Corning v. Board of Com'rs of Meade County, Kan.

• Decision Date: 30 April 1900
• Docket Number: 1,307.
• Citation: 102 F. 57
• Parties: CORNING v. BOARD OF COM'RS OF MEADE CO., KAN.
• Court: U.S. Court of Appeals — Eighth Circuit

102 F. 57

CORNING v. BOARD OF COM'RS OF MEADE CO., KAN.

No. 1,307.

United States Court of Appeals, Eighth Circuit.

April 30, 1900

C. F Hutchings (L. W. Keplinger, on the brief), for plaintiff in error.

S. S Ashbaugh (F. M. Davis, on the brief), for defendant in error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

SANBORN Circuit Judge.

This is an action upon coupons cuts from railroad aid bonds issued by the board of county commissioners of the county of Meade, in the state of Kansas. The defenses to them are that the county had no power to issue the bonds or the coupons because (1) the aggregate amount of the bonds-- $120,00-- exceeded the limitation prescribed by the statutes of Kansas (1 Gen.St.Kan. 1897, p. 755, Sec. 70); and because (2) the petition to the board of county commissioners to submit to a vote the proposition to issue the bonds was presented, and the notice of the election was given, within one year after the organization of the county, although the election was held, the subscription for the stock of the railroad company was made, and the bonds were issued after the expiration of that year. The facts and the statutes which condition these defenses are these: Meade county was organized on November 12, 1885. A petition for an election to vote upon the question of issuing these county bonds to the amount of $120,000 was presented to the board of county commissioners on October 27, 1886. The election was held on November 30, 1886. The board of county commissioners subscribed for the stock of the railroad company, and agreed to issue the bonds to it for this stock on December 3, 1886. The bonds were executed, dated, and delivered to the railroad company on its completion of its railroad in the county on March 15, 1888. The assessed valuation of the property of the county was such that the issue of $120,000 of bonds was in excess of the statutory limitation in 1886 and in 1887, but within the limitation in 1888.

Chapter 63 of the Laws of Kansas of 1876 provided for the organization of new counties in that state. These are the closing words of the first section of that chapter:

'And from and after the qualification of the officers appointed under this act, the said county shall be deemed duly organized, and the county seat shall be deemed temporarily located; 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.'

Chapter 90 of the Laws of Kansas of 1886, which took effect on February 23, 1886, amended the closing words of section 1 of chapter 63 of the Laws of 1876 so that they read:

'And from and after the qualification of the officers appointed under this act the said county shall be deemed organized and the county seat shall be deemed temporarily located; provided further, that none of the provisions of this act shall prevent or prohibit the county of Kiowa, or any township or school district therein, from voting bonds at any time after the organization of said county. 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.'

Chapter 128 of the Laws of 1887, which took effect on March 11, 1887, so amended the last proviso of the section that it reads:

'Provided, that no bonds, except for the erection and furnishing of school houses shall be voted for and issued by any county or township within one year after the organization of such new county under the provisions of this act.'

Chapter 107 of the Laws of Kansas of 1876 authorizes any county in the state to issue bonds in limited amounts to aid in the construction of railroads on a favorable vote of its electors, and provides that no such bonds shall be issued until the railroad shall be completed and in operation through the county voting the bonds, or to such point in the county as may be set forth in the petition for the submission of the proposition to issue them to the vote of the electors.

The defense that the bonds are void because their aggregate amount is in excess of the statutory limitation rests upon the proposition that the limitation is to be measured by the assessed valuation of the property of the county in the year in which the bonds were voted (1886), and not in the year in which they were issued (1888). The position is untenable, and the question it seeks to present is no longer open to discussion in this court. The assessed valuation by which the statutory limitation is to be measured is the last assessed valuation of the property of the county before the bonds are issued, not the last one before they are voted or directed to be issued. Dudley v. Board, 49 U.S.App. 336, 346, 26 C.C.A. 82, 87, 80 F. 672, 677; Rathbone v. Board, 49 U.S.App. 577, 590, 27 C.C.A. 477, 484, 83 F. 125, 132; Board of Education of City of Huron v. National Life Ins. Co. of Montpelier, 36 C.C.A. 278, 281, 94 F. 324, 328; Board v. Sutliff, 38 C.C.A. 167, 97 F. 270, 281.

The defense that the county was without power to issue the bonds because the petition for the submission of the question of their issue was presented to the county commissioners, and the notice of the election was given, within one year after the organization of the county, although the vote was taken, the subscription was made, and the bonds were issued after the expiration of the year, is supported by two lines of argument. It is said that the powers of a new county are limited during the first year of its existence, and that it is without authority to take any step toward the issue of bonds, regardless of the prohibition in chapter 63 of the Laws of 1876 and its various amendments. It is also argued that the prohibition of the issue of bonds within the first year of its existence is a prohibition of all preliminary proceedings leading to their issue. Let us consider these contentions in their order.

A county duly organized under chapter 63 of the Laws of Kansas of 1876 has during the first year of its existence all the powers of a county more than one year of age which are necessary to the conduct of the business of the county and of its people. Speer v. Board, 60 U.S.App. 38, 32 C.C.A. 101, 88 F. 749. The act for the organization of counties does not, it is true, confer upon any county organized under it the power to issue bonds to aid in the construction of railroads during the first year of its existence. Neither does it confer this power upon a county after it has been organized for a year. No county, whatever its age, derives its authority to issue railroad aid bonds from the act for the organization of counties. That power is conferred by the act to enable counties, townships, and cities to aid in the construction of railroads found in chapter 107, Laws Kan. 1876, and 1 Gen.St.Kan. 1897, p. 755. And under that act the same power is given to counties in the first as in any other year of their existence. The conclusion is inevitable that a county has and may exercise every power and may do every act precedent, or relating to the issue of railroad aid bonds in the first year of its existence that it may in any subsequent year, excepting only the act prohibited by the last proviso to section 1 of the act for the organization of new...