1 Colo. App. 362 | Colo. Ct. App. | 1892
Lead Opinion
The defense that the county was indebted in excess of the constitutional limitation, and hence, that the warrants in question were void, cannot, in our judgment,
The supreme court of this state, in People ex rel. Seeley v. Hall, 8 Colo. 497, said : “ Except as limited or controlled by constitutional provisions, the general assembly is omnipotent in relation to municipal corporations within the state. It calls them into being and endows them with whatever powers and privileges they possess. If in its judgment advisable, their existence, even, may at any time be absolutely terminated. In,these and other particulars it bows only to the superior behests of the people expressed in their organic law.” And in Sangamon Co. v. Springfield, 63 Ill. 66, it was said, “ The taxes must be paid into the county treasury, and when there they are under the control of the county, and it must be held responsible for any proportion due to the city, or to any third party. The treasurer is the mere agent, and must obey the authorities of the county. The direction in the act, that when ‘the taxes shall be paid into the county treasury, the treasurer shall pay,’ etc., imposes an obligation upon the county, on the refusal of the treasurer to comply with the requirement. He is commanded to perform a purely ministerial duty. The liability of the county arises from the fact of having the possession of money which rightfully belongs to another party.
“ A county is a public corporation, which exists only for public purposes, connected with the administration of the state government, and may be controlled by the legislature. 2 Kent’s Com. 306. Such a corporation, and of course its revenue, is subject to the control of the legislature. County of Richmond v. County of Lawrence, 12 Ill. 1.
“ When, therefore, the legislature directs the application of the revenue on deposit in the treasury to a particular purpose, or its payment to any party, a duty is imposed and an obligation created upon the county.” See also, Alexander v. People, 7 Colo. 155; People v. Osborne, 7 Colo. 605; Ketchum v. City of Buffalo, 14 N. Y. 367; People v. Flagg, 46 N. Y. 401.
The legislature, within the legitimate limits of its power, wisely provided for a specific fund to be assessed, levied, collected and applied to road purposes only, and such fund is as specific for that purpose, and as unavailable for other purposes, as the school fund is made by the constitution. It was against this specific fund that the warrants in controversy were drawn.
By the stipulation on file it is shown that the amount of the credits to the road fund in the years 1883 to 1886, both inclusive, exceeded in the aggregate the outstanding warrants and warrants drawn against it, some $19,000, and that in each of the years the available road fund exceeded by quite an amount the warrants drawn. Hence, if the fund had been entirely devoted to the purposes of its creation, and there had been no diversion or misapplication of the fund, it was at all times solvent, and at the end of each fiscal year with money in the treasury to pay all warrants drawn during the year. It is agreed that on Dec. 31,1883, there were outstanding warrants amounting to $16,926.32. What amount of it had been drawn in the year 1883, and what amount existed prior to that time, we are not shown; but the assets of the fund exceeded all the outstanding warrants over $3,000. At the close of each of the following years the balance to the credit of the fund was much greater. It will be observed by the figures’ shown in the stipulation that the delinquent tax uncollected on December 31, 1883, was $12,966.39, and that in the following years it remained about $16,000 or over, showing that the collections of former years about equaled the delinquency of each succeeding year, consequently, the fund was at all times solvent and able to respond to the warrants drawn.
In Seeley v. May, 9 Colo. 404, it is said by the supreme court: “Valid appropriations of its revenue may be made in anticipation of the collection thereof,” etc.
The drawing of warrants against a special fund, already provided, and certain to be paid during the fiscal year for their payment, is not the creation of a debt or debts within the constitutional prohibition. The application of a special fund to the purpose of its creation, by the drawing of warrants against such fund, unless the amount drawn during the year exceeds the amount provided for such fund, and supposed to be available, is not the creation of a debt, although it anticipates the revenue to be collected, as they are drawn against existing values,—hence, cannot be classed and regarded as the debt of the county prohibited by the constitution, unless in excess, in some year, of the money provided for their payment during that year. Whether or not warrants so drawn on the special fund, in excess of it, can be classed with the general indebtedness of a county, so as to swell the aggregate and render the warrants void under the constitutional prohibition, we do not find it necessary to determine in this case, but if they could in any case be so considered it would not invalidate all the warrants of that ■year, but only those drawn after the fund was exhausted, and in excess of it. As it is shown, by the stipulation on file, that in the years from 1883 to 1886 the warrants drawn did not exceed, but were clearly within the fund provided for their payment, none of them could become invalid by reason of the general indebtedness exceeding the limit fixed by the constitution.
