Board of County Commissioners v. Carter , 2 Kan. 115 ( 1863 )

By the Court,

Kingman, J.

On the 23d day of January, 1860, Luther M. Carter, the defendant in error, instituted suit in Shawnee County against the plaintiffs in error, on nineteen separate bonds amounting in the aggregate to $2,913, of which bonds amounting to $171.00 were dated the 6th day of October, 1856, and bonds amounting to $1,071.00 were dated the 27th day of November, 1856.

These bonds were each signed by William O. Yager, Probate Judge, E. Hoogland, County Commissioner, and Duke W. Hunter, Superintendent of Public Buildings, and sealed and delivered in presence of the Clerk of the Board of Commissioners of Shawnee County, and although made payable at different times, each bears interest from date at the rate of ten per cent, per annum.

These bonds professed to bind the County of Shawnee for their payment. They were given in fulfillment of an agreement made on the 6th day of October, 1855, between the defendant in error, and Duke W. Hunter, Superintendent of Public Buildings for Shawnee County, for furnishing materials and finishing the Court House in Tecumseh, (brick work, lathing and plastering and painting excepted,) which agreement was approved by the Board on the same day, and made the payment for the work, payable by installments.

The suit was transferred by change of venue from Shawnee County, to Donglass, and on the 8th day of May, A. D. 1862, a trial was had, wRich resulted in a verdict and judgment for the defendant in error, against the plaintiff in error, for the sum of $4,657.05 and the costs of suit.

Yarious questions were raised upon the pleadings, and in the course of the trial, which were not argued by the counsel and will not be considered by the Court, as the conclusion we have reached on the main point and the one which was presented in the argument renders an examination of the others unnecessary.

The important question to be settled, is one raised on the instructions of the Court to the jury, and is in fact, whether the county of Shawnee is liable on these bonds. And the consideration of this question involves the examination of principles of great difficulty and delicacy.

After the bonds were issued, to-wit: on the 17th day of January, 1857, the Legislature of the Territory passed an act approving and confirming these bonds and declaring them valid and binding upon the county. Laws 1857, page 50.

In settling the question whether the county is liable on these bonds, it will be necessary to examine first whether they were valid in their inception and execution by the law then existing ? If they were the whole case is disposed of, if not then it remains to see what is the effect of the act of 1857.

The first inquiry then is as to the law in force when the contract was made and the bonds sued on were executed.

The general financial affairs of the county were entrusted to a Board of Commissioners with power to levy and collect taxes, build bridges, and open and keep in repair roads and highways and provide by erection or otherwise public buildings necessary for the county, and have the control and management of the property and effects of the county.

These commissioners were elected by the Territorial Legislature and their powers were very extensive, and with no check upon the indiscreet and ruinous exercise of those powers, save in the limitation prescribed as to the extent of the tax which they might levy. Not receiving their position from the people, they were not responsible to them, nor were they accountable to any other tribunal for the exercise of their discretion. The use or abuse of their power had .but one check, they could not impose a tax exceeding the amount of .Territorial taxes levied in each county for Territorial purposes.

As long as they confined themselves within the limits of the law, they were not responsible for the discretion 'with which they exercised that power. It was within the scope of their authority to contract for the erection of county buildings greatly larger and more costly than the wants of the community would justify, and impose a debt upon the county for the payment therefor, which would be onerous and oppressive, and yet the Courts had no authority to interfere. It is not our duty nor within our province to inquire whether the Court House in Tecumseh was required by the wants of the people, nor whether the burthen imposed upon the county by its erection was onerous or not, ours is the much more limited duty of ascertaining whether that burthen was imposed by competent authority in the manner prescribed by law.

The county is a political subdivision of the State acting as a corporation with certain specified powers, and acting through its officers in a certain prescribed way pointed out by law. These officers are the agents of the county, acting for it in all those matters confided to them by law, each in his appropriate and prescribed line of duties—and many, if not most of the duties entrusted to them are not only pointed out by the law, but the very mode of performing them is laid down with accuracy and precision. When so laid down there is no discretion in the officers as to the manner in which they are to act. In that respect they are ministerial officers and bound to observe the limitations imposed upon them by the law, agents who can not act in any but the prescribed way, and this rule loses nothing of its force when we remember that these agents were at the time these bonds were executed, not agents created by the principle that was to be bound, but by the Territory through its Legislature.

. “ It is a general rule,” says the Supreme Court of Iowa, “ that when the Statutes confer the special ministerial au- “ thority, the exercise of which may effect the rights of “ property, or incur a municipal liability it shall be strictly “ observed and that any material departure will vitiate the “ proceedings.” 12 Iowa, 153.

