Brown v. Ingalls Tp., Kan., 1,014.

• Decision Date: 21 March 1898
• Docket Number: 1,014.
• Citation: 86 F. 261
• Parties: BROWN v. INGALLS TP., KAN.
• Court: U.S. Court of Appeals — Eighth Circuit

86 F. 261

BROWN v. INGALLS TP., KAN.

No. 1,014.

United States Court of Appeals, Eighth Circuit.

March 21, 1898

A. A Godard (D. M. Valentine, on brief), for plaintiff in error.

E. A Madison (M. W. Sutton, on brief), for defendant in error.

Before SANBORN and THAYER, Circuit Judges, and PHILIPS, District judge.

SANBORN Circuit Judge.

On February 25, 1890, the township of Ingalls, in the state of Kansas, issued its negotiable bonds with coupons attached. Each of these bonds contained these representations:

'This bond is one of a series of fifteen bonds, of one thousand dollars each, and issued by virtue of and in accordance with the provisions of sections one, two, and three of chapter fifty of the Laws of 1879, being an act of the legislature of the state of Kansas entitled 'An act to enable counties, municipal corporations, the boards of education of any city and school districts to refund their indebtedness,' which said act took effect March 10 1879; and it is hereby certified and recited that all acts, conditions, and things required to be done, precedent to and in the issuing of said bonds, have been done, happened, and performed in regular and due form, as required by law.'

Only three sections of the act of March 10, 1879, are material in this case. The first authorized every township in Kansas to refund its matured and maturing indebtedness and to issue new bonds for that purpose. The second provided that bonds issued by a township under that act should be signed by the trustee, attested by the township clerk, and countersigned by the township treasurer. The third section contained these provisions:

'When a compromise has been agreed upon, it shall be the duty of the proper officers to issue such bonds at the rate agreed upon to the holder of such indebtedness in the manner prescribed in this act: * * * provided, that no compromise by any township or school district shall be of any validity unless assented to by the legal voters of such township or school district, at an election or school meeting called for such purpose; of which election or school meeting at least ten days' notice shall be given. ' Gen. St. Kan. 1889, pars. 464-466.

Due notice was given of an election to determine whether or not the legal voters of the township of Ingalls would assent to the compromise on which these bonds are based; the election was held; 64 votes were cast, 62 of which were in favor of assenting to the compromise, and 2 were against it; the township board canvassed the returns, declared the result, and issued the bonds to those who were entitled thereto; but the board of county commissioners of the county of Gray, in which this township is situated, never canvassed the returns of this election. After the bonds had been issued, Ephraim A. Brown (who has since died) purchased the bonds, and Anne F. Brown, the executrix of his last will, the plaintiff in error, brought his suit against the township upon some of the coupons which had been attached to the bonds and which had not been paid. She is, and her testator was, when living, the bona fide purchaser for value of these bonds and coupons, without other notice of irregularities in their issue than they were by law bound to take. The case was tried by the circuit court without a jury, and the foregoing facts appear from an agreed statement which was adopted by the court as its findings. The court below held that by virtue of certain general provisions of the statutes of Kansas, which are not found or referred to in the act of 1879 (Gen. St. Kan. 1889, pars. 442, 7064, 7071, 7072), the board of county commissioners of Gray county was required to canvass the returns of this election, and that the bonds and coupons were void in the hands of an innocent purchaser, for value, because that board had never made the canvass. 81 F. 485; Faulkenstein Tp. v. Fitch, 2 Kan.App. 193, 42 P. 276. This is the only ground on which the counsel for the defendant in error attempts to sustain the judgment of dismissal which was rendered below, and, under the decisions of the supreme court of the United States and of this court, it is not tenable, for several reasons:

1. If it was the duty of the board of county commissioners to canvass the returns of the vote on the proposition to issue these bonds, then it was the duty of the members of the township board to send to the board of county commissioners the returns of the election for it to canvass, and it was their duty to examine the records of the county clerk, and determine therefrom whether or not that canvass had been made before they issued the bonds. If a canvass and certificate by the board of county commissioners was the only evidence from which the members of the township board...