II. It is urged in argument, by counsel of defendant in error, that this form of action would not lie. He says,
This is a court of review, not of original jurisdiction. Had the point been raised by proper pleading in the lower court, and the question adjudicated, the finding might be reviewed here; but having been waived, and the propriety of the action conceded, the matter is not before this court. It is now too late to take advantage of matter in abatement of the action. But admitting, for the purposes of argument, that the question can be raised in this court, we are confronted with the following facts and difficulties. Conceding, as we must under the authorities, that where warrants are. drawn upon a special fund and there is money belonging to that fund in the hands of the proper officer, who refuses to pay, mandamus is the proper proceeding, and proof must be made of the ability of the officer to pay, what are the conditions of this case ? It is alleged in the complaint that for the years 1883 to 1887 the amount of the road fund was largely in excess of the warrants drawn against it, and that at the beginning of the year 1887 there was, or properly should have been, a large balance belonging to that fund in the hands of the treasurer. These several allegations are all traversed by the answer, are re-asserted in the replication, and the further allegation made, asserting in effect, that a large balance should be in the road fund, and if not there, that the same had been, by the county authorities, diverted and misapplied to other county purposes.
The action (aside from the equitable part of it that will be hereafter considered), was an action of indebitatus assumpsit at common law, and by the code the common law remedy has not been restricted but enlarged. This action will lie for “ The breach of all parol or simple contracts, whether verbal or written, or express or implied, for the payment of» money.” 1 Chit. Pleadg. 112; Stephen on Pleadg. 49; Curtis v. Fiedler, 2 Black. 461; United States v. Russell, 12 Wall. 623; Town of Queensbury v. Culver, 19 Wall. 83; Barker v. Corey, 15 Ohio 9.
In Archbold on Pleadings and' Evidence, 23 and 24, it is said: “ If a man undertake an office or employment, trust or duty, he thereby in contemplation of law, impliedly contracts with those who employ him, to perform that with which he is entrusted,'with integrity, diligence and skill; and if he fail so to do it is a breach, of contract, for which the party may have his remedy by action on the case or in most cases by action of assumpsit.” The general rule is, whenever a party has been damnified by the intentional wrongful act, misapplication of money, or by the gross carelessness or culpable negligence of another, an action of assumpsit may be maintained; and under the code, abolishing all special forms of action, and only giving one general action, it is clear, that where prima facie it was shown that the special fund provided for the payment of the warrants had been illegally withdrawn and appropriated to other pur
In People v. Mayor of N. Y., 23 Wend. 685, it was said: Here is a legal duty enjoined by competent authority, which the corporation is bound to discharge * * * an action on the case or assumpsit will lie for a neglect of corporate duty. See also Ellis v. Henry, 5 J. J. Marsh. 248; Church v. Mumford, 11 John. (N. Y.) 479.
In Board of Supervisors of Sangamon County, (supra,) it was held that assumpsit under the common counts could be maintained against a county for money accruing due to the plaintiff under a statute where there was no restriction to any other particular remedy, and that when, by an act of the legislature, the county taxes were apportioned between a county and a city, and the county treasurer refused to pay the city her portion, the money due the city from the county could be recovered in assumpsit under the common counts.
In this state, as in the state of Illinois, there is no specific remedy prescribed by the legislature in proceedings of this character, hence, the remedy may be as at common law, except in so far as the common law procedure is modified by the civil code. Varnum v. Martin, 15 Pick. 440.
Under the pleadings, the stipulation, and other evidence of plaintiff uncontradicted or explained by the defendant, the court erred in its judgment. It should have been for the plaintiff.