And to this effect is the general tenor of the authorities cited by counsel for plaintiff in error. While the Board of County Commissioners had great power and almost limitless discretion in plunging the county in debt, yet the manner in which this could be done, being prescribed by the Statute, must be observed.

The law then in force, provided [pages 212 213, Stat., 1855 ¡j, that when payments upon contracts for the erection of public buildings shall be by installments, the tribunal transacting county business, shall upon the certificate of the Superintendent of public buildings that a due proprotion of the work has been completed and executed according to contract, order a warrant upon the County Treasurer fo;- such amount as may be due upon the contract, payable out of the building fund, or any money in the Treasury not otherwise appropriated, as the tribunal may order.

This Statute prescribed the mode in which the installments should be paid; the only mode known to the law. The Board of Commissioners only were authorized to order money to be drawn from the treasury, and they could do it only by a warrant on the County Treasurer. They had no power to bind the county by bonds, and herein was the only safe guard which the Legislature had left the people against oppressive burthens which might in the end ruin them with excessive taxation. When there was no money in the treasury to pay the warrants, if extravagant and speculative outlays for buildings were attempted, the measure would defeat itself because the warrants would be of so little value that cupidity itself would fail of a desirable object of investment in becoming the owner of such warrants. They would be so discredited as to become valueless in market, and the temptation to involve the county removed. The accumulation of debt would cease from the inability of the county officers to carry on projected improvements on a credit. Poor as was this barrier against extravagant or visionary contracts, it is one which would be likely in a new country to arrest the evil before it had reached the point of ruin, and the anxiety to adyan.ee local interests at the general expense would receive a check for the want of means. If, however, the Board could substitute for warrants, bonds bearing a high rate of interest, it would furnish an investment that might tempt men to take contracts for the erection of such buildings for the county as might suit the Board, at ruinous prices, and rely upon making up tor the present want of availa-bility,- by the high prices and high rate of interest obtained in the end. For if the Board, by the substitution of bonds for warrants, could stipulate for ten per cent, on the same principle, they might make it fifty, and thus induce contractors to take the risk of the debt being indefinitely postponed on account of the corresponding benefits that might be realized.

These bonds were not in any sense warrants. A warrant is an order by which the drawer authorizes one person to pay a particular sum of money. The Board alone were authorized to draw these warrants on the treasury, and that for audited claims only. They bore no interest of themselves, and on these warrants alone was the County Treasurer authorized to pay any money. By warrants alone were the Board authorized to create evidences of indebtedness. The bonds differed in substance as well as in form from warrants. They bore interest from date. They bore a higher rate of interest than the law allowed on warrants even after presentation. They were not drawn on the Treasurer, did not authorize him to pay out any money, and in no respect do they conform to the provisions of the law for evidencing the indebtedness of the county. In these, and perhaps other respects, the bonds differed from the only mode authorized by law for binding the county, and upon well settled principles were therefore void.

Dwarris in his treatise on Statutes, lays down this rule: “ As a maxim it is generally true that if an affirmative Statute direct a thing to be done in a certain manner, that thing shall not even though there are no negative words be done in any other manner,” and this rule appears to be established on well considered principles, supported by a long train of authorities. Applying this rule to the case before us, and it will leave no doubt that the bonds in their creation were void. They might as well have been executed by the Sheriff and Treasurer as by the Board. The former officers had as much authority to execute them as the latter, and they would have been as valid in one case as in the other.

It remains to examine what was the effect of the act of the Legislature of 1857. ' The first section simply ratifies and confirms all contracts theretofore made by the Probate Judge and County Commissioners of Shawnee County for the erection of a Court House, and has nothing to do' with this case, as the contract in this case was made with the Superintendent of Public Buildiúgs.

The second section declares that “ the bonds or other evidences of indebtedness heretofore issued by said Probate Judge and County Commissioners for, or on account of the construction of said Court House, are hereby declared valid and binding.”

It is urged on the one side that this act is clearly and fairly within the scope of the legislative power, and makes the bonds binding on the county, and on the other side, that it is a usurpation on the part of the Legislature of judicial authority, and therefore as void as the bonds them-' selves.

This presents a question which has much embarrassed Courts.*

The Organic Act defines as sharply, as is done by most of the State Constitutions, the limits of legislative power as extending to all rightful subjects of legislation, with certain specified limitation, while all the judicial authority is entrusted to the Courts.

While it is clear enough that under the Organic Act, as well as in most State Constitutions, the distribution of power among the different branches of government'seems plain and obvious, yet there .is still the great difficulty of ascertaining exactly what is a rightful exercise of legislative power.,

. Ch. J. Marshall said (6 Cranch, 136,) “ How fa/r the power of giving the law may involve every other power, in-cases where the Constitution is silent, never has been, and perhaps never can be definitely stated.”

