114 F. 518 | U.S. Circuit Court for the District of Kansas | 1902
It is strenuously urged by defendant’s counsel that the complainants are not entitled to the relief sought by their bill, as the doctrine of the right of substitution forbids it. This question was passed upon by Judge Foster, the then presiding judge of this district, on a demurrer interposed by the defendant to the bill of L. M. Irvine, similar to the complainants’. His opinion is reported at page 765, 75 Fed. On coming into this jurisdiction under assignment, it is a part of the unwritten law that I should not overrule that ruling, unless it be so clearly erroneous as to appeal to my sense of judicial duty. It is to be confessed that looking to the broad language of Mr. Justice Miller in Ætna Life Ins. Co. v. Town of Middleport,
“The obligation to do justice rests upon all persons, natural and artificial: and, if a county obtains the money or property oí others without authority, the law, independent of any statute, will compel restitution or compensation.”
In the face of such a contingency as this case presents, the very instinct of justice should compel a chancellor to make, a precedent. The motto of the device of the pickax on the dial, “Find a. way or make one,” should be applied at times by the courts.
The fact that the money paid by the complainants for the bonds to the original bondholders did not pass directly into the treasury of the county cannot avail the defendant as a defense. As said by the court of appeals of this circuit in Geer v. School Dist., 49 C. C. A. 539, 548, in Fed. 682-690:
“The case of City of Parkersburg v. Brown, 106 U. S. 487, 1 Sup. Ct. 442, 27 L. Ed. 238, is authority for his rcomplalnanfa] recovery, notwithstanding the fact that his assignor actually paid the money to the sciiooi district for the bonds in question. The court holds in the last-cited case that the holder of the bonds, who purchased, them from the original laker, succeeds to the same right of recovery on the implied obligation which the original purchaser from the municipality enjoyed.”
This ought the more especially to obtain under circumstances like these at bar, where the bonds were exchanged by the county in an attempted liquidation of its outstanding warrants, which it had authority to issue, and were issued, presumptively, for valid obligations of the county, and, after obtaining them under agreement, canceled and destroyed them.
The Statute of Limitations. It is conceded that under the Kansas statuLe this cause of action would not be barred until after the lapse of five years. When did the cause of action as to these complainants arise? The contention of the defendant is that the statute began to run the moment the funding bonds were issued. It is then assumed that the bonds were issued August 1, 1888; and as this suit was not instituted until August 14, 1893, the limitation had expired. Rut the agreed statement is that on August 27, 1888, the board of county commissioners of Kearny county, at a regular meeting of said board, passed the resolution acknowledging the indebtedness on the warrants, and ordering the bonds to be issued in exchange therefor, whereupon the county treasurer should cause the surrender of the evidence of indebtedness to be marked “Paid in full” across the face. The bonds were to be accompanied with a certificate from the county clerk under his seal, “that the indebtedness of Kearny county in registered warrants equal to the sum of such bond or bonds has been surrendered to the board of county commissioners for cancellation, and canceled.” Paragraph 2 of the agreed statement of facts recites that “subsequent-
“As long as tlie district so recognized tlie same, and elected to treat them as legal obligations, we know of no reason requiring tlie plaintiff to take any steps to rescind the contract, or obligating liim to resort to the courts to enforce the implied obligation. It would be a harsh and thoroughly impracticable rule to establish that the holder of a claim against a municipality is bound by any consideration of statutes of limitations to take steps to rescind an express contract to pay the same, as long as the municipality itself recognizes such express contract as a valid and binding obligation. The effect of such a rule would be to permit the municipality to lull the holders of its obligations into inaction, and thereby, taking advantage of its own wrong, deprive them of a valuable right. It results, in our opinion, that the plaintiff in error had a lawful right to institute suit to recover upon the implied obligation at any time within six years [which was the limitation under the Colorado statute] after the district repudiated the express obligation. As the agreed statement recites that the suit was brought on the bonds July 5, 1890, when payment was resisted, in the absence of any evidence showing an earlier denial by the county of liability the presumption must obtain that the answer to that suit marks the initial period l'or the running of the statute of limitations. Furthermore, by resolution of the board of county commissioners of August 27, 1888, they acknowledged the existence of the debt, — that they owed the sum of the warrants,— and proceeded to discharge the warrants by thereafter issuing said bonds. Under statutes of limitation in no material respect different from that of Kansas (Gen. St. Kan. 1897, p. 90, § 18), it has been held (and such is the trend of the adjudications) that it is sufficient if the party acknowledge that he owed the debt, to stop the running of the statute of limitations, even though unaccompanied by any promise to pay. Chidsey v. Powell, 91 Mo. 622, 4 S. W. 440, 60 Am. Rep. 267; Elder v. Dyer, 26 Kan. 604, 40 Am. Rep. 320; Rolfe v. Pilloud (Neb.) 19 N. W. 615, 970; Sluby v. Champlin, 4 Johns. 462; Patterson v. Choate, 7 Wend. 441; Whitney v. Reese, 11 Minn. 138 (Gil. 87); Palmer v. Gillespie, 95 Pa. 340, 40 Am. Rep. 657; De Forest v. Hunt, 8 Conn. 180. So, in this view of the law, this acknowledgment of the debt having been made by the defendant on the 27th day of August, 1888, and the suit having been instituted on August 14, 1893, the period of limitation had not run.”
