose. See 56 C. J. 344, § 220.
Section 6831, above, so far as the question of fundamental liability is concerned, does not enlarge upon the common law. See State ex rel. Sheel v. Ingram, 164 Okla. 244, 23 P.2d 648. The section reads as follows:
"Every officer of any school district who shall hereafter order or direct the payment of any money or transfer of any property belonging to school district in settlement of any claim known to such officers to be fraudulent or void, or in pursuance of any unauthorized, unlawful or fraudulent contract or agreement made or attempted to be made, for any school district, by any officer or officer(sic) thereof, and every person having notice of the facts with whom such unauthorized, unlawful or fraudulent contract shall have been made, or to whom, or for whose benefit such money shall hereafter be paid, or such transfer of property shall be made, shall be jointly and severally liable in damage to all innocent persons in any manner injured thereby, and shall be furthermore jointly and severally liable to the school district affected for double the amount of all such sums of money so paid, and double the value of property so transferred, as a penalty to be recovered at the suit of the proper officers of such school district, or of any resident taxpayer thereof, as hereinafter provided."
In any event, the officer must know that the expenditure is fraudulent or unauthorized by law and void, and other persons charged must have had notice of the facts, before liability may attach.
Section 12315, supra, constitutes the only statutory injunction against the disbursement of funds regularly appropriated by the excise board for the school district. That section, so far as the same is material here, reads as follows:
"Pending the expiration of the time within which protests may be filed with the State Auditor no warrant shall be issued or debt contracted by any municipality for any purpose except as provided hereinafter. * * * *Page 403
"School Districts: For salaries and compensation of officers and clerical employees; for salaries and compensation of teachers; for office supplies, blank books, stationery and printing; for light, fuel and water; for library and school apparatus; for maintenance of buildings and grounds including salaries of janitors and caretakers."
If it may be said correctly that the circumstances as alleged in the petition and set out above were sufficient to charge the defendants with knowledge of the illegality of the appropriations, then a cause of action was stated against them, and the trial court in sustaining the demurrer on the ground of insufficiency of the allegations committed error
All items were paid out on regular warrants prior to the final determination of the above-mentioned protest cases.
It has been held that there must be distinct legislative authority for every tax levy. Protest Chicago, R.I. P. Ry. Co., supra. Since every person of legal capacity is charged with knowledge of the law, presumption would seem to charge the defendants with knowledge of the illegality of the appropriations in question in this case. But that rule does not obtain in cases of this character. Every official act of a public officer is accompanied with the presumption of legality. Usually, nothing short of willful misconduct will subject an officer to liability for acts done in the exercise of his official discretion. This is especially true, and applicable, where he has violated no positive law. This court has heretofore expressed itself in this regard. In Dickey v. Cordell, 176 Okla. 205, 55 P.2d 126, the rule is stated as follows:
"In the absence of malice, oppression in office, or willful misconduct, public officers cannot ordinarily be held liable for mistaken exercise of discretion, or error in judgment, in the performance of official duties."
This is an expression of the common law, and applies to every discretionary act of all public officials in this state, in the absence of positive legislative enactment to the contrary.
The Supreme Court of Arkansas, in a case of very similar purport, has expressed itself on this subject in a manner which seems fully to accord with right and justice. In Hendrix v. Morris, 203 S.W. 1008, that court, when considering certain expenditures of the school district, said:
"In Hendrix v. Morris, 127 Ark. 222, 225, 191 S.W. 949, we held that the directors of this district and the treasurer had no authority to expend the money of the district for such purposes, but it does not follow that the directors are individually liable for the money thus expended. While it is alleged and admitted that the directors had no authority to issue the warrants for the purposes mentioned, there is no allegation that they acted willfully or maliciously. This is essential in order to make the directors personally liable. Where school directors act in good faith, believing at the time that they have authority under the statute to expend the money for the purposes for which they issue warrants, they will not be held individually liable to the district for moneys so expended, even though they have no such authority. * * *"
It is true, the Arkansas statute vests in the school board certain discretionary powers in the management of school affairs and payment of the expense thereof, and the court in the last-cited case said that the discretionary character of the official duties saved the members of the board from liability for mere mistake in the exercise of their powers.
