The Atchison v. The Board of County Commissioners of Kearny County

• Decision Date: 10 April 1897
• Docket Number: 9294
• Citation: 58 Kan. 19,48 P. 583
• Court: Kansas Supreme Court
• Parties: THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. THE BOARD OF COUNTY COMMISSIONERS OF KEARNY COUNTY

48 P. 583

58 Kan. 19

THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. THE BOARD OF COUNTY COMMISSIONERS OF KEARNY COUNTY

No. 9294

Supreme Court of Kansas

April 10, 1897

Decided January, 1897.

Error from Kearny District Court. Hon. A. J. Abbott, Judge.

Judgment affirmed.

A. A Hurd and Stambaugh & Hurd, for plaintiff in error.

G. M Kelso, County Attorney, and Peters & Nicholson, for defendant in error.

OPINION

DOSTER, C. J.

Kearny County was created in 1887, by an act of the Legislature, in the usual form, defining its boundaries. § 4, ch. 61, Laws 1887. At the same session an act was passed which sought to attach this county to another for judicial purposes. The title of this act and the act itself are in the following words:

"AN ACT to attach the counties of Haskell and Kearny to Finney County, and the county of Stanton to the county of Hamilton, and the county of Garfield to Hodgeman County, and the county of Grant to Stevens County, and the county of Gray to Ford County, for judicial purposes."

"SECTION 1. The county of Haskell is hereby attached to the county of Finney, the county of Grant is hereby attached to the county of Stevens, the counties ties of Stanton and Kearny are hereby attached to the county of Hamilton, the county of Garfield is hereby attached to the county of Hodgeman, and the county of Gray is hereby attached to the county of Ford, for judicial purpose."

Kearny County became, by the act creating it, what is known as an "unorganized county." By various statutory provisions, not necessary to quote here, an unorganized county, when attached to an organized one for judicial purposes, becomes a municipal township of the county to which it is attached. It was assumed that the act above set forth attached Kearny to Hamilton County for judicial purposes, and that it thereby became Kearny Township of that county. On the strength of this assumption, township officers were elected, and township indebtedness was contracted, the validity of which is one of the questions in this case. In March, 1888, by proceedings duly had under the general law, Kearny County became an organized county. The Governor appointed, as the temporary officers, W. J. Price, S. R. Hibbard and H. A. W. Corfield, county commissioners, J. H. Waterman, county clerk, and R. F. Thorne, sheriff; upon whose qualification according to law the organization became complete. An election for the full set of county officers, including, of course, successors to the provisional appointees, was called for July 21, 1888. These provisional officers refused to canvass all the returns of this election, and refused to make any determination or record of the result. An alternative writ of mandamus was issued by the judge of the district court, commanding them to make such canvass and determination, or show cause for not doing so. This writ was ignored by them. It was followed by a peremptory writ, which was likewise ignored, and the returns were not fully canvassed and a record of the result made until the following January, when these duties were performed by the officers elected at the general election in November preceding. During this time, and until after the election in the following November, the temporary officers continued to hold and act by virtue of their appointment by the Governor. During the period of their incumbency, from March to November, 1888, they issued many thousand dollars of county warrants. The record before us shows that, up to the first of October, 513 of these warrants were issued, twenty-two of which, aggregating eight thousand dollars, have passed by assignment to plaintiff in error and are involved in this suit. An action upon these warrants was begun by plaintiff in error, as plaintiff below, which resulted in an adverse judgment, to reverse which this proceeding is instituted.

A county warrant is not a negotiable instrument. It cannot pass to innocent holders, as do municipal bonds, free from defenses. Comm'rs of Leavenworth Co. v. Keller, 6 Kan. 510-518; Wall v. Monroe Co., 103 U.S. 74, 26 L.Ed. 430. A general objection made to the maintenance of an action on all these warrants is, that they have never been presented to the county treasurer for redemption, and payment thereof has never been refused. Such demand for payment is a prerequisite to a suit upon the warrants. The whole scheme of county organization and administration proceeds upon the theory of payment of demands only after they have been audited by the commissioners and presented to the treasurer. Elaborate provisions as to form and verification of accounts, time of presentation and allowance thereof and issuance and payment of warrants thereon, are to be found in the statutes. True, it is nowhere said that an action may not be maintained upon a county warrant before presenting it for payment, nor is it said that an action may not be maintained against a county before presentation of the account to the commissioners for their allowance; but the necessary implication from the various provisions which mark out a procedure for both claimant and officer is, that an account must be presented for allowance and, if allowed, the warrant issued thereon must be presented for payment. To subject a county to liability upon demands never presented for settlement or warrants never presented for payment would be intolerable. The general rule between debtor and creditor is, that, where a place of payment has been specified in the contract or provided by law, demand and payment must be made there; and this rule has been enforced both in the case of private obligations and of municipal securities like those in suit. Varner v. Nobleborough, 2 Greenl. (Me.) 112; Pease v. Cornish, 19 Me. 191; Dalrymple v. Whitingham, 26 Vt. 345; Robinson v. Cheney, 17 Neb. 673, 24 N.W. 378.

It may be said, however, that these warrants were presented for payment. Not so. They were presented to one W. P. Loucks, who styled himself county treasurer, but in every such case presentation was made during the temporary and formative period of the county. Not until its inchoate political condition had ripened into a status of permanent organization, was Kearny County entitled to a treasurer.

"At that time the county had no county attorney, no clerk of the district court, no county treasurer, no register of deeds, no coroner, no superintendent of public instruction, no county surveyor, and no probate judge; and of course nothing could be done in the county requiring the services of such officers. The organization at most, is only a temporary or provisional organization, and for special and limited purposes, and the completed and perfected organization must be brought into existence at some time in the future." The State ex rel. v. Haskell Co., 40 Kan. 67, 68.

The only officers allowed to a county during this period are a board of county commissioners, a clerk, and a sheriff. These are appointed by the Governor. By what authority Mr. Loucks assumed to act as treasurer, we do not know. The record is silent as to that. Certain it is, there was no law under which he could rightfully act, or under which any one could act, until after the election of July 21, the canvass of the returns and determination of the result, and the succession of the provisional by the permanent organization. Except the election, with its unascertained and barren result, none of these events transpired until after the form of presenting these warrants to this self-created and intrusive functionary had been gone through.

When the different warrants sued upon are examined in detail, the invalidity of all of them, upon more specific grounds becomes apparent. Two of them, aggregating $ 1,457.94, were issued "in redemption of Kearny Township warrants." The question of the validity of these township warrants, and, per consequence, of the county warrants issued in redemption of them, rests upon the act of 1887 attaching Kearny County for "judicial purposes," or, summarizing...