State v. Pierce

• Decision Date: 09 December 1893
• Citation: 35 P. 19,52 Kan. 521
• Parties: THE STATE OF KANSAS v. D. L. PIERCE et al
• Court: Kansas Supreme Court

35 P. 19

52 Kan. 521

THE STATE OF KANSAS v. D. L. PIERCE et al

Supreme Court of Kansas

December 9, 1893

Appeal from Barber District Court.

IN 1891, the legislature passed the following act:

"SECTION 1. That the county commissioners of Barber county, Kansas are hereby authorized to purchase at their true value any and all bridges built upon the public highways of said county by any township or private person or persons, and pay for the same in county bonds. Said bonds not to draw over 6 per cent interest, and made payable not under 10 years; or said bonds may be sold at not less than par, and the proceeds applied for the payment of said bridges." (Laws of 1891, ch 61.)

On the 7th day of July, 1892, the board of county commissioners of Barber county made and entered of record the following order:

"Under and by virtue of the power and authority vested in the board of county commissioners of Barber county, Kansas, by an act of the legislature approved March 6, 1891, being an act entitled 'An act concerning bridges in Barber county Kansas,' it is hereby ordered by said board as follows: That the following-named and described bridges, situate and being in said county of Barber, be, and they are hereby, purchased at the prices and sums following, that is to say: The bridge across the Medicine river near the town of Kiowa, and known as the 'Kiowa bridge,' at the sum of $ 2,300; the bridge across Medicine river near the town of Sun City, and known as the 'Sun City bridge,' at the sum of $ 2,600; and the bridge across Medicine river near the town of Lake City, and known as the 'Lake City bridge,' at the sum of $ 2,680.93.

"And whereas, the first two named bridges are township bridges for which the bonds of the respective townships are outstanding and unpaid, it is ordered, that hereafter the payment of such bonds, and accruing interest hereon, shall be assumed and provided for by the county, according to the true tenor and effect of such bonds, and the treasurer of said county is hereby authorized and directed to make such payment out of such funds as may be provided for that purpose.

"And whereas, the Lake City bridge was built by private persons, the amount of whose subscription and payments thereto, respectively, is satisfactorily proven and shown to the board to be as follows: [Here appear, in the order, the names of 78 persons who had subscribed various sums toward the building of the Lake City bridge, aggregating in all $ 2,680.93.] And it is therefore ordered, that warrants be drawn and issued and delivered to such persons for said sums respectively; and hereafter said bridge shall be treated as the property of the county, and cared for accordingly, or that bonds of the county be issued for said Lake City bridge.

D. L. PIERCE.

JAMES STRANATHAN.

"Attest:

F. A. LEWIS, County Clerk."

J. M. Reagin, one of the commissioners, voted against the purchase of the bridges and also against the order adopted by a majority of the board. Before the order was made, Lyman W. De Geer, the county attorney of Barber county, filed with the county clerk of that county his written opinion, which concluded as follows:

"That you may avoid personal liability, and that the county may avoid the expense of future litigation, I respectfully submit this opinion, and briefly recapitulate as follows:

"1. You can only pay up to an amount equal to the true value of the bridges.

"2. You can only purchase such as were built on the public highways of Barber county.

"3. You can only pay for them in bonds, or the proceeds of bonds, to be issued by you for that purpose, and sold at not less than par.

"4. Said bonds can only be issued by you when 'ordered by a vote of the legal electors' of Barber county.

"5. A board of county commissioners can only issue bonds 'in a sum not greater than 5 per cent., inclusive of all other indebtedness, of the taxable property of their county.'"