Our statutes also give to the school board many discretionary powers in the management of the different departments of the schools. It is given sole control over the schools. Section 6867, O. S. 1931 (later amended, 70 Okla. Stat. Ann. § 189); and it is not literally true that there must be a distinct legislative authority for every tax levy in the sense that every item for which a tax levy is made must be distinctly stated in some statute. The school board has and can exercise those powers that are granted in express words; those fairly implied in or necessarily incidental to the powers expressly granted, and those essential to the declared objects and purposes of the corporation (1 Dillon, Municipal Corporations, § 89). There were many expenses arising in connection with the conduct of schools theft were impliedly authorized by statute even before the 1937 amendment of section 6867, supra. They were numerous, and some were too well known to warrant mention here. In these things the school board must exercise its discretion, and in so doing it prepares its estimates and the excise board in the exercise of its judgment makes an appropriation accordingly. That appropriation carries with it a presumption of legality, and any funds ordered paid out and received in good faith, and properly within the appropriation, cannot be recovered by the district from those parties who in good faith participated in such expenditures, in the absence of statute to the contrary.
Referring now to the only statutory inhibition against the school officers with reference to expenditures, section 12315, supra, prohibits the issuance of warrants during protest period for all purposes except as provided *Page 404 therein. These exceptions are more or less named in a general way and include salaries and compensation of officers and clerical employees, and teachers, for office supplies and other things named. It does not specify the character of teacher or officer, or employee. The teachers, officers, and employees paid in the instant case are neither specifically included nor specifically excluded in the exceptions named in the statute. The provisions are not entirely free from ambiguity. Either board, the school or the excise, would be compelled to exercise its individual discretion and judgment in determining whether an appropriation should be made for the items in question; at least these boards must so act until it is judicially determined that the expenditures are unauthorized in law. And the school board must use its discretion, in view of the ambiguity aforesaid, in determining whether the particular items are payable during the protest period. These payments are not made at the board's peril. They are made pursuant to statutory authority and are therefore legal when made, even though the appropriations may later be declared illegal in an action brought to determine their validity.
Further, a school treasurer is a ministerial officer and he is not compelled to examine into the validity of an appropriation when a warrant in due form drawn thereon is presented to him. He need not investigate beyond the face of the warrant. Here, the warrants complained of were not attached to the petition, nor is it alleged that they on their face carried any evidence of any invalidity. If there is an appropriation, his duty is limited to payment of the warrant if the same is executed in due form. In fact, he may not refuse to pay upon the plea that the appropriation is illegal. This rule has been applied to county treasurers, and may apply as well to school treasurers. In Estus v. State, 83 Okla. 181,200 P. 1002, the court held as follows:
"The acts of the county clerk and county treasurer in attesting and registering warrants being ministerial, the funds being available for this specific purpose, it is the duty of the clerk to attest said warrants and the treasurer to register the same."
In that case we also held, in effect, that in a proceeding to compel the county clerk and treasurer to attest and register warrants on funds appropriated for such purpose, the act being ministerial, an objection that the act under which the claim was incurred and the warrant drawn was in violation of Constitution, art. 10, sections 19, 29, is not available to such officers. See, also, Bodine v. McDaniel Auto Co.,69 Okla. 143, 170 P. 899; Bowles v. Perkinson, 85 Okla. 244, 205 P. 770.
The demurrer to the sufficiency of the petition was properly sustained. Other assignments will therefore receive no consideration.
The judgment for defendants is affirmed.
BAYLESS, C. J., and RILEY, CORN, HURST, DAVISON, and DANNER, JJ., concur. WELCH, V. C. J., and OSBORN, J., dissent.