Speer v. Board of Com'rs of Kearney County

• Decision Date: 20 June 1898
• Docket Number: 1,003.
• Parties: SPEER v. BOARD OF COUNTY COM'RS OF KEARNEY COUNTY, KAN.
• Court: U.S. Court of Appeals — Eighth Circuit

88 F. 749

SPEER v. BOARD OF COUNTY COM'RS OF KEARNEY COUNTY, KAN.

No. 1,003.

United States Court of Appeals, Eighth Circuit.

June 20, 1898

Frederic D. Fuller and F. P. Lindsay (George H. Whitcomb, on brief) for plaintiff in error.

Samuel R. Peters (M. G. Kelso and John C. Nichol for defendant in error.

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

SANBORN Circuit Judge.

The questions presented by this case relate to the validity of certain county warrants issued by the board of county commissioners of Kearney county, in the state of Kansas, in the year 1888. These questions are raised by exceptions to instructions given to the jury to the effect that the plaintiff in error, H. C. Speer, was not entitled to recover upon the warrants on the evidence in the record at the close of the trial. Speer was a bona fide purchaser of the warrants in the open market. Counsel for the county present many propositions in support of the instructions of the court. Some of them challenge the validity of all the warrants. Others attack specific warrants only. Some were disregarded or overruled, while others were sustained by the court below. We can state them most clearly, and dispose of them most satisfactorily and speedily, by considering them seriatim.

The first proposition of the counsel for the county is common to all the warrants, and it was overruled by the court below. It is that the board of county commissioners had no power to issue these warrants, because it was a temporary board appointed by the governor of Kansas under the act of the legislature of that state relating to the organization of new counties. Gen. St. Kan. 1889, pars. 1577-1594. That question however, has been considered and decided against the county by this court in Board v. McMaster, 32 U.S.App. 367, 370, 15 C.C.A. 353, 355, and 68 F. 177, 179; and, after a careful review of the arguments on the subject, we are constrained to adhere to the views there expressed.

The statutes of Kansas provide that:

'The board of county commissioners of each county shall have power, at any meeting: * * * Second, to examine and settle all accounts of the receipts and expenses of the county, and to examine and settle and allow all accounts chargeable against the county; and when so settled, they may issue county orders therefor, as provided by law. ' Gen. St. Kan. 1889, par. 1630.

The act relating to the organization of new counties empowers the governor, upon a proper memorial and upon adequate returns showing the population and the value of the property in the county, to appoint three persons, citizens of said unorganized county, to act as commissioners, provides that, 'from and after the qualification of the county officers appointed under this act, the said county shall be deemed to be duly organized,' and authorizes these commissioners to divide the county into townships, to prepare a polling list of the legal voters in each township, to give notice of an election for the choice of township and county officers and of the permanent county seat of the county, and to canvass the votes at the election. Gen. St. 1889, pars. 1577, 1582, 1584, 1587.

It is manifest from these provisions that duties were imposed upon, and powers were vested in, these commissioners, whose discharge and exercise required them to incur indebtedness on behalf of the new county; and as, from the nature of the case, such a county could not have funds on hand with which to discharge such a debt, the inference is natural and logical that it was the purpose of the legislature to empower the commissioners, not only to incur debts, but to allow such claims and to issue such county warrants as were requisite to enable them to discharge the duties imposed upon them. When, in addition to this consideration, the express provision of the act that, upon the qualification of the temporary county officers, the county shall be deemed duly organized, is noticed, this inference becomes irresistible, and there is no logical escape from the conclusion that the temporary board of county commissioners was invested with the same powers as those given to the permanent board to incur debts, to allow claims, and to issue county warrants for legitimate county expenses.

