Coffin v. Board of Com'rs of Kearney County

• Decision Date: 10 July 1893
• Docket Number: 231.
• Citation: 57 F. 137
• Parties: COFFIN et al. v. BOARD OF COM'RS OF KEARNEY COUNTY.
• Court: U.S. Court of Appeals — Eighth Circuit

57 F. 137

COFFIN et al. v. BOARD OF COM'RS OF KEARNEY COUNTY.

No. 231.

United States Court of Appeals, Eighth Circuit.

July 10, 1893

Statement by THAYER, District Judge:

This was a suit on county bonds which were issued by Kearney county, Kan., on August 1, 1888, for the purpose of refunding its outstanding indebtedness. Each bond contained the following recital:

'This bond is one of a series of like tenor, date, and amount issued to refund outstanding indebtedness of said county of Kearney, duly surrendered and canceled, in conformity to and in full compliance with the provisions of chapter 50 Laws of 1879, approved March 8th, A. D. 1879, entitled 'An act to enable counties, municipal corporations, the boards of education of any city, and school districts, to refund their indebtedness.'

'It is hereby certified and recited that all acts, conditions, and things required to be done precedent to and in the issuing of this bond have been properly done, happened, and performed, in regular and due form as required by law; and that the total indebtedness of said county, inclusive, is within the statutory limits.'

Kearney county is one of the newly-organized counties of the state of Kansas. Its territorial limits were defined by an act of the legislature of the state of Kansas, which took effect March 23, 1889, (1 Gen. St. Kan. 1889, p. 522;) but it was organized under and pursuant to the provisions of a law of that state relating to the organization of new counties, which will be found in 1 Gen. St. Kan. pp. 535, 536, the material parts of which are as follows:

'Sec. 120. That when there shall be presented to the governor a memorial signed by four hundred householders who are legal electors of the state of Kansas, of any unorganized county, showing that there are two thousand five hundred bona fide inhabitants in such county, and that four hundred of said two thousand five hundred are householders and reside in said county, and praying for the organization of the same, accompanied by an affidavit attached thereto of at least five freeholders of such county, showing that the signatures to such memorial are genuine signatures of householders and bona fide residents within said unorganized county, residing therein for thirty days prior to the taking of such census, that affiants do believe that there are two thousand five hundred bona fide inhabitants in such county,--it shall be the duty of the governor to appoint some competent, disinterested person who is a citizen of the state and a nonresident of the county, to take the census and ascertain the number of actual bona fide inhabitants, as herein provided, of such unorganized county, who shall also act as assessor, and ascertain as nearly as possible the amount of taxable property that will be within the bounds of said unorganized county in case of its organization. The said census taker shall take and subscribe on oath that he is not interested directly or indirectly in said unorganized county, and that he will not become interested either directly or indirectly in any manner therein during his official term as said census taker, and that he will impartially and faithfully discharge the duties of his office, and that he will truly and correctly make return of the enumerated inhabitants and of the amount of property found by him within the bounds of the said unorganized county. After having qualified as aforesaid, he shall proceed to take the census of such unorganized county on duplicate schedules, by enrolling the names, ages, places of nativity, and actual place of residence, * * * of each of the bona fide inhabitants and the numbers of actual householders as herein provided residing in such unorganized county, and the number of acres of land cultivated by each. * * * The census taker shall register upon said duplicate schedules opposite the name of each legal voter his election for temporary location of county seat, which shall be taken by the governor as the definite expression of said voter, unless there shall be evidence before him that said list has been tempered with and changed. He shall also assess all property, both personal and real, at its true value, in the manner provided by law for taking the assessment in organized counties, and make due return thereof to the governor, upon appropriate schedules in duplicate, with his affidavit sworn to before the clerk of the supreme court of the state, attached thereto, that the census enumeration and assessment contained in said returns are impartial and true. If it appear by such returns that there are in such unorganized county at least two thousand five hundred actual bona fide inhabitants, as herein provided, and that four hundred of them are householders, and that there is at least one hundred and fifty thousand dollars' worth of property in excess of legal exemption, exclusive of railroad property, of which not less than seventy-five thousand dollars' worth is real estate, the governor shall appoint three persons, citizens of said unorganized county, to act as commissioners, and one to act as county clerk, to whom he shall cause to be delivered the duplicate returns aforesaid, one to act as sheriff, and when the election precincts shall have been established, at least one justice of the peace in each election precinct, and shall designate and declare the place chosen by the greatest number of legal voters to be the temporary county seat; and from and after the qualification of the county officers appointed under this act the said county shall be deemed to be duly organized: provided, that no bonds except for the erection and furnishing of schoolhouses shall be voted for and issued by any county or township within one year after the organization of such new county, under the provision of this act.'

The proviso contained in the foregoing statute which we have italicised first appeared in an act relative to the organization of new counties, which was passed on March 15, 1876. As first enacted the proviso was as follows: 'And provided further, that no bonds of any kind shall be issued by any county, township, or school district within one year after the organization of such new county, under the provisions of this act.' Laws Kan. 1876, c. 63, § 1.

On March 11, 1887, the act relative to the organization of new counties was amended in some respects, and in the amended act--being the one in force when the bonds in suit were issued--the proviso was made to read as first above quoted.

It is conceded that Kearney county did not become duly organized as a county, within the meaning of the foregoing law, until April 3, 1888; but the bonds in suit were issued on August 1, 1888,--that is to say, within four months succeeding the due organization of the county.

The act referred to in the bonds, and under and by virtue of which they purport to have been issued, is an act which was passed by the legislature of Kansas long prior to the organization of Kearney county, to wit, on March 10, 1879. Vide 1 Gen. St. Kan. 1889, pp. 167, 168. The material portions thereof are as follows: 'Every county, every city of the first, second, or third class, the board of education of any city, every township and school district, is hereby authorized and empowered to compromise and refund its matured and maturing indebtedness of every kind and description whatsoever, upon such terms as can be agreed upon, and to issue new bonds, with semiannual interest coupons attached, in payment for any sums so compromised; which bonds shall be issued at not less than par, shall not be for a longer period than thirty years, shall not exceed in amount the actual amount of outstanding indebtedness, and shall not draw a greater interest than six per cent. per annum.'

As a defense to the present action the defendant in error pleaded that the bonds sued upon were issued within one year after the temporary organization of Kearney county, and were for that reason issued without authority of law. To such plea the plaintiffs in error filed a demurrer, which was overruled by the circuit court. Thereupon the plaintiffs in error declined to plead further, and a final judgment was entered in favor of the county.

Silas B. Jones and W. H. Rossington, (Charles Blood Smith, on the brief,) for plaintiffs in error.

S. R. Peters, (J. W. Ady and J. C. Nicholson, on the brief,) for defendant in error.

Before SANBORN, Circuit Judge, and SHIRAS and THAYER, District Judges.

THAYER District Judge, after stating the case as above, .

The first question presented for our consideration is whether the proviso contained in the act relative to the organization of new counties (1 Gen. St. Kan. 1889, p. 536, § 120) was intended by the legislature to prohibit newly-organized counties from issuing funding...