III. By authenticated copies of the records of the proceedings of the county commissioners, put in evidence by the plaintiff, the following appears as of date of January 12, 1887, “ And whereas, there is now in the hands of the treas
Here we find, by a resolution of the board passed and entered of record, an admission that there was in the hands of the treasurer “ quite a sum of money belonging to the road fund ” which had been in the treasury over a year. As was shown by the report of the treasurer of January 1, 1886, to this there was, presumably, to be added the amount collected from January 1, 1886, to January 12, 1887, for on that date the commissioners asserted that the hands of. the board had been tied to such an extent that they had been unable to pay any claims against the county, since the decision of the supreme court in Seeley v. May. (Dec. Term, 1885.) Payment of the warrants in controversy having been refused for an alleged want of money, the plaintiff was clearly entitled to equitable relief to the extent of the discovery and accounting asked, under the admissions entered of record and the refusal-to pay. If the facts presented upon the trial did not warrant, in the judgment of the court, a judgment in his favor, he was fully entitled to know why his claims had not been paid from money admitted to have been in the treasury,—what disposition had been made of the money belonging to the special fund conceded to have been in the treasury, and such further information, as would, if possible, enable him to enforce his just claims, and collect an unquestioned, just demand. Under our system of practice it is perhaps unnecessary to say that both legal and equitable relief may be granted in the same suit, and upon a proper prayer equitable relief may be granted upon the facts stated in the complaint at law. It is very doubtful if, under our present mode of procedure, a separate and distinct proceeding by bill in equity in aid of an action at law could be maintained. By the “supreme court judicature act” of 1873
The equitable rule in regard to discovery is “ a bill for discovery is proper either when the complainant therein has no other proof than that he expects to elicit by its means from the defendant, or when he needs the matters thus disclosed to supplement and aid other evidence which he furnishes, or whenever the court can fairly suppose that facts and circumstances discovered by means of the bill, can be in any way material to the complainant therein in lhaintaining his cause of action or defense of a suit.” 1 Pom. Eq. Juris. § 191; Montague v. Dudman, 2 Ves. 398; Finch v. Finch, Id. 492; March v. Davidson, 9 Paige (N. Y.) 580; Many v. Beekman, Id. 188; Metler v. Metler. 4 Greens Ch. (N. J.) 457; Turner v. Dickenson, 1 Stockt. Ch. (N. J.) 140; Peck v. Ashley, 12 Met. (Mass.) 478; Hoppock v. Railroad, 27 N. J. Eq. 286.
The circumstances of this case, the confusion of financial affairs and the peculiar administration shown by the public records of the proceedings of the county commissioners, certainly brought this case within the rule as above stated, and
The judgment should he reversed and cause remanded.
Reversed.
Dissenting Opinion
dissenting.
The algebraic representation of the unknown, quantity “ x ” probably well expresses the value and usefulness of a dissenting opinion in judicial proceedings. The universality of the custom coupled with the importance of the present inquiry has led to the labor and the possible encumbrance of the reports with this opinion.
I differ radically with my associates both in regard to the law which is applicable to the controversy and in regard to what the proof tends to establish. The stipulation of facts on which the case was tried is partially quoted in the principal opinion. It is assumed in it that what is quoted, together with what is stated, supplies the requisite proof to support the case and justify a reversal. I do not subscribe to that statement. Supplementing the quotation given in the opinion I now give the balance of the stipulation with reference to the warrants issued and amounts collected according to the terms of the document.
“ Delinquent tax due said road fund, De-
cember 31st, 1883 .... $12,966.39
Cash on hand . 1,246.32
Tax levy 1883 for road fund ... ., 10,953.69
Total .... $25,166.40
Of the delinquent tax of 1883, the sum of $3,068.85 was up to that time, Dec. 5th,
1883, declared unavailable, . . $3,068.85
$22,097.55
Amount carried forward $22,097.55.
drawn on said road fund . . §18,926.32
That in 1884, Dec. 31st, the delinquent unpaid tax due said road fund was the sum of §16,920.16
Cash on hand .... 247.42
Road tax levied and payable . . 15,396.18
Total
§32,563.76
Warrants drawn in 1884 §15,318.82
That in 1885, Dec. 31st, the account stood,
delinquent tax due the fund §16,421.56
Cash on hand .... 3,656.99
Taxes levied due the fund 12,052.52
Total credit . . . §32,131.07
Warrants issued, 1885, . . . 5,992.27
Dec. 31, 1886, the account stood: Delin-
quent tax due the fund . . §16,095.58
Cash on hand .... 5,628.21
Taxes levied due the fund . .. . 8,748.71
§30,472.50
Warrants drawn in 1886, . . §1,515.08”
That in addition to the credits above mentioned, the sum of §1,637.15 was credited to that fund by the board of county commissioners, from moneys collected from Lake county, said credit being given in October, 1886.
