This оriginal action involves a determination of the proper venue of an action now pending as Cause No. 20114 of the District Court in and for Bryan County, Oklahoma. Plaintiff, hereinafter referred *415 to as applicant, seeks a writ of prohibition from this Court to prevent said court and its judge (named as defendants, but hereinafter referred to as respondents) from trying said cause on its merits for the reason that the proper venue of such action is not in Bryan County, but in Oklahoma County where the State Capital and the office of the defendants, as members of the State Board of Education, is located.
The purpose of the Bryan County action, as revealed in the petition filed therein, is to declare null and void, as unconstitutional, a portion of the recent amendment to the Oklahoma School Code, enacted as Sec. 37 of House Bill No. 964 of the last, or Twenty-Fifth, session of our State’s Legislature, Tit. 70, Chap. A., S.L. 1955, pages 433, 434, 70 O.S.Supp. § 16-20a, and to enjoin defendants, as members of the State Board of Education from acting on, or pursuant to, the provisions of said section.
The plaintiffs in said action are certain school book dealers and sales companies of the City of Durant, in Bryan County, and others of Oklahoma cities outside Bryan County, together with said county’s school superintendent and onе of its school districts.
For the purpose of determining the only question at issue in this action, it is necessary only to notice the general character of the Bryan County action. Sec. 37, supra, which the plaintiffs are therein seeking to have the Bryan County District Court nullify, makes various changes in the Oklahoma School Code with reference to the procurement of library books for all school districts of the State. Among other things, it provides that not later than November 30th, of each year, the State Board of Education shall “select an official list” of such books, and that publishers wishing the board to consider books for placing on said list, shall furnish said boаrd “a sample copy of each book, stating the price thereof, with guaranty against increase thereof for one (1) year, which shall include cost of delivery to a school district.” Said section further provides: “All publishers submitting books for consideration shall agree to keep stocks of their books at a joint dеpository in Oklahoma in sufficient quantities to supply all immediate demands, where books of different publishers may be packaged and shipped in single orders.” Instead of allowing each school district to purchase, using State Aid funds, whatever library books it needs, the new amendment provides that such books shall, upon requisition of thе school district, be purchased for it by the State Board of Education exclusively from the official list, said books to be charged to the district by the Board by deducting their price, together with the cost of shipping, from said district’s share of a “school library account” that the State Board creates by allocating thereto а portion of each district’s State Aid funds on a per capita basis, or formula, prescribed in the Act. The Act further provides that any school district’s portion of said school library account not used by June 30th, following the allocation, shall ■be re-allocated to other districts.
The gist of the charges against the Amendment сontained in the petition filed in the Bryan County action by plaintiffs, both as book dealers, taxpayers and in their positions relative to the school system of said county, is that it is void and unconstitutional for the following reasons:
(1) Its title is insufficient under Art. V, sec. 56(7) of the Oklahoma Constitution ;
(2) It attempts to delegate legislative powers to thе State Board and does not provide for judicial review;
(3) It provides no “trade books committee” to protect the public in the selection of “trade books” to go on the official list; it does not prescribe how the joint depository shall be selected; it provides no way for a publisher to ascertain hоw much freight is to be included in the price of a book he submits for placing on the official list in the event that books of that title are shipped from the depository to the various school districts with other publishers’ books on the list; it allows school districts to be charged with a double shipping charge when books are re-shipped from the joint *416 depository to them; it provides no maximum for the price of such books;
(4) Under the Act, the joint depository will be able to charge publishers an unlimited commission, passed on to the school districts, on books furnished from it to school districts;
(5) Besides destroying the freedom each school district had before passаge of the Amendment to select, and use State Aid funds to buy “trade books” best suited to their own individual needs on the “open, competitive market * * * at the lowest possible price, at a consequent saving of taxes”, the provisions of the Act referred to enable one person, or group, designated as “the depоsitory” to illegally control and monopolize the sale of all trade books sold to public schools in Oklahoma; they place an unnecessary and illegal burden on the sale of merchandise in interstate commerce; they deprive school districts of property without due process of law; and they will result in thе perpetration of fraud upon the public and the squandering of public funds detrimental to the “general welfare” and “public policy” of the state.
Principal among the reasons applicant cites for its proposition that the above described suit should have been brought in Oklahoma County, rather than Bryan County, is Tit. 12, O.S.1951 § 133, which provides in part:
“Actions for the following causes must be brought in the county where the cause, or some part thereof arose:
* * * * * *
“Second. An action against a public officer for an act done by him in virtue, or under color, of his office, or for neglect of his official duties.”
Respondents do not seriously dispute the applicant board’s contention that it, or, each of its members, is a “public officer” within the contemplation of the above statute; and we do not think they could successfully do so, in view of that term’s comprehensive meaning. For definitions of “public officer” see City of Tulsa v. District Ct. of Tulsa Co., 174 Old. 470,
Neither of the parties to this action cite any Oklahoma case that is decisive of the question herein presented. All recognize it as one of first impression in this jurisdiction. Apparently, most states have venue statutes which fix, more or less definitely, the forum of actions against public officers. See Eck v. Stаte Tax Comm.,
“ ‘ “The language of this sectiоn is plain, and needs no comment from us. By its proceedings against public officers for official acts are referred to che courts of the county where the acts are done. It is an expression of the purpose of the Legislature to localise suits against officers. It relieves them from the necessity of deciding between the conflicting ordеrs of courts of different counties. They are amenable only to the courts of the county in which they are acting.”’ [State ex rel. Caster v. Flannelly] 96 Kan. [372] at page 380, 381, 152 P. [22] at page 25. (Our italics.)” [175 Kan. 781 ,267 P.2d 535 .]
