51 P.2d 5 | Kan. | 1935
The opinion of the court was delivered by
This is an original action in quo warranto to oust the defendant from the office of city commissioner. The defend
In actions where this court has appointed a commissioner to hear-evidence and determine issues of fact, it is the duty of the court to examine the whole record and reach its own conclusion as to the facts. (See State, ex rel., v. Duncan, 134 Kan. 85, 4 P. 2d 443.) In that respect this action differs from one that is tried in district court and appealed on a question of fact. With that rule in mind we have examined this record.
The first cause of action in the petition charges defendant with using his influence and vote in awarding a contract for the paving of a street in the city and with receiving $365 from the contractor in payment therefor. The contractor, one Fry, was a witness for the state. He testified he was .a friend of defendant and helped him get into office; that shortly after his term started defendant asked him how he could make some extra money. He testified that after the petition for the paving in question was circulated there was a conference at his house at which it was agreed that the profit on the binder used in paving the street was to be split three ways, that is, between defendant, the witness Fry and one Ashford, the city engineer. He testified further that the contract was awarded to him; that his profit on the binder was about $1,100; that he drew a check for $726 and some odd cents from the bank payable to a man in Kansas City; that he cashed the check and paid defendant $365 and paid Ashford $360. On cross-examination he testified that he had not been promised any immunity for testifying and that he had fallen out with defendant about the award of another contract for paving which was not awarded to him.
Ashford was the next-witness for the state. He was city engineer. It was his duty to prepare the plans and estimates for paving and to supervise the construction. He testified that he did not remember going to Fry’s house before the contract was let, but after it was let Fry called him up; he went down to his house; and that defendant and his wife came there; witness, defendant and Fry all went upstairs to Fry’s office. At this point the testimony of this witness becomes confused. He was asked to state the conversation that occurred there among the three. He answered that he did not
“Charles H. Ashford, being first duly sworn, upon his oath says: That I am a resident of Iola, Allen county, Kansas; that. I am, at the present time, and have been during all of the times referred to in this affidavit, the duly appointed and qualified city engineer of the city of Iola, Kan.; that as a part of my duties as city engineer I prepare the plans and specifications in connection with the construction and reconstruction of the paving on the streets of said city; that in May, 1933, and prior to the letting of the contract to R. D. Fry, or the Iola Construction Company, which is one and the same, for the resurfacing of Chestnut street between the north line of Madison to the south line of Monroe, J. D. Buchanan, R. D. Fry and myself met down at the Iola Button Factory in the afternoon and agreed that we would meet down at R. D. Fry’s house at 7:30 that evening to determine the amount of profit in the job and the amount that would be paid to J. D. Buchanan and myself as a pay-off for giving our assistance in obtaining the contract for the Iola Construction Company.”
He testified that the affidavit was true except that the time of the meeting at Fry’s house was after the contract was let instead of before. He testified that the job did not hold up very well because gravel rather than crushed rock was used in the binder. The gravel was cheaper. He further testified that he received $360 from Fry. On cross-examination he testified that he told the county attorney the date in the affidavit was wrong, but the county attorney did not change it. He testified that the only thing discussed while defendant was present was whether gravel or crushed rock would be used in the binder. Reluctantly and after being asked three or four times Ashford finally testified that he was not sure, but to the best of his recollection defendant was gone when Fry told him he was going to give him a third. On redirect examination he repeated that
Jesse C. Benson testified that he was cashier of the bank; that July 7, 1933, the account of Fry showed a check drawn payable to Wm. R. Martin for $726.50; that he kept books for Fry and that at the time of writing the check Fry mentioned that he needed the money with which to pay for some equipment.
Mr. Hobart, the mayor of the city, testified that when the resurfacing of the street in question was first brought up it was turned down because some property owners on the street in question were in arrears in taxes; that after defendant became finance commissioner he stated that people were ringing his telephone off the .wall asking about it, but that no one called him, and that defendant took office in April, 1933, and defendant and Bartlett voted to have the street resurfaced in May.
For the defense, Mr. Bartlett, the utility commissioner, testified that he voted to pave the street after defendant became finance commissioner; that the contract was let to Fry, who was the lowest bidder; and that the job did not hold up very well, since it broke along the edges.
The defendant testified he was well acquainted with Fry; that Fry advised him not to run for commissioner because he could not be elected; that when the paving contract in question came up he
In rebuttal Fry testified that when he drew the $726.50 out of the bank he told Benson that it was sugar money.
