Chaney v. Edmonds
| Decision Date | 10 May 1941 |
| Docket Number | 35157. |
| Citation | 153 Kan. 668,113 P.2d 81 |
| Parties | CHANEY et al. v. EDMONDS, County Treasurer, et al. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
The question of what a trial court should or should not have done in connection with a protested order or ruling is not properly raised, as a basis for review, by mere refusal to approve a journal entry which correctly states what was actually done. Gen. St.1935, 60-3827, rule 49.
The entire duty of county treasurer with respect to payment of warrants of drainage district is not covered by provision of the drainage district act for such payment, but such provision must be considered in connection with the general statutes defining duties of treasurer. Gen.St.1935, 24-415; Gen.St.Supp.1939, 10-806.
Under provision of the drainage district act that compensation of directors, assessors, engineers, and attorneys employed by directors shall be paid out of the general fund, attorneys may only be paid out of the general fund, and may not be paid out of special improvement fund or any other special fund. Gen.St.1935, 24-415, 24-428, 24-432; Gen.St.Supp.1939 10-806.
Public officers cannot be required to perform ministerial acts which would effectuate unlawful acts or purposes on the part of other officers who may be clothed with broader powers of administration or discretion.
Public officers are not liable for damages for refusal to perform ministerial acts which would effectuate unlawful acts or purposes on the part of other officers who may be clothed with broader powers of administration or discretion.
1. Payment for the services of attorneys, employed by drainage districts, organized under the provisions of the Drainage District Act of 1905, as amended, may only be made out of the general fund maintained by such district. G.S.1935, 24-428.
2. A public officer will not be required to perform an act although such act be ordinarily regarded as ministerial in character, where its performance would effectuate an unlawful act or purpose on the part of other officers who may be clothed with broader powers of administration or discretion.
3. Public officers may not be held liable in damages for refusal to perform an act such as that described in part 2, supra, of this syllabus.
4. The question of what a trial court should or should not have done in connection with a protested order or ruling is not properly raised, as a basis for review, by mere refusal to approve a journal entry which correctly states what was actually done.
Appeal from District Court, Jefferson County; Lloyde Morris, Judge.
Action by Walter T. Chaney and another, a partnership doing business as Chaney & Richardson, against Ralph W. Edmonds, county treasurer of Jefferson County, and another, surety on his official bond, for refusal to cash a warrant issued by a drainage district. From an order for defendants, plaintiffs appeal.
Walter T. Chaney and Lawrence
Richardson both of Topeka, for appellants.
James S. Lester, Co. Atty., of Grantville, and James F. Swoyer, of Oskaloosa, for appellees.
This was an action to recover damages from a county treasurer and the bonding company, surety on his official bond, for refusal to cash a warrant issued by a drainage district. Plaintiffs appeal from an order sustaining defendants' demurrer to the petition. The principal question presented is whether the warrant showed upon its face that it was improperly drawn and if it did so show, whether the county treasurer acted within his powers in refusing to cash it.
Formal parts of the petition need not be recited. Plaintiffs, attorneys-at-law, alleged that Stonehouse Drainage District No. 1, in Jefferson county, had deposited its funds with the county treasurer as required by law; that among such funds was a fund "designated as a Special Improvement Fund, being the proceeds from the sale of certain bonds, the proceeds of which were to be used in the construction of a certain drainage project" (italics ours) within the drainage district; that on February 29, 1940, the directors of the drainage district executed and delivered to them a warrant "drawn upon the Bond Fund" (italics ours) in the sum of $500; that the county treasurer had refused, after demand, to cash the warrant; that by virtue of such refusal they had been forced to expend certain sums aggregating $50 "in attempting to get the county treasurer *** to perform his duty as county treasurer and pay said warrant"; that thereby they had been damaged in the sum of $552, for which amount judgment was asked. The warrant, which was attached to and made a part of the petition, was as follows:
On May 20, 1940, defendants demurred to the petition on the grounds that the court had no jurisdiction of the defendants, that the plaintiffs were without legal capacity to sue, and that the petition did not state facts sufficient to constitute a cause of action. Oral arguments on the demurrer were heard, written briefs presented, and on November 4, 1940, the demurrer was sustained and the plaintiffs given time to amend or otherwise plead.
Appellants' first and second assignments of error are, in substance, that the journal entry, prepared by counsel for appellees, contained no statement of the grounds upon which the demurrer was sustained; that they returned it to counsel without approval and with a request that such statement be incorporated therein in order that they be so advised in the event they cared to amend; that the trial court refused to comply with the request and approved the journal entry without fixing a time for a hearing, with notice to appellants, to determine its contents. G.S.1935, 60-3827, rule 49.
We shall give only brief attention to the above assignments of error inasmuch as appellants have not discussed them either in their brief or oral argument, and apparently rest their appeal upon other grounds. Suffice it to say that appellants do not contend that the journal entry does not correctly recite the judgment that was announced, but only urge that the trial court should have stated the grounds upon which the demurrer was being sustained. The provisions of G.S.1935 60-3827, rule 49, here pertinent, which relate to the preparation and...
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State ex rel. Lester v. Baker
...and attorneys employed by the board of directors shall be paid out of the general fund hereinbefore authorized." In Chaney v. Edmonds, 153 Kan. 668, 113 P.2d 81, 82, involving an action to recover damages from the Treasurer and the surety on his official bond for refusal to cash a warrant (......
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City of Wichita v. Bumm, 41083
...in making its own journal entry and filing the same without the approval of counsel for either party or both. See Chaney v. Edmonds, 153 Kan. 668, 113 P.2d 81. The error, if any, on this point standing alone is conceded by counsel for the appellant to be no more than a procedural Upon all t......
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Joint Consol. School Dist. 2 v. Johnson
... ... No. 110 in Marion County v. Rhodes, supra), permitting ... recovery from the treasurer and his sureties, and our recent ... decision in Chaney v. Edmonds, 153 Kan. 668, 113 ... P.2d 81, [163 Kan. 211] holding that a warrant to pay ... attorneys, drawn upon the wrong fund, is not 'properly ... ...
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Yonke v. Alber's Estate, 23397
...in no wise approving the action of the court. The law of Kansas so states. Sect. 60-3827, Rule 49 G.S. of Kansas, 1935; Chaney v. Edmonds, 153 Kan. 668, 113 P.2d 81; Gates v. Gates, 160 Kan. 428, 163 P.2d 395 (1945). Appellants next mention waiver No. 4, wherein respondent 'asserted no clai......