The Commerce Trust Company v. Paulen

• Decision Date: 03 November 1928
• Docket Number: 28,393
• Citation: 271 P. 388,126 Kan. 777
• Parties: THE COMMERCE TRUST COMPANY, Plaintiff, v. BEN S. PAULEN, as Governor of the State of Kansas, et al., Defendants
• Court: Kansas Supreme Court

271 P. 388

126 Kan. 777

THE COMMERCE TRUST COMPANY, Plaintiff, v. BEN S. PAULEN, as Governor of the State of Kansas, et al., Defendants

No. 28,393

Supreme Court of Kansas

November 3, 1928

Decided July, 1928.

Original proceeding in mandamus.

Judgment rendered.

SYLLABUS

SYLLABUS BY THE COURT.

1. STATES--Duplicates for Lost or Destroyed Bonds--Statute Construed. The use of the terms "coupons thereto attached" and "coupons attached" in R. S. 10-704 in connection with the furnishing of an indemnifying bond before the issuance of duplicates for lost or destroyed warrants or bonds, as authorized in R. S. 10-701 and 10-702, is not such a part of the authorization as to limit the general terms of those two prior sections of the same act.

2. STATUTES--Construction. The maxim, Expressio unius est exclusio alterius, is a well-recognized principle to assist in arriving at the real intention of the lawmakers when it is not otherwise manifest. It applies mostly to matters and things that are disconnected, and its application should produce a rational interpretation and support a policy which may be reasonably supposed to have dictated the enactment.

3. STATES--Duplicates for Lost or Destroyed Bonds--Detached Coupons. The language, purpose and intention of R. S. 10-701, 10-702 and 10-704 considered and held not to justify the exclusion of detached coupons from the provisions of the act authorizing the issuance of duplicates therefor when lost or destroyed.

A. L. Berger, of Kansas City, for the plaintiff.

William A. Smith, attorney-general, and W. C. Ralston, assistant attorney-general, for the defendants.

OPINION

HUTCHISON, J.:

This is an original proceeding in mandamus to compel the issuance of duplicate coupons to take the place of coupons formerly issued, which have since been lost or destroyed while owned by the plaintiff. The answer of the defendants denies that the plaintiff is entitled to the relief prayed for, and that the writ states a cause of action and prays that the action be dismissed.

It is stipulated that the petition and application correctly state the facts. The only question involved is whether a coupon detached from the bond to which it was originally attached comes within the provisions of article 7 of chapter 10 of the Revised Statutes of 1923, which authorizes the issuance of duplicate bonds and warrants under certain circumstances and on certain conditions, all of which are admitted to have been complied with in this case. The coupons in question are for six months' interest due on $ 1,000 bonus bonds of the state of Kansas, due and payable January 1, 1928, which were clipped and sent to Topeka, Kan., for collection a few days prior to the date of their maturity. They have been lost or destroyed in the transmission. The following is a copy of one of the coupons, except the signatures of the officers. All others are exactly identical, except each coupon is from a different numbered bond.

"No. 1. On the first day of January, 1928, the state of Kansas will pay to bearer at the office of the state treasurer at Topeka, Kan., or at its subfiscal agency in New York, the sum of twenty dollars ($ 20), being six months' interest then due on its bond dated July 1, 1927, numbered 29748. $ 20.00.

Governor of the State of Kansas.

Secretary of the State of Kansas.

Auditor of the State of Kansas."

R. S. 10-701, 10-702 and 10-704 are as follows:

"That whenever any bond or warrant of the state or territory of Kansas, or any county, city, township, or school district, shall become so far mutilated as to become unfit for circulation, or shall be lost or destroyed, a duplicate thereof may be issued by the officer authorized by law to issue such bonds or warrants, under the regulations and restrictions hereinafter prescribed."

"Such duplicate shall correspond, in number, date, amount and coupons, with the original bond or warrant, and shall have indorsed on its face, and on the face of each coupon, by the officer issuing the same, the word 'Duplicate,' together with the date of its issuance."

"A duplicate for a lost or destroyed bond or warrant shall not issue until there shall have been filed with the proper officer an affidavit of some person knowing the facts, setting forth the ownership of such bond, the description thereof, the number of coupons thereto attached, and the manner of its loss or destruction, and until there shall have been executed and filed with the same officer an indemnifying bond, with securities to be approved by such officer, in a sum equal to double the amount of such warrant or bond and the coupons attached, conditioned that the parties thereto shall pay all damages which the state, county, city, township or school district, as the case may be, may sustain if compelled to pay such lost or destroyed bonds or coupons?

Does this statute authorize the issuance of duplicate coupons for lost or destroyed detached coupons? Plaintiff insists that it does and cites numerous cases holding that detached coupons are written contracts for the payment of definite sums of money on definite dates, that they are separate promises, are negotiable, and are subject to separate actions after maturity without regard to the production or ownership of the bonds from which they had been detached. Plaintiff also relies upon the decision in the case of National Bank v. City of St. John, 117 Kan. 339, 230 P. 1038, as decisive of this case. While the reasoning and some of the language is strongly in line with the views and contentions of the plaintiff, yet the exact question involved in that case was whether the word "may" in the statute above quoted should be considered as "must," or...