Another proposition urged to support the instruction of the court to return a verdict for the county is that the action upon all these warrants was premature, because they were not presented to any county treasurer of the county for payment before the action was commenced. The fact is that they were presented during the year 1888, after the appointment and qualification of the temporary county commissioners, and before the election of any permanent officers of the county, to one W. P. Loucks, who was acting as county treasurer, and who indorsed upon them the fact and the dates of presentation, together with the words: 'Not paid for want of funds. W. P. Loucks, County Treasurer. ' Conceding, but not deciding, that an action upon a county warrant, before it is presented to the county treasurer for payment, is prematurely brought (Dill. Mun. Corp. Sec. 501; Daniel, Neg. Inst. Secs. 430, 908; City of Central v. Wilcoxen, 3 Colo. 566; Varner v. Inhabitants of Nobleborough, 2 Greenl. 121; Benson v. Inhabitants of Carmel, 8 Greenl. 112; Pease v. Inhabitants of Cornish, 19 Me. 191; Dalrymple v. Whitingham, 26 Vt. 346), and that Loucks was not the county treasurer of this county when these warrants were presented to him (Atchison, T. & S.F.R. Co. v. Board of Com'rs of Kearney Co. (Kan. Sup.) 48 P. 583, 585), there are two reasons why the judgment against the plaintiff cannot be sustained upon this ground. The first is that the only instruction which this defense would warrant was an instruction that the jury should find that the action was prematurely brought, because payment had not been demanded of the county treasurer, and the only judgment which this defense would justify was a judgment for the defendant, without prejudice to a subsequent action on the same warrants, while the instruction given was that the plaintiff could not recover, and the judgment rendered was a general judgment for the defendant on the merits. The defendant had joined several pleas in bar with this plea in abatement in its answer; and the general instruction and judgment for the defendant, without specifying upon which defense it was based, renders all the issues presented in the case res adjudicata, and constitutes a bar to all future actions upon these warrants. A general judgment for the defendant, which does not clearly show that it rests solely upon a plea that the action was prematurely brought, cannot be sustained by the sufficiency of that plea and of the proof to sustain it, where the plea in abatement is joined with pleas in bar in the same action. House v. Mullen, 22 Wall. 42, 46; Four Hundred and Twenty Min. Co. v. Bullion Min. Co., 9 Fed.Cas. 592, 599 (No. 4,989), 3 Sawy. 634; Sheldon v. Edwards, 35 N.Y. 279, 287, 288; U.S. v. Pine River Logging & Improvement Co., 49 U.S.App. 24, 35, 24 C.C.A. 101, 107, and 78 F. 319, 325. The second reason why the judgment cannot be sustained on this ground is that this objection was not presented to the court below for decision, and was not considered either by the court or by counsel on either side at the trial. It is plain that the objection has little, if any, merit, and that it could easily have been removed if it had been seasonably called to the attention of the plaintiff. He could have dismissed this action, made his demand, and brought another. Perhaps he could have proved that a demand had been made of the county treasurer after the permanent officers of the county had been elected. No statute of the state has been called to our attention which makes a presentation or a demand of payment of these warrants an indispensable prerequisite to the maintenance of an action upon them. If a demand of their payment was necessary, that necessity grew out of the fact that, under the general rules of law, the drawer of a draft, check, or order is not liable to suit upon it until after its presentation to the drawee for payment; and if, at any time before this action was commenced, the holder of these warrants formally or informally asked the county treasurer to pay them, and he refused, such a request undoubtedly removed the objection. Pease v. Inhabitants of Cornish, 19 Me. 191, 193. In Kelley v. Mayor, etc., 4 Hill, 263, 266, it was held that if it affirmatively appeared that the municipality had not suffered, and could not suffer, any loss from want of presentment or of notice of nonpayment of such a warrant, neither was necessary. It is hardly possible that the county of Kearney can have suffered any loss from the failure to present and demand the payment of these warrants. It is very probable that it could have found and paid them, if it had been anxious to do so. A defendant cannot be permitted to present for the first time in an appellate court an objection to the plaintiff's recovery so easily removed, which he passed in silence at the trial.

It is contended that the warrants are void, and that the plaintiff was not entitled to recover upon them, because they were issued in violation of the limitation prescribed by paragraphs 1886 and 1887, Gen. St. Kan. 1889. Paragraph 1886 provides that the board of county commissioners shall not levy upon the taxable property of the county for current expenses of the county for any one year in excess of 1 per cent. upon a valuation of $5,000,000 and under; and paragraph 1887 forbids a board of county commissioners or county clerk to issue county warrants or orders in any one year to a greater amount than the amount of the county tax levied in the same year to defray county...