. And Comstock, J., in delivering the opinion of the Court of Appeals in the case of Wynehamer v. The Peojjle, 3d Neman, 392, in speaking on this subject, says : “ I am

reluctant to enter on this field of inquiry, satisfied as I am that no rule can be laid down in terms which may not contain the germ of great mischief.”

Similar expressions are to be found in almost every decision where the question has been raised, and Courts have contented themselves with settling the precise case before them, rather than to lay down any general rule.

It will not therefore be considered as claiming too much modesty in this Court, if it shrink from attempting to lay down the line which separates legislative from judical duties and functions. It cannot be doubted that there are many cases in which the Legislature may with propriety exercise powers which partake of a judicial character, as when they “ furnish new and more efficacious remedies, or create a more beneficial interest or tenure, or by supplying defects or curing informalities in the proceedings of coiu-ts or of public officers, acting within the scope of their authority; they give effect to acts to which there was the express or implied assent of the parties interested.”

Such acts it seems from all the authorities it is competent for the Legislature to do, and there are many cases when such legislation would not only be valid but would operate with a most beneficial and salutary effect. And the courts in some of the States have gone great lengths in sustaining such legislation. The learned counsel for the defendant in error has cited a large class of cases of this character, but none we think that go so far as this Court is invoked to do in this case.

Those of the Supreme Court of Massachusetts, which go as far or farther than any in this matter, are not reasoned by the very able Court which rendered them, and the decisions were only reached by a divided Court, and the principles on which they were founded are questioned in later decisions. In Denny v. Mattoon, 2d Allen, 385, the Court says : “ when necessary it may be proper to reconsider them with care.” The principle of the decision just cited, may be referred to as authority directly sustaining the conclusion we have arrived at in .this case.

All the cases cited from the Federal Courts having any bearing on this case, are expressly decided on the ground that they do not conflict with the provisions of the Constitution of the United States, and the question we are examining is excluded from their consideration. We do not propose to comment at length upon the authorities.

Mr. Sedgwick in his treatise, after examining the various decisions, deduces from them as guides to some extent, certain rules of which the second is as follows:

“ That a statute which dispenses in favor of some particular individual, with the general rules governing similar cases, does not come within the rightful attributes of legislative power, and is notto be regarded as a law.” Page l'TU

We have examined with much care and diligence such authorities as were accessible to us, and think this rule is fairly deduced from them, although great contrariety is observable. In some cases which seem to be the best considered and best sustained by reason, the strict division of the powers of government has been enforced, and as the subject is more discussed and better understood, it is as the author just cited remarks, obvious that there is a strong and increasing disposition on the part of the judiciary to restrain the Legislature from the invasion of private rights to which the haste of our law-making operations frequently tends. . Apply the ruje above quoted to the case before us, and it is apparent that the Act of 1851 cannot be regarded as a law, for it retroactively disposes in favor of a particular individual, with the general rules governing similar cases, to the manifest injury of other parties. The county could not by any implication be held to have consented to the increased burthen. She had no officers authorized to signify such assent. The Legislature assumed to decide without the parties being before it.

The act differs from those retrospective laws which are frequently passed supplying defects and curing informalities in the proceedings of officers and tribunals acting within the scope of their authority.. The County Commissioners were not acting within the scope of their authority in issuing these bonds. They did not conform to the law only in an irregular way, but they broke down the barriers which the law had raised in a very regular way, and their acts in the premises were void, not for want of any formality or regularity or mistake as to time or otherwise, but for want of power under the law.

The defendant had his lights. The law pointed them out. He- was entitled (if' to any thing,) to his warrants, and must bide his time for their payment under the limited power of taxation conferred on the Board. He preferred bonds with a higher rate of interest, trusting to the healing power of subsequent legislation. He had as much right and power to bind the county in the execution of these bonds as the Board -had. If he had made these bonds, the Legislature would have had as much power to make them valid by an act declaring them binding upon’ the county as it had in the present case. Let such a power be once recognized, and within what bounds will the exercise of it be limited ? The Legislature undertook to make a law for this case, affecting and changing rights and imposing burthens contrary to previously established law, so that the act if valid has all the force of a judgment though in violation of the principles upon which judgments are rendered. If the act is a law there is no evading it, even could it be proven that none of the work had been doné, or that it had been previously paid for, or that the contract had been procured by fraudulent collusion between the ofhcersmaking it and the contractor. Courts are estopped from an incpiiry into the facts by the act itself, if it have any force in this case. We cite these results from the act, not as having any existence in this case, but to show the consequences which would residt from upholding the power of a Legislature to exercise such authority.

We think, therefore, that the act so far as it pretended to affect these bonds, is void, and the instruction of the Court below being otherwise, was erroneous.

The judgment of the District Courtis reversed, and the case remanded for a new'trial.

All the justices concurring.