
    STATE ex rel. PRUNTY v. DOWLER et al.
    No. 22775.
    June 8, 1937.
    Sargent & Ross and Simons, McKnight, Simons, Mitchell & McKnight, for plaintiff in error.
    Felix Duvall, for defendants in error.
   WELCH, J.

This is a companion case to H. M. Dowler et al. v. State of Oklahoma ex rel. F. O. Prunty, 179 Okla. 532, 66 P. (2d) 1081. The parties were all in the same action in the trial court. The plaintiff there recovered judgment against the three city commissioners and H. M. Dowler, and those defendants appealed in cause No. 22617. In the trial court judgment was rendered in favor of the defendant Blackwell Zinc Company, Incorporated, and from that judgment the plaintiff prosecutes this appeal.

Reference is hereby made to the opinion of this court in the Dowler Case No. 22617 as to complete statement of facts. The plaintiff contends that, while Dowler was the record owner of the lands conveyed to the city, he was the agent of the defendant Blackwell Zinc Company, Incorporated, and that recovery should be had also against said corporation defendant.

There was no evidence whatever that Dow-ler had knowledge that the claims were allowed and the warrants issued on the general fund in excess of the appropriations made and approved, and - without 'any appropriation. This is a penalty action, and, in keeping with the rules of law applicable thereto, we held that in the absence of such proof, the defendant Dowler was not liable, and that view is controlling here. Therefore, it is immaterial here whether Dowler was the agent of the Blackwell Zinc Company. No contention is made that this company itself had 'any notice or knowledge of the matters held to render the expenditure of the funds illegal and unauthorized in the Dowler Case, supra. It follows ■ that the action of the trial court in instructing a verdict for Blackwell Zinc Company, Incorporated, was in all respects free from error and correct.

The judgment of the trial court is affirmed.

OSBORN, C. J., and PHELPS, CORN, and HURST, JJ., concur.  