At the hearing of this case, at the conclusion of the oral argument then presented by counsel it was suggested by the court to defendant’s counsel that: Conceding there was some irregularity and fraud in the issue of the warrants in question, the practical and essential question is, has the defendant traced such fraud or want of consideration into any of the warrants involved in this suit ? and
The defendant has sought to identify some of these warrants, and the purposes for which they were issued, by offering in evidence certain pages of the commissioners’ journal, No. 1, of Kearny county. To the admission of this journal for such proof, complainants’ counsel objected, for the reason, inter alia, that the material pages of this record bear upon their face unmistakable evidence of having been tampered with. It must be admitted that it is quite apparent on the face of this record that there have been material erasures and substitutions of figures denoting the number of the warrants, evidently made since the original record was made up. It is also apparent (particularly so on pages 53 and 58 of this journal, which purports to contain a list of the county warrants ordered destroyed and refunded into bonds) that not only have the numbers of the original writing thereon been changed, but that after the entries were made there have been added two columns of figures on the left-hand margin, and one column of figures on the right-hand margin, outside of the lines which separate the margins from the usual place for making record entries. Superadded to this is the fact that this enumeration of numbers of warrants was wholly insufficient to indicate either their amounts, or names of the payees, or the purposes for which they were entered; and after their entry, and apparently in fresher ink, occur the words, written in, “See commissioners’ journal, page 605, for full description.” Why, if this entry was ordered made at the time of the purported transaction, it was not made in consecutive order on the record, but had to be carried over 547 pages to the back of the book, is not explained. And even then all the entries necessary to make out the numbers of the warrants canceled and destroyed were not entered on page 605, but a part of them were entered on page 604, bearing unmistakable evidence of not having been entered at the time; and these later pages are not signed, as required by the statute, by the officers of the court, or officially attested. No sufficient evidence is offered by the defendant in explanation of the evident tampering with this record.
Aside from this criticism, there is nothing in this record proper to identify any warrant in question with any fraud in its issue, or to show what the original consideration therefor was. Encountering this obstacle in the defense, recourse was sought by defendant to the testimony of one Waterman, and a certain stub book presented by him, known as “Exhibit Y,” purporting to have contained
The remaining defense worthy of consideration is that the warrants sued on were an overissue, beyond the debt-making power
"The board of county commissioners of anj county shall not levy upon the taxable property of such county n tax for current expenses of said county of any one year in excess of the following amounts: Upon a- valuation of five million dollars and under, one per cent; over five millions and under six millions, eight and one-half mills; over six millions and under seven millions, seven and one-lialf mills; over seven millions and under eight millions, six and one-half mills; over eight millions and under nine millions, live and three-fourths mills; over nine millions, one-lialf of one per cent.; provided, that the electors of the county, by a direct vote, may order an increase in such levies.”
The succeeding section (1854) limits the power of issuing warrants within the prescribed limit of section [833.