This opinion was read to the board before action by it, and, before the order was made, J. M. Reagin, commissioner of the first district, moved that the opinion be accepted. This motion was voted down, J. M. Reagin being the only commissioner voting in favor thereof. Thereupon D. L. Pierce, commissioner from the third district of the county, and the chairman of the board of county commissioners, moved that the county buy the Lake City bridge, and issue county scrip to pay for the same. This motion was seconded by James Stranathan, county commissioner from the second district. The motion was carried by the vote of Pierce and Stranathan, but J. M. Reagin, one of the county commissioners, voted against the motion. About this time an order of injunction in the case of The State of Kansas, ex rel., v. D. L. Pierce, James Stranathan, and J. M. Reagin, the board of county commissioners, was personally served upon each member, prohibiting them from purchasing any bridge in Barber county, or from paying for any bridge with county scrip, warrants, or bonds; and also prohibiting them from taking any steps towards the purchase of any bridge for the county. The next morning, July 8, at the request of D. L. Pierce, the county clerk commenced filling up and signing scrip for the various subscribers for the Lake City bridge. An order or warrant upon the county treasurer was signed in favor of R. Lake for $ 1,738.68. D. L. Pierce had a written order from R. Lake for this warrant, and the county clerk delivered the same to him for Mr. Lake. It was taken by Pierce out of the office, and delivered to Lake. There were also nine other orders or warrants in favor of persons appearing upon the subscription list of the Lake City bridge filled in by the county clerk, and signed by D. L. Pierce, as chairman of the board of county commissioners, but at the time of the trial these were in the office of the county clerk, and had not been delivered to any person. The only order or warrant upon the county treasurer that was actually issued and delivered, under the order of the 7th of July, 1892, was the one in favor of R. Lake for $ 1,738.68. On the 30th day of July, 1892, Lyman W. De Geer, as county attorney of Barber county, filed in the district court of that county an information charging D. L. Pierce and James Stranathan, members of the board of county commissioners of the county, with certain misdemeanors in office. The information contained 11 counts. The first count of the information charged that the defendants unlawfully and fraudulently committed a fraud in their official capacity, and under color of their offices, as members of the board of county commissioners, in unlawfully and fraudulently allowing greater sums on accounts, claims and demands against Barber county than the amounts actually due thereon, dollar for dollar, according to the legal and ordinary compensation for prices and services rendered, salaries and fees of officers, and materials furnished, to wit: Claims in favor of R. Lake, J. H. Vinson, T. S. Updyke & Co., Noah & Buck, John Andrews, James Nurse, J. K. Garton, H. M. Buck, Charles D. Nelson, A. Feltner, and other parties. It was alleged that said accounts were allowed in an order made on the 7th day of July, 1892, by the board, said order being one to purchase the Lake City bridge. The second, third, fourth and fifth counts of the information charged the defendants with allowing accounts in favor of R. Lake, J. H. Vinson, T. S. Updyke & Co., and Noah & Buck, respectively, without said accounts being made out in separate items, and without having been verified by affidavit setting forth that the same were just, correct, and remained due and unpaid. The sixth, seventh, eighth, ninth, tenth and eleventh counts charged the unlawful issuance of county warrants to R. Lake, A. Feltner, C. D. Nelson, H. M. Buck, J. K. Garten, and James Nurse, respectively, without an account containing the several items thereof, verified by affidavit setting forth that the same were just, and remained due and unpaid, and that the amounts claimed thereon were actually due, according to the legal and ordinary price of services rendered and materials furnished, having first been presented to the board of county commissioners. Defendants filed a motion to quash the information upon various grounds, which was overruled by the court and excepted to at the time. A trial was had at the May term, 1893, of the court, and Pierce was convicted on the 11 counts of the information, and Stranathan upon the first five counts of the information. Motions for a new trial and in arrest of judgment were made, which were overruled and excepted to, and the defendant Stranathan was sentenced to pay a fine of $ 50 on each of the first five counts of the information, and Pierce was sentenced to pay a fine of $ 50 on each of the 11 counts of the information. Both defendants appeal.

Judgment reversed as to James Stranathan, and judgment against D. Pierce modified, affirming his sentence upon sixth count, and reversing all other sentences.

E. Sample, R. A. Cameron, and Chester I. Long, for appellants.

John T. Little, attorney general, Lyman W. De Geer, county attorney, and C. W. Ellis, for The State.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

I. It is contended that chapter 61 of Laws of 1891 may be construed to permit the county commissioners of Barber county to purchase the bridges upon the highways of that county for county warrants or orders, and also that "true value" may be interpreted to mean the original cost or subscription price of the bridges. It is expressly provided therein that the bridges are to be paid for in county bonds or their proceeds, the bonds not to draw over 6 per cent. interest, and payable not under 10 years. Chapter 61 also expressly provides that the...