Following what is above quoted, there is what is termed a recapitulation of the preceding statement and a further statement as to the assessed valuation of the property of the county for specified years, which includes a statement of the warrants outstanding drawn upon the road fund for the years 1884, 1885 and 1886. These things however are simply a further illustration of what is contained in the statement already quoted, and goes no farther for the purposes of proof than that statement itself. This addition to the statement of
It is not deemed expedient to follow the line of argument or the course of reasoning adopted in the opinion of the court, nor to contest by way of illustration or argument any of its positions specifically, other than the one which will be first referred to. The views of the writer will then be expressed upon the general topics necessarily embraced in the case, without any other reference or response to the position taken than that which will necessarily arise from the statement of the views which it is believed ought to control the case. The judgment is not reversed because the evidence which was introduced required the entry of a different or any other judgment than the one dismissing the complaint, nor because upon what was proven the plaintiff should have recovered. In the language of the opinion, the case is reversed because the court “ erred in refusing to grant and compel the discovery asked.”
I am unable to subscribe to that rule, or yield my assent to the position that the plaintiff was entitled to any discovery or to any equitable relief. Without yielding my assent to the proposition that, upon one cause of action stated in a single complaint and in a single count, the plaintiff may have both legal and equitable relief, when from the facts which he states it is manifest and palpable that his cause of action is one at law, it seems to me very clear that in the present case the plaintiff has neither stated an equitable cause of action, nor an action at law wherein the enforcement of his rights either requires or permits the administration of any equitable relief in any of the forms or ways formerly known to chancery practice. The plaintiff has brought an action upon county warrants which in a limited sense and for the purposes of this discussion may be called commercial paper. The opinion holds that an action of assumpsit lies upon this
In the first place, from the statement of facts in the case
If the plaintiff had no right to an accounting according to his prayer, which is not adjudged by the opinion of the court, then the only equitable relief to which he could in any event have become entitled and that which the court says he had a right to is a discovery. It seems to be tolerably clear under the authorities according to the facts in this case, that the plaintiff was not entitled to that discovery. Without expressing any opinion as to the right to initiate proceedings analogous to those which prevailed in the chancery practice' prior to the adoption of the code, where a party appears by his case to be clearly within the declared law upon that subject, it is enough for the purposes of this opinion to hold that the plaintiff failed to bring himself within the well recognized rules relating to that procedure. It is said, with the concurrence of all the writers upon the subject, that to'entitle a party to a discovery he must be remediless at law, but for the discovery which he seeks. Story’s Equity, § 690.
The bill was always addressed to the defendant from whom the disclosure was sought, and if thé facts to be discovered were within the knowledge of any witness the bill did not
The present case would seem to be brought entirely within the scope and purview of this adjudication. It is entirely clear that the proof essential to the plaintiff’s recovery and the only facts which could be within the knowledge of the county officials, to wit: the levy, the amount of taxes collected, the purposes to which the funds were put, the transfer of the moneys if any from one fund to another upon the books of the county, with their ultimate disposition upon warrants drawn by the board, were singly and collectively matters of record, upon the books of the county, open to the inspection of the plaintiff, and producible and provable under proper process in a court of law where the case was to be tried. Gen. Stats. 1883, § 667, p. 285; Code 1887, § 335; Bean v. The People, ex rel., 7 Colo. 200.
It cannot be expected or presumed that the county officers would have anj' knowledge of the particular facts and conditions surrounding their various funds, except as they might be disclosed by their records and proper books. They were accessible to the plaintiff, did not lie in the knowledge or the conscience of the defendants to be extracted only from them by a bill of discovery, but they were susceptible of proof by documents and books in their custody and which they could be compelled by process to produce. If this be true, and there would seem to be no escape from the conelu
I do not agree with the court either in regard to the action which ought to be brought or which is properly maintainable under the circumstances, nor as to the scope and effect of the proof offered.
The constitutional limitations upon, the power of counties to contract indebtedness have been very clearly outlined and sharply defined by recent adjudications in this state. It is entirely well settled that whenever the limit has been reached no order or warrant drawn upon the general fund of the county is or can become a valid corporate obligation, whether it be issued in satisfaction of a voluntary contract entered' into between the commissioners and the creditor, or whether the debt be incurred in the discharge of what may be termed the necessary running expenses of the county under the enactments which provide for the organization and government of such corporate bodies. Since it is shown by the stipulation, which was the only proof offered upon the trial, that Chaffee county was indebted to an extent beyond what was authorized by the constitution as construed by the courts, the plaintiff could not recover without proof that he was the holder of a warrant which was, either in terms or by the statutory condition of its issue a specific appropriation of a paticular fund thereafter to be created or then in existence, and therefore not within the scope of the constitutional inhibition. That orders may be issued which will remain .unaffected by the constitutional limitation was expressly adjudicated in one of the opinions which settled the principal doctrine. The People ex rel. Seeley v. May, 9 Colo. 80; 404.
