Commissioners of Leavenworth County v. Keller , 6 Kan. 510 ( 1870 )

The opinion of the court was delivered by

Kingman, C. J.:

This is a proceeding in error to reverse a judgment of the Leavenworth District Court, by which Keller recovered against the county the balance due on a warrant given him by the county in January, 1868, for certain services theretofore rendered by him..

1. coottywa*KANTS — C0U»)ty ™POTbosued The action was on the warrant; and such an action may be maintained. The warrant drawn on the treasurer íb prima fade evidence of the indebtedness of the county. It is predicated upon an allowance made by the authorized agents of the county. It passes by delivery. If on presentment to the treasurer it is not paid, it bears interest; at least it did when this warrant was issued. County warrants are a subject of trade, and their value is quoted in market reports ; and by statute certain officers are prohibited from trafficking in them. This point been frequently decided : see Lyell v. Lapeer Co., 6 McLean, 446; Campbell v. Polk Co., 3 Iowa, 470; Clarke v. City of Des Moines, 19 Iowa 199 ; Savage v. Crawford Co., 10 Wis. 49; Bull v. Sims, 23 N. Y., 570; Floyd Co. vs. Day, 19 Ind., 450; Parsons v. Town of Goshen, 11 Pick., 396; — and contra, 50 Penn. St., 351.

2.-Warrant peached ¡lor what causes. A warrant is not like a bond of a county, issued only as an evidence of debt, and having a negotiable character ; and an action on it is liable to be defeated by showing that the tribunal which issued it had ° n0 authority to make the allowance on which the warrant issued : People v. supervisors of Eldorado County, 11 Cal., 170; Stetson v. Hampton, et al., 13 Mass., 271; Parsons v. Town of Goshen, supra. Or, because there was no consideration, and the wai’rant was issued by mistake: Campbell v. Polk Co., supra. Or, because of the want of some prerequisite step, enjoined by law: Clarke v. City of Des Moines, 19 Iowa, 199, and Clarke v. Polk County, same, 248.

3. issuance of regular. In this case, it is claimed that the warrant itself was invalid. It may well be cloubted whether the issues were so framed that this question can properly be made; but without stopping to examine this point, we will settle the main question. The testimony shows the order for the allowance was made by the County Board, and on the same day the warrant was written out, and signed by Mr. Dunlap, chairman of the board, and a few days later was signed, and the county seal attached by Mr. Deifendorf, who, after the allowance of the claim, had succeeded to the office of county clerk. The court instructed the jury on this point, that if the warrant was so signed and attested with the county seal, and at the times of the respective signing, Mr. Dunlap was chairman of the board, and Mr. Deifendorf was clerk, that the plaintiff had made out a prima facie case. This was correct. There is nothing in the testimony to show that there was any irregularity in the issue of the warrant, or that raises a suspicion' that everything in relation thereto was not done in good faith.

-t. iíecords; inofcounty^board. Again: It is claimed for the county that the county board had no authority to make any order in the premises, The work done was the copying of the indices of deeds for the county from January 1st, 1860, to December 31st 1866, a period of seven years, and to some extent correcting them, and making out an index to the Tax Deeds for the same time. The law provided that the counties shall have power “ to make all contracts, and do all other acts in relation to the property and concerns of the county necessary to the exercise of its óorporative or administrative powers.” Comp. Laws, Ch., 52, § 1; (Gen. Stat., Ch., 25, § 1;) and the board represents the county, and has care of the county property, and the management of the business and concerns of the county in all cases where no other provision is made by law, (id., §15;) ánd to make such orders concerning the property belonging to the county as they may deem expedient, (§ 15, clause 1.) The power thus conferred is very broad; still it has its limitations, not necessary now to be noticed. If a case can be reasonably supposed in which it would be necessary for the interests of the county to have the indices of the records of the county copied and corrected, then the power to do- so exists in such a case. And we can readily imagine causes that would make such a case necessary. As, if they were so near worn out as to threaten speedy destruction; .or that the ink was fading; so that they were becoming illegible, and many other causes. As the record is silent as to the causes that in the opinion of the county board made the work necessary in this case, we are bound to infer that the necessity existed.

