Board of Com'rs of Lake County v. Keene Five-Cents Sav. Bank

• Decision Date: 03 April 1901
• Docket Number: 1,441.
• Citation: 108 F. 505
• Parties: BOARD OF COM'RS OF LAKE COUNTY v. KEENE FIVE-CENTS SAV. BANK.
• Court: U.S. Court of Appeals — Eighth Circuit

108 F. 505

BOARD OF COM'RS OF LAKE COUNTY v. KEENE FIVE-CENTS SAV. BANK.

No. 1,441.

United States Court of Appeals, Eighth Circuit.

April 3, 1901

Caldwell Circuit Judge, dissenting.

(Syllabus by the Court.)

H. B Johnson (Charles Cavender and W. H. Bryant, on the brief) for plaintiff in error.

Edmund F. Richardson (Thomas M. Patterson and Horace N. Hawkins, on the brief), for defendant in error.

This was an action brought by the Keene Five-Cents Savings Bank, the defendant in error, against the board of county commissioners of the county of Lake, the plaintiff in error, to recover upon coupons cut from 15 funding bonds, of $1,000 each, which were issued on January 2, 1882, in compliance with an act of the general assembly of the state of Colorado entitled 'An act to enable the several counties of the state to fund their floating indebtedness, ' which was approved February 21, 1881. 1 Mills' Ann.St. §§ 939-944. The bonds disclosed upon their face the fact that they were a part of an issue of funding bonds which aggregated $500,000, and they were payable to Chase & Taylor or bearer. They contained no recital that the amount of this issue was within the constitutional limitation of indebtedness prescribed by the people of Colorado, but simply recited that they were issued under and by virtue of, and in full compliance with, the act of the general assembly, and that they had been authorized by a vote of the majority of the duly-qualified electors of the county who voted upon the question. Out of this issue of bonds, aggregating $500,000, bonds to the amount of $75,000 had been issued to Chase & Taylor, and the 15 bonds from which the coupons in this suit were cut were a part of this issue of $75,000. The defense to the bonds was that they were issued in exchange for county warrants which evidenced debts that were incurred after the limitation of indebtedness prescribed by the constitution of Colorado had been exceeded by the county. Section 6, art. 11, of the constitution of the state of Colorado, which prescribed the limitation of indebtedness, contained a proviso to the effect that this limitation should not apply to counties having a valuation of less than $1,000,000. The assessed valuation of the taxable property in the county of Lake did not reach the sum of $1,000,000 until the 1st day of September, 1879, and there was no time subsequent to that date when this valuation was sufficient in amount to warrant the creation of an indebtedness of $500,000. The funding bonds aggregating $500,000 issued January 2, 1882, were exchanged for county warrants, some of which evidenced indebtedness of the county created before, and some of which represented indebtedness of the county created after, September 1, 1879. The foregoing facts are conceded by counsel for both parties in the argument of the questions presented in this case, and for that reason the method by which they were established is immaterial, and will not be considered. After the defendant in error had introduced in evidence its coupons, and the bonds from which they were taken, and had rested its case, the plaintiff in error attempted to prove that the 15 bonds in question were issued in exchange for county warrants which evidenced obligations of the county which had been created subsequent to the time when its debt exceeded the constitutional limitation, and which were for that reason invalid. For the purpose of showing what warrants were exchanged for the bonds in issue, the county offered three lists or statements which were found in the office of the county clerk of Lake county, wrapped around county warrants there deposited, which corresponded, respectively, in numbers, amounts, dates, and dates of registration, with the lists contained in those statements. These statements were in the following form:

"Office of Chase & Taylor, Sioux City, Iowa. "All Kinds of Municipal Securities Bought and Sold. " . . . . . . . . . . . . . Warrants. "Sioux City, Iowa. No. Amount. Date. Date of Acc. Int. Total. Rate. Am't Paid Registration 3,177 420 June 8, June 14, '80. 65" '80.