It was there decided that there might be a specific assignment of revenues thereafter to accrue. The assignment could be made by an apt writing or it could be effected by a warrant drawn under such circumstances and in such form that the law would give to it the effect of a transfer of the funds to be subsequently collected. And there is in the
The logical result of this rule undoubtedly is that the creditor who holds his order drawn upon the road fund must look to it alone for the satisfaction of his claim, and if there be no moneys in that fund applicable to the payment of his warrant—whether because the warrant is issued for a sum exceeding the amount of the authorized levy, or because the warrants which had been registered before it was presented to the treasury for payment have absorbed all the moneys collected or collectible,—he is remediless in the premises. Such was the express adjudication in Missouri when warrants were drawn upon an internal improvement fund. The legislation in this state upon the subject of roads and highways fully justifies a similar construction. Under these circumstances a warrant drawn upon that fund is not a creation of an indebtedness within the terms of the constitutional provision, but is simply a transfer to the creditor by a body, having authority for the purpose, of so much of the moneys in the treasury belonging thereto as the order may represent. Such legislative appropriation of a portion of the revenues of a county to a definite purpose is entirely within the control of the law makers. The powers and the duties of these public corporations are wholly derived from the legislature and are subordinate to its control. The state is taken to have an interest in the revenues of the county, and because of this interest of the public in these funds the legislature must be taken to have the power to direct their application. According to these views, the defense pleaded and proven by the county of an outstanding indebtedness would not avail to defeat the action.
The plaintiff attempted in this proceeding to obtain a money judgment against the county. If recovered, it must necessarily be enforced according to the provisions of the statute concerning judgments against a county. There is the naked inquiry whether an ordinary action for the recovery of money like the old action of assumpsit may be brought against the county on these road warrants where there is money in the treasury to which the holder is entitled. On this proposition there is a very general concurrence in the opinions of the court. Some states, like Wisconsin, undoubtedly hold that an action at law may be brought directly against the county to recover the money due upon those instruments which are called warrants in general parlance, though denominated county orders by the statutes. So far as observed, however, those cases which directly adjudicate that proposition construe statutes which, contain express provisions permitting money actions to be brought on such instruments against the counties, and the decisions are expressly rested upon these enactments. In the absence of such a statute, the reasoning of those cases which holds that mandamus is the appropriate and generally the exclusive remedy is satisfactory and conclusive. All the circumstances essential to entitle a party to mandamus concur in this ease. There is a specific legal right evidenced by orders issued by the county government, which is possessed of authority to determine the justice of the creditor’s claim and his right to a warrant upon the treasury. The
Although the question has not been directly adjudicated in this state, the right to the remedy has been considered by the supreme court and has been clearly settled by their adjudications. Board of Co. Comm’rs of Summit Co. v. People ex rel. Hurlburt, 10 Colo. 14; Stoddard, Treasurer, v. Benton, 6 Colo. 508.
It does not appear to me that the question discussed was either decided by the Traveller’s Insurance Company v. Denver (infra), nor that it was then before the court for determination. It would seem from the opinion that the right to maintain an action at law against the city of Denver upon warrants drawn upon the sewer fund was questioned by counsel who insisted that the remedy was by mandamus. According to the opinion, however, the case seems to have gone off upon other grounds, and to have been rested solely upon the necessity for an averment of moneys in the fund and proof to support it. It would appear impossible to urge the same objection to the maintenance of an action against -the city upon its warrants that readily suggest themselves when the legislation concerning the county organization and the creation of a road fund is considered. In the present case the difficulties seem insurmountable and to justify the .conclusion that mandamus is the only appropriate and adequate remedy.