The indexing of the tax deeds may stand upon a different footing. It seems that for the seven years this had been neglected. This neglect of the register would render the records almost useless for the purpose of examination. Public convenience and public interest required that the work should be done. As those registers of deeds who had neglected the duty had gone out of office, there was ■no way to enforce the. duty, and no way of remedying •the evil, but by having an index made out.

s- — Contract; when valid; Applicable.110^ Having the power to take the action they did, it remains to be seen whether the county board exceeded the limits of their authority in the compensation ** x they agreed to pay. When the necessity of the work had been determined upon, the board called Keller before them, and asked him what he would do it for. He replied, for ten cents for each index. The board made the order to have the work done. Keller, who was register of deeds, copied the old index, with some corrections, and made out an index for the tax deeds; when the work was completed, Keller brought in his account for the ■ work done, properly verified, and at the price he had stated. The board examined the work, allowed the account, and ordered the warrant now in suit. The.plaintiff in error claims that he was entitled to only ten cents per folio for copying and correcting the indices, or less than one-fourth the amount really charged and allowed, for this part of the work. We do not think the law fixing the fee for copying at ten cents per folio was intended to cover such a case as this. In its terms it does not. The language is, “ For copying of any deed or other paper, when required by any person, or by law, ten cents per folio.” The copying done in this case was neither “ a deed or other paper;” nor is it of the character of either of those classes. It was in testimony, that the labor of such copying was largely more than the same amount of ordinary copying. The correcting errors also formed part of the work, as appears from the testimony. As the law fixed no compensation for this class of work, it was competent for the commissioners and Keller to agree on a price, or for the commissioners to allow a reasonable compensation, after the work was done. Having made such a contract, and the work having been done in accordance with the contract, Keller was entitled to his pay therefor.

g. Allowance by «oí! conclusive, It is claimed, that as to the indexing the tax deeds he charged, and had allowed, $1,171.20, while he was entitled only to $1,044, having charged for more work than he actually did. This was a proper question for the county board to examine. The account was itemized and verified, as required by law. The board examined the work, and made the allowance. The testimony leaves it uncertain whether Keller charged too much or not. A matter so easily susceptible of being ascertained with certainty, is left in doubt, as there were some deeds that the witness had not counted; and the jury might well have found under the testimony that the number of indices charged by Keller had been made. The settlement with the board was prima fade evidence of the correctness of his account. Still, under the pleadings, this was a fit and proper matter to go to the jury. The settlement of an account by a county board, is not more sacred than a settlement by individuals. They act as agents of the county; as such they made th'e contract with Keller, and as such, audited the account when the work was done. Had an individual stood in the place of the county, and made a settlement, and given his note, there can be no doubt that he could have corrected a mistake in the settlement, by appropriate judicial proceedings; and there is no reason for the application of a different rule to settlements made by a county board. Any other doctrine would invite to fraud, and lead to disaster. The court withdrew this question from the jury, saying that, “ the allowance of the claim was an “ adjudication of the matter, and was as binding upon “ both the plaintiff" and the county of Leavenworth, as “ much so as the judgment of this court in the matter.” This, after careful examination, we are constrained to say is erroneous. It is true, that the allowance was so far judicial, that an appeal could be taken from the decision, if adverse to the claimant; but not in the sense which is usually given to the word judicial. The appeal is given that the case may be heard judicially, and the method of getting the case into court is by appeal. If the decision of the county board was final, in as broad a sense as is given to it in the instruction, then a party who had once had a claim rejected for any cause could not again present it for allowance, because it would be res adjudícala. Yet this is a thing that is constantly done, and the practice is unquestioned. For this error the case must be reversed. Exceptions were taken to the charge of the court on other points, but we are unable to perceive any error therein.

During the trial Keller was a witness, and while being cross-examined by the county attorney, was asked this question: “You knew at the time you, presented this bill, what the legal fees were for copying ?” This the court refused to permit to be answered, and rightly, for two reasons : The work was not copying merely; and the fees therefor were not regulated by law. Second, if the fees were fixed by law, the witness was presumed to know that fact, and there was no need of proving it.

The judgment of the district court is reversed, and cause remanded for further procceedings.

Valentine, J., concurring.