Harrison Cnty. v. Ogden

• Decision Date: 19 February 1914
• Parties: HARRISON COUNTY v. OGDEN ET AL.
• Court: Iowa Supreme Court

165 Iowa 325

145 N.W. 681

HARRISON COUNTY

v.OGDEN ET AL.

Supreme Court of Iowa.

Feb. 19, 1914.

Appeal from District Court, Harrison County; C. D. Wheeler, Judge.

Action against a treasurer on his bond to recover money in his hands, as treasurer, belonging to the county. Defense that he paid the money upon a warrant issued by the auditor. Held, that the contract on which the warrant was issued was ultra vires; that, before the payment of the money by the treasurer, the contract was rescinded, by resolution of the board and the treasurer directed not to pay the warrant, and this before the money was paid. Judgment and decree for the plaintiff. Affirmed.J. S. Dewell, of Missouri Valley, for appellants.

Tinley & Mitchell, of Council Bluffs, and M. B. Bailey, Co. Atty., of Dunlap, for appellee Harrison County.

Roadifer & Arthur, of Logan, for other appellees.

GAYNOR, J.

The defendant Ogden was treasurer of Harrison county from January 1, 1902, to January 1, 1909. He was elected first at the general election in November, 1901, and every two years thereafter was reelected to the office. His term of office was extended one year by joint resolution No. 1 of the Thirtieth General Assembly. Before entering upon the discharge of his duties at each term, he executed a bond to the county, conditioned as required by law, with certain of the defendants herein named as sureties upon the bond.

On the 30th of December, 1901, the defendant W. T. Roden presented to the board of supervisors of Harrison county, the following written proposition: “Understanding that Harrison county desires to purchase or procure land for the purpose of a poor farm or for constructing buildings for the poorhouse thereon, I submit the following proposition: I will sell to the county the west half of the northwest quarter of section No. 21, township 78, range 44 west of the fifth P. M. at the price of $62.50 per acre in cash, or if the county prefers to pay $1,500.00 in cash and the balance March 1, 1902, I will execute to the county a warranty deed with abstract showing title complete in me. I also make the following additional proposition: That in case the above-described land is purchased in the terms therein stated, I will lease to the county for use in connection with said land, the southeast quarter of the northwest quarter of said section 21 for a period of ten years at the annual rental of $3.50 per acre, and the county to pay all taxes thereon during the term of said lease and to keep up all fences if any it desires. I will also in connection with said lease give the county the option to buy said land at any time within the period of ten years at the price of $50.00 per acre and in case of purchase of said additional forty acres of land, the rent shall be computed to such time for the proportionate part of the year after March 1, 1902, or any subsequent year thereafter. Said lease commencing as of March 1, 1902, and continuing for ten years under the conditions named the rent to be paid annually on March 1st of each year. In case the county should elect to buy such additional forty of land he likewise agrees to give a warranty deed with abstract showing title complete in him at the time of selling to the county. The county may accept the first portion of the above proposition or may accept the entire proposition as a whole, but the same is subject to a recall by me at any time before actual acceptance by the county by filing notice with the auditor.”

Upon the presentation of this proposition to the board, it adopted the following resolution: “Whereas the poor farm heretofore owned by Harrison county having been disposed of and said county being at present without land for a poor farm or land for the purpose of erecting a poorhouse and necessary buildings connected therewith, it is considered proper and necessary for the board of supervisors of said county to procure land for a poor farm and for the purpose of erecting proper and necessary buildings for the poorhouse and appurtenances thereto belonging; therefore, be it resolved by the board of supervisors of Harrison county, Iowa, that said county purchase from W. T. Roden, the following described real estate for the purpose above stated, to wit: The west half of the northwest quarter of section 21, township 78, range 44 west of the fifth P. M., for the sum of five thousand dollars; said W. T. Roden having offered to sell the same to the county for said amount, as shown by his proposition in writing filed in the auditor's office this day. Be it further resolved, that the county auditor is hereby directed to issue a warrant to W. T. Roden for the sum of $1,500.00, as part payment of said real estate, and that the balance thereof be paid March 1, 1902, in accordance with said proposition, and upon the execution by said W. T. Roden of a warranty deed to the county conveying the said land in fee simple accompanied by the abstract showing title complete in his at the time of such conveyance.”