There were many entries on each statement, differing only in the figures representing number, date, and amount. One of these statements had on its back, 'No. 1, R. J. Chase, $15,649.24,' and also the words, 'Registered backed.' The figures in the column headed 'Amount' in that statement aggregated $15,649.24. The second statement was backed, 'No. 2, Chase & Taylor, $34,429.98,' and word 'registered' was also written thereon. The third statement was backed, 'D. K. Tenney, $15,305.50,' and the words, 'Registered backed,' were written upon it. To each statement a certificate in substantially the following form was attached:

'State of Colorado, County of Lake-- ss.:

'I, H. S. Phillips, clerk and recorder and county clerk of Lake county, do hereby certify that the annexed and foregoing is a true and correct copy of the warrant list and funding bond statement of (R. J. Chase, Chase & Taylor, or D. K. Tenney, as the case was), as the same appears on file in my office, and in my custody as county clerk and recorder of Lake county, Colorado. Witness my hand and official seal this 26th day of November, A.D. 1898.

'(Seal of County.)

H. S. Phillips, County Clerk.'

The county clerk who made these certificates testified that he had no knowledge of the original transactions, but that when he entered upon the duties of his office he found the originals of these three statements wrapped up with county warrants which corresponded in number, date, and amount with the figures under the respective columns in the statements; and the warrants so found by him were offered in evidence with the statements. The statements and warrants thus offered were excluded by the court on the ground that they did not constitute competent evidence that any of these warrants were exchanged for the bonds in suit. No other evidence was offered in the case to identify the warrants which were exchanged for these bonds, and at the conclusion of the trial the court instructed the jury to return a verdict in favor of the defendant in error.

Before CALDWELL and SANBORN, Circuit Judges, and ADAMS, District Judge.

SANBORN Circuit Judge, after stating the case as above, .

The issue concerning the trial of which the chief complaint is made in this case was whether or not certain county warrants found in the office of the county clerk of the plaintiff in error about the year 1898 were exchanges in 1882 for any of the 15 funding bonds upon which this action was founded. This was a very simple issue of fact. To establish its claim that some of these county warrants were exchanged for some of these bonds, the county offered in evidence certified copies of three lists of warrants written on the letter heads of Chase & Taylor, aggregating, respectively, $15,649.24 $34,429.98, and $15,305.50, together with three bundles of county warrants corresponding in dates and amounts with these lists. These warrants were found in the office of the county clerk of the county of Lake, with these lists wrapped around them, when the present clerk entered upon the discharge of the duties of his office. Neither of these lists bore any signature or date, and no witness came to testify when, why, or by whom they were made. It is earnestly contended that the rulings of the court below that this evidence was incompetent to prove the fact that any of these warrants were exchanged for any of the bonds in issue was a fatal error. But the established rules of evidence which control the trial of an issue of fact between adverse litigants are not suspended or abrogated when one of the parties, the defendant certainly could not have established the exchange by proof either that he had himself said or written, or that Chase & Taylor or any other person had said or written, that such an exchange had been made. The former statement would have been a mere self-serving declaration, and the latter the baldest hearsay. The plaintiff would have been entitled upon such an issue to the testimony, under oath, of the witnesses who knew the facts, and to an opportunity to cross-examine them, and in the absence of such evidence the defendant would surely have failed. These rules are equally applicable to the trial of such an issue between a private individual and a county, in the absence of any modification or abrogation thereof by act of congress or of the legislature. The officers of a county are its agents. Their acts and statements in the discharge of their official duties are the acts and statements of the county, and not those of its adversaries. Upon a simple issue of fact like that in hand, such acts and statements may sometimes be used in evidence against the county as its admissions against interest; but, when offered by the quasi municipality, they are as much self-serving declarations and as incompetent as the prior oral or written statements of an individual in support of his claim or defense, unless they are made competent by some express statute, or unless they fall under the recognized exception applicable to 'official registers or books kept by persons in public office, in which they are required by statute or by the nature of their office to write down particular transactions occurring in the course of their public duties and under their personal observation.' 1 Greenl.Ev. § 483; Evanston v. Gunn, 99 U.S. 660, 25 L.Ed. 306; White v. U.S., 164 U.S. 100, 17 Sup.Ct. 38, 41 L.Ed. 365; In re Hirsch (C.C.) 74 F. 928. There was no evidence that any of these lists of warrants, or that any of the writing thereon, was made by any officer or agent of the county; and, if there had been, the lists would still have been incompetent, because no such statements were required...