To hold otherwise would be to enlarge the rights of the holder and give him, under the provisions of the statute relating to the enforcement of judgments against county organizations, a claim upon the general funds of the county to which he was not entitled according to the terms of his contract and the provisions of the statute, and which by necessary construction limited his right of recovery. According to section 527 of the General Statutes, whenever a judgment is rendered against the board or against the county officer no execution is to issue, but a tax is to be levied and collected for its payment as in the case of other county charges, or a
If the plaintiff had chosen the proper remedy the peremptory writ could not have been ordered on the final hearing. It will be observed that this is not and could not be under the circumstances a proceeding to compel the board of county commissioners to levy an authorized tax and apply it when collected to the satisfaction of the warrants which the plaintiff holds. If the action were in all respects regular, it could not go farther than to require the proper officer of the county to apply to the satisfaction of the warrants the proceeds of the taxes collected and in the officer’s possession. This could only be done upon both allegation and proof that moneys were in the treasurer’s hands properly applicable to the liquidation of the plaintiff’s claim. There is a radical failure in both these particulars. According to the decision in Travellers’ Insurance Company v. Denver, 11 Colo. 434, where the action is brought to recover on warrants drawn upon a special fund of a municipal corporation—it is necessary to allege that there is money in the fund with which to ]fay the warrant on which the action is brought. According to well established principles, all material allegations in a complaint must be sustained by competent proof, and if the allegation is material the proof is likewise essential. It is quite possible that by construction, if otherwise there were enough in the case to warrant a reversal, the court might hold the allegations with reference to moneys in the road fund sufficient to maintain the action, where an issue is made by answer and
As stated, the evidence lay in the stipulation of the parties. It nowhere appears in that stipulation that at the time of the institution of the suit, or at the time of rendition of judgment, there was money in the hands of the treasurer belonging to the road fund available for the purposes of paying the plaintiff’s warrants. The recital is “ payment thereof was refused for want of funds.” It was shown that from 1883 to 1886, warrants to the extent of §40,752.49 had been issued by the board. Such being the plaintiff’s proof concerning the situation of the warrant account, it must be assumed that these warrants were legitimate claims upon the road fund of Chaffee county, registered in some order under the statute and entitled to be paid by the treasurer. The situation which the plaintiff occupied in that list is not shown and he might have been, according to the proof, the holder of the last registered warrant. If he were in this position, he was not entitled to any relief, since he failed to prove that there was money in the fund sufficient to liquidate the antecedent registered claims. The evidence which he offered upon this subject consisted solely of a statement showing delinquent taxes due and the tax levies made for the various years, comprising the period during which his warrants were issued. This evidence cannot be held to justify a judgment against the county for a specified sum, nor could it be held to warrant the issue of a peremptory writ of mandamus to compel the treasurer to pay moneys to the plaintiff, since it neither proves nor tends to prove money in that officer’s hands. It was urged in argument that presumptively delinquent taxes were paid and that those levied were collected. Whatever force might be given, to that presumption for the purposes of determining the financial condition of the county, it does not constitute such proof of funds in the treasury as
There is nothing whatever contained in the stipulation either in terms or by implication whjeh can be said to amount to an admission by the county that there was at any time within the period mentioned in the stipulation unappropriated moneys in the road fund to which the plaintiff had a right to look for payment, and should it be conceded that by any sort of construction the road fund could at any time have been deemed solvent, it equally appeared that there were outstanding warrants to the extent of the funds in the treasury, and no proof was offered upon which the court could rightfully hold that the plaintiff was entitled to recover from that fund, for he showed nothing concerning the registration of warrants which would sustain a recovery by him.
It is likewise plain that the plaintiff was not entitled to recover upon his allegations that funds had been diverted in such fashion as to entitle him to a general judgment against the county. His allegations in that regard were put in issue, and the only proof, if it can be said to rise to the dignity of evidence, which he offered was a resolution of the board directing the placing of certain moneys in the funds named in the resolution. It is exceedingly doubtful whether for the purpose of a judgment against the county that resolution can be deemed an admission to^ such an extent as to supply the place of actual proof upon the subject. It is questionable at • best whether the board of county commissioners can by such a resolution make an admission upon which a judgment can be entered. Without expressing any definite conclusion upon this subject, however, it is enough for the purposes of this dissenting opinion to say that, even though it were an admission which bound the county, it was not followed by proof of the transfer of any moneys belonging to any fund upon which the plaintiff had any claim to the general funds of the county, whereby a cause of action as for diversion accrued in his favor.
It is manifest that although the defense interposed by the
The judgment dismissing the plaintiff’s bill accords with the law, and there is no error in the record which warrants its reversal.
The judgment should he affirmed.
Reversed.