EDNA SCHWARTZ, AND RICHARD E. SCHWARTZ, APPELLANTS,
v.
PHILIP R. DIEHL, AN INDIVIDUAL, JAILOR AND DEPUTY SHERIFF OF OSAGE COUNTY, GEORGE WAYMAN, SHERIFF OF OSAGE COUNTY, AND BOYD PETERS, UNDER SHERIFF OF OSAGE COUNTY, AND MARYLAND CASUALTY COMPANY OF BALTIMORE, A CORPORATION, APPELLEES.

Certiorari to the Court of Appeals, Division No. 2.

�0 Appeal from the District Court of Oklahoma County, Carmon C. Harris, Trial Judge; action against three Osage County officials and their bonding company. Service was obtained on the company's service agent in Oklahoma County and on the officials in Osage County. The officials appeared specially and were successful in quashing summons because of lack of venue. Court of Appeals, Division No. 2, reversed trial court. Defendants seek Certiorari. CERTIORARI GRANTED. OPINION OF COURT OF APPEALS VACATED. JUDGMENT OF TRIAL COURT AFFIRMED.

Paul F. Fernald, Keller & Fernald, Oklahoma City, for appellants.

Hamilton & Lambert, Oklahoma City, Heskett & Heskett, Harvey Payne, Asst. Dist. Atty., Pawhuska, for appellees.

SIMMS, Justice.

[568 P.2d 281]

�1 Plaintiffs, owner of a grocery store in Osage County, Oklahoma, brought action against the Sheriff of Osage County and two of his deputies and their bonding entity, Maryland Casualty Company, a foreign insurance company, for an allegedly wrongful execution upon plaintiff's property. All actions by the sheriff and his deputies which form the basis of this suit took place in Osage County, and were done under color [568 P.2d 282] of authority of their office. Plaintiffs filed their petition in Oklahoma County. Service of summons was obtained upon the public officers of Osage County in Osage County. Service upon Maryland Casualty was obtained upon its statutory service agent, the State Insurance Commissioner, in Oklahoma County.

�2 The sheriff and his deputies specially challenged the process, venue and jurisdiction of the Oklahoma County District Court.

�3 Plaintiffs relied upon 12 O.S.Supp. 1975 � 143 , in support of their contention that venue was proper as to all defendants in Oklahoma County. The trial judge sustained defendants' attack on the venue and quashed the summons based upon his conclusion that � 143 was unconstitutional.

�4 Section 143 states:

�5 The trial judge found the statute fatally defective for the reasons that "it is vague and ambiguous and has the effect of repealing all special venue statutes without meeting the requirements of a repealing statute; that by its own language, the statute contradicts itself and creates a preference when an action is brought by virtue of one venue statute when another is just as, if not more, applicable."

�6 Plaintiffs appealed and the Court of Appeals, Division 2, vacated the trial court's order and remanded the cause for further proceedings. Defendants seek Certiorari. We Grant Certiorari and, for the reasons discussed below, vacate the opinion of the Court of Appeals and affirm the trial court. For convenience, the parties will be referred to by their designation in the trial court.

�7 Plaintiffs contend that their action was properly filed in Oklahoma County by reason of Art. 9, Okl.Const., and 12 O.S. 1971 � 137 ,

�8 Defendants submit various arguments in support of the trial judge's determination that � 143 is unconstitutional. Defendants also contend that regardless of the constitutionality of � 143, summons was properly quashed because under 12 O.S. 1971 � 133 ,

[568 P.2d 283]

�9 We agree with defendants' statutory analysis and find it unnecessary to reach the constitutional issues raised by the parties. Courts, of course, will pass upon the constitutionality of a statute only when it is necessary to a determination on the merits. In re Mayes-Rogers Counties Conservancy Dist. Formation, Okl., 386 P.2d 150 (1963).

�10 We are concerned here with multiple joint defendants. The venue of actions against multiple joint defendants "lies only in the county or counties meeting the requirements of all applicable specific venue statutes" and only "when such requirements have been met, the action is `rightly brought'" as authorized by � 154. City of McAlester v. Fogg, Okl., 312 P.2d 867 (1956); Missouri-Kansas-Texas R.R. v. Coryell, Okl., 483 P.2d 1148 (1971).

�11 Suits against public officials for actions in virtue, or under color, of their office are restricted by � 133 to the county where the cause of action arose. See, Starns v. District Court of Oklahoma County, Okl., 376 P.2d 592 (1962). In this action venue as to the individual public official defendants exists only in Osage County.

�12 Venue over Maryland Casualty is statutorily permissible both where the cause of action occurred (Osage County) and where their agent is located (Oklahoma County) � 137. The venue of the cause of action against Maryland Casualty, however, does not establish the venue of the action against the individual defendants. State ex rel. Dir. of Okl. Alc. Bev. Con. Bd. v. Smith, Okl., 519 P.2d 477 (1974).

�13 Osage County, the county where the cause of action arose, is the only forum which meets the requirements of all applicable venue statutes.

�14 This result is not changed by the existence of � 143. The provisions of � 143 that venue statutes are "cumulative" and disallowing preference of one statute over another, are necessarily dependent upon venue being proper in two or more counties.

�15 It is clear that � 143 is not applicable where venue is statutorily authorized in only one county. There is no question in this action of "cumulative" statutes or "preferences". Venue of the action against the multiple joint defendants is proper only in Osage County. Section 143 does not require that venue be granted improperly as to multiple defendants simply because venue is proper as to one defendant.

�16 To paraphrase the language of the Court in Fogg, supra, if the plaintiffs had so desired they could have maintained the action as against all defendants in the county where the cause of action arose but, if they chose to bring it in a county where venue did not lie as to the individual defendants, then, those defendants had the option of saying whether or not they would submit to suit in that jurisdiction.

�17 The defendants here have refused to submit to suit in Oklahoma County. The trial court's judgment quashing the summons was correct.

�18 We wish to stress that the additional conclusion reached by the Court of Appeals that � 143 overrules the doctrine of intrastate forum non conveniens is incorrect. This issue was very recently addressed by this Court in Harwood v. Woodson, 561 P.2d 1 (Okl. 1977), wherein we stated that:

�19 Opinion of the Court of Appeals Vacated. Order of the trial court Affirmed.

�20 HODGES, C.J., LAVENDER, V.C.J., and DAVISON, WILLIAMS, IRWIN, BERRY and DOOLIN, JJ., concur.