Thereupon and on the same day, two members of the board entered into the following contract with the said Roden: “This contract, made this 30th day of December, 1901, between W. T. Roden of Missouri Valley, Iowa, and the county of Harrison and state of Iowa, witnesseth that the first party has hereby agreed to sell and hereby sells to Harrison county the west half of the northwest quarter of section number 21, township 78 north, range 44 west of the fifth P. M., for the agreed price of $5,000.00 of which the said second party has paid the sum of $1,500.00 in cash, the receipt of which is hereby acknowledged and said Harrison county hereby agrees to pay the further sum of $3,500.00 in cash on or before March 1, 1902, and in consideration of such payment the first party hereby agrees to execute to Harrison county a warranty deed to said premises conveying the title in fee simple with warranty that the title to said premises is complete in the first party at the time of such conveyance, and to defend the title of such premises to said Harrison county, Iowa, against the lawful claims of all persons whomsoever.”

Thereupon the auditor of the county issued a warrant, No. 3671, in the amount of $1,500, drawn on the general fund, the only consideration for which being the contract above set out. The said warrant so issued was delivered to the defendant Roden, and by him presented to the defendant Ogden, as treasurer of the county, and by him stamped: “Not paid for want of funds.”

Thereafter, and prior to April 7, 1902, this board of supervisors was removed from office, and their places filled by others. On April 7, 1902, the new board of supervisors passed a resolution as follows: “Be it resolved, that the contract made by and between W. T. Roden and Harrison county, Iowa, on the 30th day of December, 1901, for the purchase of the west half of northwest quarter of section 21, township 78 north, range 44 west of fifth P. M., is hereby rescinded, canceled and declared void, and, further that the auditor of Harrison county is ordered to mail by registered mail or by personal service a copy of this resolution to W. T. Roden. Resolved, further, that the auditor of Harrison county, Iowa, shall serve by registered mail or by personal service, a written demand of W. T. Roden for the return by him of county fund warrant No. 3671, issued to W. T. Roden for $1,500.00 December 30, 1901, in the sum of $1,500.00 or in cash to reimburse the county for said warrant. Resolved, further, that the county auditor is hereby instructed to take such legal measures as by law provided to recover of said W. T. Roden the sum of $1,500.00 with interest at 6% per annum from December 30, 1901, for the amount of county general fund warrant No. 3671, issued illegally to W. T. Roden for $1,500.00 December 30, 1901, in part payment for the west half of northwest quarter of section No. 21, township No. 78, range No. 44 west of fifth P. M., Harrison county, Iowa.”

On the same day the following resolution was unanimously adopted: “Resolved, that the treasurer of Harrison county, Iowa, is hereby ordered to refuse to pay to any person presenting county general fund warrant No. 3671, issued to W. T. Roden on December 30, 1901, for $1,500.00. Resolved further that the auditor of Harrison county, Iowa, serve on the treasurer of Harrison county, a copy of this resolution, which shall be his authority to refuse payment of the same.”

It appears that on the 7th day of April, 1902, a copy of the resolution aforesaid, rescinding the action of the board of supervisors in authorizing the issuance of warrant No. 3671, and demanding that the treasurer refrain from paying the warrant, was served upon the defendant Ogden, as county treasurer.

It appears that on the 9th day of April, 1902, the defendant Roden served a notice upon the board of supervisors to the effect that he would proceed to collect the balance due under his contract with the board; that on the 31st day of May, 1902, the defendants W. A. Smith, W. J. Burke, and J. S. Dewell served notice upon the county to the effect that the Roden contract had been assigned to them, and further notifying the county that they were ready to fulfill the contract, and that, if the county failed to pay the balance due within 30 days, they would elect to declare the contract forfeited.

It appears that, about this time, one Nelson commenced an action against Harrison county, in which he sought a decree canceling a large number of warrants which he claimed to have fraudulently issued. This warrant (3671) was involved in that suit, and the district court, upon hearing, ordered the same canceled. Upon appeal to the Supreme Court, the case, in so far as warrant No. 3671 was concerned, was reversed, on the ground that the court did not have jurisdiction, for the reason that W. T. Roden, to whom the warrant was issued, and the State Savings Bank of Missouri Valley, to whom the warrant is claimed to have been...