Felix v. The Board of County Commissioners of The County of Wallace

• Decision Date: 10 November 1900
• Docket Number: 11,551
• Citation: 62 P. 667,62 Kan. 832
• Parties: OSCAR FELIX v. THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF WALLACE
• Court: Kansas Supreme Court

62 P. 667

62 Kan. 832

OSCAR FELIX v. THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF WALLACE

No. 11,551

Supreme Court of Kansas

November 10, 1900

Decided July, 1900.

Error from Saline district court; R. F. THOMPSON, judge.

STATEMENT.

IN July, 1893, a petition was presented to the board of county commissioners of Wallace county, requesting them to make an order placing a bounty of one dollar each on the scalps of wolves and coyotes, and five cents each on the scalps of rabbits and gophers. The order was made as prayed for, with a provision that the county clerk should issue a receipt for the scalps, which receipt should be negotiable at any of the stores for ninety cents on the dollar. The citizens realizing that the rewards offered would stimulate the people to kill large numbers of the animals named, and believing that the liability thus incurred would, if paid from the fund raised by the levy for current expenses, interfere with the successful administration of county affairs for a time presented a petition to the board, at a meeting held later in July, asking that a special election be called to authorize a special levy to raise funds to pay said bounties. The prayer of the petitioners was granted, and an election was held August 10, 1893, at which the following proposition was submitted to the voters of Wallace county.

"Shall the county commissioners be authorized to make an additional levy of ten mills, over and above what they are authorized by law to levy for county purposes, to meet the extra expense incurred by the bounties placed on wolf, coyote, gopher and rabbit scalps?"

A majority of the votes were cast in favor of the proposition and the board ordered the additional levy of ten mills extended on the tax-roll.

Chapter 90 of the Laws of 1889 (Gen. Stat. 1897, ch. 27, §§ 173-176; Gen. Stat. 1899, §§ 1790-1793) was then in force, authorizing a bounty to be paid by counties upon wolf, coyote, wild-cat, fox and rabbit scalps. There was also, in the Laws of 1871, an act entitled "An act to protect fruit-trees, hedge plants, and fences," being chapter 87, which authorized the county commissioners of any county to pay a bounty on gopher scalps taken in the county, not to exceed twenty cents for each scalp. In 1895, at the suit of the receivers of the Union Pacific Railway Company against the commissioners of Wallace county, to enjoin the tax levied to pay such bounties, the law of 1871 above mentioned was held unconstitutional and void, for the reason that the subject of the act was not clearly expressed in its title, and that, the commissioners having included in their order an offer of bounty on gopher scalps without lawful authority so to do, the whole tax was void. (Clark v. Comm'rs of Wallace Co., 54 Kan. 634, 39 P. 225.) Soon after this decision was made the legislature passed an act, as follows:

"An act legalizing the action of the board of county commissioners of Wallace county in issuing certificates and county warrants for scalps of gophers, rabbits, wolves, and coyotes, directing warrants to be issued to the holders and owners of said certificates, declaring the same to be county charges, and directing and authorizing the warrants already issued and to be issued on such outstanding certificates shall be payable out of the general fund of the county, and repealing all laws and parts of laws, so far as the same may be inconsistent with or repugnant to the provisions of this act.

"Be it enacted by the Legislature of the State of Kansas:

"SECTION 1. Whereas, under the provisions of an act entitled 'An act to protect fruit-trees, hedge plants, and fences,' the board of county commissioners of Wallace county offered a bounty for gopher scalps, and in pursuance of said action of said board a number of gophers were killed and certificates given by the county clerk pursuant to said act, and upon some of which certificates and warrants have been passing from hand to hand; and whereas, under the provisions of an act entitled 'An act authorizing a bounty upon wolf, coyote, wild-cat, fox and rabbit scalps, and to repeal chapter 73, Laws 1885, and all other laws in conflict herewith,' the board of county commissioners of Wallace county offered a bounty for the scalps of animals enumerated in said act, and in pursuance of said action a number of said animals were killed and county warrants issued for, and which warrants have been passing from hand to hand: it is hereby declared the duty of said board to issue county warrants for the amount of such certificates now issued and outstanding, and all said warrants so issued and herein authorized to be issued be and the same are hereby legalized and hereby made county charges, and shall be and are made payable out of the general fund of the county.'" (Laws 1895, ch. 358.)

In September, 1896, the plaintiff, Oscar Felix, brought this action in the district court of Wallace county against the board of county commissioners of that county to recover the sum of $ 3650.25 upon receipts for scalps and warrants either issued or assigned to him. The venue was changed to Saline county, where the action was tried. The district court held against the plaintiff below so far as his claim was based upon the bounty offered for gopher scalps, and also denied him judgment upon such receipts and warrants as were issued for rabbit and gopher scalps which failed to show the separate number of each. From such determination he has come to this court by proceedings in error.

Judgment affirmed.

Bond & Osborn, Benson & Smart, and Garver & Larimer, for plaintiff in error.

B. G. Hurlburt, county attorney, A. L. Williams, N. H. Loomis, and R. W. Blair, for defendants in error.

OPINION

SMITH, J.:

Does chapter 358 of the Laws of 1895, set out in the statement, have the curative effect of validating the unwarranted acts of the board of county commissioners of Wallace county in issuing warrants in evidence of public indebtedness for bounties offered for gopher scalps, make them valid obligations, and fix the amount of the same as a charge upon the county? This is the question now before us.

When the county commissioners made the order offering a bounty on gopher scalps they based their authority so to do on an unconstitutional law. An act of the legislature wholly void can confer no right, power, or authority. (Cooley, Const. Lim. 222.) Whatever labor was done or services performed for the county in the matter of killing gophers, pursuant to the reward offered which was authorized in the body of said law could not be recovered for upon the ground that the county received a benefit for which it justly ought to pay, for the reason that there was a total lack of capacity in the board of commissioners to incur an obligation of the kind mentioned. (Hovey v. Comm'rs of Wyandotte Co., 56 Kan. 577, 44 P. 17.) The plaintiff in error, as a holder of the warrants in suit, cannot recover thereon unless the curative law of 1895 supplies, by its retroactive operation, that power which the commissioners lacked in the first instance, and unless the provisions of the healing act cover matters within the range of...