Waters v. Trovillo

• Decision Date: 10 October 1891
• Court: Kansas Supreme Court
• Parties: WATERS, CHASE & TILLOTSON v. H. T. TROVILLO, as Chairman of the Board of Commissioners of Wichita County, et al

27 P. 822

47 Kan. 197

WATERS, CHASE & TILLOTSON v. H. T. TROVILLO, as Chairman of the Board of Commissioners of Wichita County, et al

Supreme Court of Kansas

October 10, 1891

Decided July, 1891.

Original Proceeding in Mandamus.

THE opinion, filed October 10, 1891, contains a sufficient statement of the case.

Recommended that writ be refused.

Waters Chase & Tillotson, plaintiffs, for themselves.

W. B Washington, county attorney, and A. P. Barker, for defendants.

STRANG C. All the Justices concurring.

OPINION

STRANG, C.:

This is a proceeding in mandamus to compel the chairman of the board of county commissioners and the county clerk of Wichita county to issue to the plaintiffs the warrant of said county in the sum of $ 6,000. The plaintiffs claim they entered into the following contract with the commissioners of Wichita county:

"THIS CONTRACT, Entered into this 5th day of September, 1888, by and between Waters, Chase & Tillotson, attorneys at law, of Topeka, Kan., parties of the first part, and the board of county commissioners of Wichita county, Kansas, parties of the second part, witnesseth: That the parties of the first part, for the consideration hereinafter named, are to take and prosecute such legal proceedings as may be necessary to relieve the said Wichita county of any obligations that may have been incurred on account of an attempt heretofore made by the commissioners of said county to subscribe $ 80,000 to the capital stock of the Chicago, Kansas & Western Railroad Company, and also an attempt to subscribe $ 55,000 to the capital stock of the Denver, Memphis & Atlantic Railroad Company, whereby it is claimed that said Wichita county should execute and deliver to said railroad companies the bonds of Wichita county for the amount so attempted to be subscribed; that in consideration of the services above set forth, the parties of the second part agree to pay to the parties of the first part all their necessary traveling expenses incurred in such service, and $ 30,000, payable as follows: A retainer fee of $ 6,000, to be paid at the regular meeting of the board of county commissioners of Wichita county in October; and $ 12,000 when the courts finally decide that Wichita county is not liable on the attempted subscription to the capital stock of the Chicago, Kansas & Western Railroad Company; and $ 12,000 when the courts finally decide that Wichita county is not liable on the attempted subscription to the capital stock of the Denver, Memphis & Atlantic Railroad Company.

"Done this 5th day of September, 1888, in the city of Leoti, Wichita county, Kansas.

(Signed)

WATERS, CHASE & TILLOTSON.

H. T. TROVILLO, Chairman,

W. S. TEMPLE,

CHAS. SINN,

County Commissioners of Wichita County.

"Order to be made record of on commissioners' journal.

H. T. TROVILLO, Chairman."

That afterward, on October 1, 1888, the board of county commissioners in session allowed the claim of the plaintiffs in the sum of $ 6,000, that being the amount to be paid down on said contract as a retainer fee, and directed the clerk and chairman of the county board to issue the warrant of the county to the plaintiffs for that amount. The affidavit for the order of mandamus alleges that the said chairman and clerk refuse to issue said warrant, and plaintiffs ask this court, by its order, to require them to do so. The chairman of said board, answering, says he is ready to sign the warrant whenever prepared by the clerk of the board. The clerk answers and says, first, that the alleged contract is void because it was never made by the board of county commissioners, but was signed by the several commissioners each in the absence of the others, when not in session, and denies that the board ever ratified said contract; and, second, that said contract is void because the board of county commissioners had no power to make it. Counsel for the defendant clerk also says in his brief that...