It hardly admits of debate that the evidence of the assessed valuation of the property of the county contemplated by this statute is that made by the proper county officers, made and extended upon the tax books of the county for the purpose of collecting taxes. No taker or purchaser of the issued obligations of a county, acknowledging an indebtedness, has ever been held, to my knowledge, to the duty of looking further than the record books of the county containing the assessment and tax levy. Aside from this, however, by paragraph No. 12 of the defendant’s answer herein it is expressly admitted:
“That said warrants referred to in complainants’ bill, if issued at all, were made and issued against the county fund of said county, and as a charge against the county fund, before there had been any assessment of taxable property of said county for the purpose of taxation, and before there had been any levy of taxes for comity purposes in said county.”
No matter what other allegations the answer may contain respecting the present assessments on the valuation of the county property, the foregoing admission of the answer should preclude all attempts made by the defendant to show aliunde that there had been such an assessment and valuation on the property of the county prior 1o the issue of these warrants. “A party should be bound by the allegations of his pleadings, deliberately made, and cannot be allowed to obtain benefits from contradictory and inconsistent allegations therein, even if made in separate counts.” Losch v. Pickett, 36 Kan. 216, 12 Pac. 822. This rule is aptly stated in Savings & Trust Co. v. Bear Valley Irr. Co. (C. C.) 112 Fed. 694-704: “A party is not permitted to assume inconsistent positions in the same litigation.” It should also be a sufficient answer to the attempts, by extraneous matters, to show what the assessed valuation of the taxable property of the county was, to say that all of these should be supplemented by evidence showing that either all of the warrants, or some of the particular warrants in suit, were issued “for current expenses of said county of any one year” in excess of the statutory limitation. As warrants issued by the county for special and extraordinary expenses of the municipality (especially those incident to the administration of the affairs of a new township and the organization of a new county) are not within the inhibited limitation of the statute (Lake Co. v. Rollins, 130 U. S. 662, 9 Sup. Ct. 651, 32 L. Ed. 1060; Childs v. City of Anacortes (Wash.)
The astute and industrious counsel for defendant has sought in many ways to supply this needed and indispensable proof. Plis first effort was to introduce in evidence the contents of a report made by one Prouty, as the enumerator designated by the governor of the state under the state statute (Sess. Laws 1887, c. 128), made for the purpose of enabling the governor of the state, preliminary to issuing the proclamation declaring the new county organized, to determine whether the county contained the minimum population and taxable property. Neither the original nor a certified copy of this report was offered in evidence, but the defendant’s counsel claimed that it was in his possession, and had been-lost. Waiving, however,, any question about this proof, how can it be judicially maintained that such certificate by such enumerator, made for a limited and single purpose, can be used by the county, in a suit against it by a third party, to show what the assessed valuation of the property of the county was? At common law it would be the merest hearsay evidence, and as there is no statute of the state making such report evidence for any purpose, except for the information of the governor before issuing his proclamation declaring the county organized, this paper is clearly inadmissible.
The next evidence, and of like character, offered by the defendant, is a certified copy made by the auditor of state of what purports to be a certificate filed in his office by the county clerk of Kearney county in November, 1888, to secure the registration of the bonds. It is conceded that at the time of making this certificate to the state auditor there was no statute of the state requiring the registration of bonds issued by counties, and consequently no statute authorizing or requiring such certificate by the clerk. And consequently it could not be evidence of notice of its contents to the holders of county warrants. The contention, however, of counsel, is that, inasmuch as the holder of the bonds presented such certificate to the auditor, he is bound by its recitals. In the first place, there is no evidence before this court that such certificate was presented to the auditor by the then holder of the bonds; and, in addition to this, the proof fails to connect the complainants with said certificate. If, as counsel contends,- such certificate was presented to the auditor by the then holder of the bonds, they were presumably in the hands of the party who exchanged the warrants therefor; and, as the alleged object of the registration of the bonds was to qualify them for circulation upon the markets as commercial paper, not only would the further presumption arise that they had passed out of the hands “of the holder” onto the market, but this presumption ripens into an admitted and indisputable fact. by the
“Tlxat the complainant, subsequent to the issuance and delivery of the bonds described in paragraph No. 2, to wit, on January 10, 1880. bought the same upon the market, in good faith, paying par therefor, without notice of any irregularities or defect, or claim of illegality, save and except such as might bo imparted from the face of the bonds themselves, and the public records and laws of Kansas; and complainant has continued to be, and is now*, the owner and holder of said bonds.”