And we do not think that for the purpose of determining the venue of the action here involved, the official acts of the State Board of Education cаn be divorced from, or be considered as being performed in a county other than, the one in which its office is located, though, as hereinbefore indicated it seems to be conceded that there is no statute requiring said board’s meetings to be held in that county. One reason for such statutes, other than relieving public offiсers “from the necessity of deciding between the conflicting orders of courts of different counties” is that it obviates the longer absences of public officers from their official place of business or duty, and the neglect or hampering of that duty which traveling to distant counties to defend litigation, with or without merit, would necessitаte. In this connection see Holyfield v. State,
A part of respondents’ argument that the “official residence” of the State Board of Education is not at the- State Capital in Oklahoma City, Oklahoma County, consists of pointing out that its members are not among the executive officers who, Art. VI, sec. 1 of our Constitution provides, shall keep their offices and records “at the seat of government * * They recognize, however, that the Superintendent of Public Instruction is one of the officers specifically included in that provision. They also recognize that when that constitutional provision was adopted there was no State Board of Educаtion, and that said Board was not created until 1943. In this connection, it must also be recognized that the above cited constitutional provision did not purport to limit the officers, who should keep their offices and records “at the seat of government” to those specifically named therein, because, after naming sаid officers, it contains the significant phrase: “and other officers provided by law * * Respondents do recognize that the Oklahoma School Code, as now in force, makes the State Superintendent of Public Instruction the executive officer of the Board, Tit. 70, O.S.1951 § 2A-4, enacted in 1949. They do not mention, however, that it also makеs him a member and President of said *418 Board, Tit. 70, O.S.19S1 § 2A-1, and that sec.'. 2B-2 of said title provides that he shall' have an office “at the ’seat of government, where he shall; keep all hooks and papers pertaining to his office * * * ” and “ * * * file and carefully, preserve * * * all official reports made to him.”
After considering the constitutional prоvision, supra, together with all statutory provisions that ‘have any bearing on the matter, including Tit. 70, O.S.1951 § 2A-4, par. 18, which specifically refers to “the
office
of said Board” and sec. 2A-2 authorizing the (State Superintendent as) President of said Board to call special meetings, we can only conclude, and we think it is a matter of common knowledge, that said office is in the State Capitol, just as is the office of its President. We also think this is determinative of the question of, in what county is the official residence of the State Board of Education. In this connection, see Leonard v. Henry,
■We now come to the question upon which we have indicated .there is not complete harmony in the,decisions of the various State courts, ■ namely: In an action against a public officer, in what county, under Tit. 12, sec. 133, supra, does “the cause, or some part thereof” arise? We think the proper decision of this question in any given case depends considerably upon its particular facts and character. Respondents say that a liberal construction of said statute-, authorizes the “division” of a cause of action into parts, so that venue may lie in many counties with the result that exclusive jurisdiction is in the District Court of the county where the first action on said cause is filed. They anticipate that the State Board will take аction which they say is authorized under the allegedly unconstitutional sec. 37, supra, that will deprive the Bryan County School District named as 'one of the plaintiffs in cause No. 20114, supra (and inferentially other school districts in said county), of library book funds, and prevent it from- buying such books from local stores and dealers. Then- they ask.-the questiоn: ' Do.not such, acts of the State Board, in compliance with such a law, give rise to a cause of action in Bryan County? Here, again, we think we should follow the Kansas decisions. In view of what .we have already said concerning the office and official residence, or principal place of business, of the Stаte Board of Education, we think that its official acts, under sec. 37, supra, with which plaintiffs are assertedly concerned, must be-regarded as being performed at the State Capital in Oklahoma City, from which situs the results thereof must emanate. In City of Coffeyville v. Wells, supra, an action was brought in the District Court of Montgomery County, Kansas, to restrain Wells, the Kansas State Oil Inspector, whose office was at said State’s Capital in Shawnee County, from collecting or attempting to collect that State’s motor-vehicle fuel tax on gasoline purchased by the plaintiff city. There, on appeal from the lower court’s dismissal of the action, the Kansas Supreme Court, after pointing out certain things that the law required said inspector to do, and to be done, at his office in the State Capitol in connection with collection of the tax involved, quoted from State ex rel. Caster v. Flannelly, supra, in part, as follows:
“A state officer acting under the law at the capital, mаy perform an act which some individual somewhere in the state believes invades his rights or does him a wrong. * * * invasion by an act wholly performed in another county does not give.the aggrieved party the right to sue outside the county where the act was done. The action in the district court stands just the'same as if the receivers [aрpellants or plaintiffs] were attempting to contest the validity of an act of the Legislature, and were seeking to enjoin the Attorney General or the auditor. of state, or the tax commission, or the state board of health, from proceeding thereunder.” [137 Kan. 384 ,20 P.2d 478 .]
As regards venue, we see no distinction, on principle, betwеen the acts of the Kansas State Oil Inspector that were sought to be. enjoined in the Montgomery County, *419 Kansas, action dealt with in the above quoted case, and the acts of the State Board of Education that are sought to he enjoined in the Bryan County action here involved.
On the basis of the considerations herein noted, it is our opinion that the writ of prohibition, applied for herein, should be granted. It is so ordered.