The clear import of this statement is that the complainants bought the bonds after they had gone through the office of the auditor, as they would not go “upon the market” until after the holder of them had thus, according to his notion, qualified them for the public market. This is confirmed by the express stipulation that the complainants took the bonds without notice of any irregularities or defect or claim of illegality, “save and except such as might be imparted from the face of the bonds and the public records and laws of Kansas.” As there was no law of Kansas authorizing or requiring such registration or such certificate, the contents of such paper is but hearsay, inadmissible against a third party in a suit against the county. Authorities supra. It was an unauthorized, superserviceable preparation of the clerk, and as such it is in no sense such a record of the county as a taker or purchaser of its obligations should take notice of. There is no evidence in this case that said certificate was presented to the auditor by any warrant holder. And even if this certificate were competent evidence, it would leave the defendant’s cause precisely where all of its other evidence stops, — short of pointing out which warrant is bad by reason of being an overissue. Counsel for defendant contents himself with the bald statement that “it is easily ascertainable that there was an overissue of warrants, and it is easily computable as to the amount thereof.” Yet notwithstanding he has been industriously engaged for the past year in this task, he finds it easier to leave the court to work it out, or guess at it, than furnish the demonstration.
In its last extremity the defendant has offered in evidence, on .page 350 of a bound book labeled on the back, “Sixth Biennial Report, Auditor State, 1888, Kansas,” which purports to give the valuation of properties returned by the county clerks, and the total valuation of the property fixed by the state board, and the per centum to be collected. And in the same connection he offered by his testimony to show what was a copy of a certain certificate found in the printed record of another case (Speer v. Board, 32 C. C. A. toi, 88 Fed. 749), from which it appears that the valuation of the railroad properly had not been changed by the board of •equalization, but remained as originally assessed by the state board of railroad assessors. So that this evidence, even if competent, would not show what was the assessed valuation of the railroad property admitted to then be in the county, and would therefore leave the court to presume something which the evidence does not show. I undertake to say that no well-considered adjudication can be found holding that in determining the question of whether or not there was an overvaluation of property for assessment purposes,
Other defenses interposed by the defendant in this case are precluded by the rulings of the court of appeals in the case of Speer v. Board, supra, and therefore need not be reviewed.
While the court, from all the facts and circumstances connected with the history of Keamy township, cannot escape the conviction that there was in the administration of its affairs by the township officers wanton extravagance, fraud, and peculation, and while the court would cheerfully see the county relieved of the great burden of debts placed upon it by improvident, if not dishonest, officials, it cannot do so against established rules of evidence and of law. There are facts and circumstances presented by the evidence on behalf of the defendant, for instance, which point pretty directly to fraud on the part of the township board, and their aiders and abettors, in employing a large number of men to work upon the construction of a public road through the township, with the ulterior purpose of colonizing such employés in the township to vote at an election for the location of a county seat for the new county. But as the evidence shows such employés did much and valuable work in the construction of this road, which the statute of the state authorized the township board, in its discretion, to have done, even if the evidence in this case showed that the sum of the warrants issued for such services was excessive, and that some of the warrants could on such account be defeated for want of consideration, or because of fraud in their issue, the defendant’s evidence again falls short of identifying any particular warrant in controversy with such fraud or overissue. The same may be said respecting the large amount of fees for attorneys’ services for which warrants were issued. While the defendant’s testimony raises a reasonable doubt as to the value of such services being equal to the amount of compensation allowed by the governing board, I am unable, from the evidence presented, to identify such warrant or warrants with those in suit; and, if I. could, it would be mere guesswork for this court, on the evidence before it, to undertake to determine what amount of such warrant was honest, and how much was dishonest, or reasonable or unreasonable. The board had authority to employ counsel, which it did; and, as such counsel unquestionably rendered some professional service, the presumption obtains that every warrant issued therefor was not voidable for total failure of consideration.
Decree will go for the complainants.