It will be seen that there was testimony on both sides of the question of fact to be determined in this cause of action. The commissioner reviewed the interest that Fry had in the outcome of the action and his animus toward defendant and concluded that defendant should not be found guilty unless the testimony of other witnesses and the facts and circumstances corroborated the testimony of Fry. He also recited the testimony of Ashford about as it has be.en given here and concluded it was entitled to about the same
We hold that what was said in the case of State, ex rel., v. Carl, 120 Kan. 733, 245 Pac. 150, is in point here. In that case several witnesses had testified at the attorney general’s inquisition in a manner very damaging to the defendant. When they took the stand before the commissioner they told a different story. They were cross-examined about the statement and the commissioner based part of his findings on what was in the statements that were used on the motion to suspend. This court in effect approved this and said:
“Many other witnesses were called by the attorney general and gave testimony to the same general effect, but when they were placed upon the witness stand before Commissioner Cunningham, some of them, and particularly Fowler, were unwilling to give the same sort of testimony they had given at the attorney general’s inquisition and which was used in support of the state’s motion to suspend the defendant on September 17. However, the justices’ dockets, the files and the testimony of many of the persons who had been subjected to arrest and who had paid heavy sums as costs without conviction or plea of guilty and the requisite jail sentence and imprisonment attaching thereto, were examined by the commissioner, and the following is his partial summary of the facts:” (p. 739.)
The commissioner reports that when Ashford was put on the witness stand his face was blanched, his lips were trembling and he appeared to be under a great nervous strain. Well might this be true! He was about to endeavor to escape the effect of a statement formerly given under oath and at the same time to avoid committing perjury — always a difficult feat. Better men than he have tried it and failed. He had made a clean-cut statement to the county attorney and attorney general. This statement corroborates the testimony of Fry about the agreement as to the split of the profits and about the meeting being before the contract was let. He had told defendant about the statement and defendant had taken him to task about it in a blasphemous way. His testimony as it appears in the record is a typical example of a reluctant witness being made to testify. The first question of any importance asked him was to tell the conversation that took place there in the upstairs of Fry’s house. He answered that he did not think he could do that, meaning that he could not remember. He must have given a statement of this conversation to the officers at the inquisition. It is apparent that at the outset he was taking refuge in that haven
In cases where a public officer is accused of taking a bribe there are few witnesses, for obvious reasons. Circumstances, however slight, must be relied on and weighed for what they are worth. Thus, we have here, beyond a doubt, the check for $726.50 being withdrawn from the bank immediately after the job was finished and the payment of $360 to Ashford, which no one seems to doubt. This becomes important to us when we see that the money paid to Ashford, plus the money alleged to have been paid defendant, was just two thirds of the alleged profits. Nor can we overlook the fact that money was all drawn out of the bank on a check payable to a man in Kansas City, 'Mo., just the sort of transaction that would be used to cover up payment to local people in a questionable transaction. This court is not impressed, as the commissioner was, with the fact that there had been no prosecutions growing out of this transaction. While the question of whether the public would be better served by a criminal prosecution of state’s witnesses than by an ouster suit is one usually for the exercise of the judgment of the officers, it may be said that if the prosecution of witnesses was concluded to be the better service to the public very few public
The second cause of action charges that defendant solicited and accepted a bribe in connection with the purchase of fire equipment.
While there is evidence to support this cause of action it is not as persuasive as that which supports causes of action 1, 3 and 5, and if this were the only charge against the defendant the evidence standing alone would hardly justify the ouster. Since a ruling on the cause of action will not affect the ultimate result in this case we shall not detail the evidence concerning it.
The third cause of action charges defendant accepted money in connection with a purchase of gas pipe to be used in the gas mains of the city.
Fry testified he had some conversations with defendant about January of 1934; that the purchase was to be about $10,000; that defendant asked how much he should get out of it, and was told about twelve or fifteen hundred dollars; that a few days later defendant told him he thought he could make a deal with John Krupp; and that Fry told him he should deal with a more reputable firm who would protect him and its own reputation. He further testified that defendant later told him he had closed the deal and was getting $785 out of it. He testified that a few days later when he was at defendant’s office Krupp came in; Krupp and defendant went to the back end of the building and in a minute defendant came back and said he had $300 of Krupp’s money, and that witness saw the
Ernie Barnes testified that he worked for the Krupp Junk Company in March, 1934; that he was employed because Krupp sold some pipe to the city; that his duties were cutting pipe; that he heard a conversation between Krupp and defendant in the summer .sometime; and that the conversation was as follows:
“A. Buchanan came in the office and said, ‘John, I believe they have got the goods on us.’
“Q. Well, just go ahead and tell what was said. A. John said, ‘Don’t let them scare you.’ Buchanan laughed and said, ‘No, I will take care of that.’
“Q. And did you hear any further conversation there at that time? A. No, sir.”
Some time after defendant was suspended Barnes heard another conversation between Krupp and defendant. It was as follows:
‘‘A. Mr. Buchanan said, ‘If one man talks, we’re sunk!’
“Q. Well, what was the whole conversation there that you heard? A. That was what I heard.
“Q. Well, did John reply anything to that? A. No, sir.”
He testified further that John Nelson inspected the pipe for the city, and at Krupp’s order he hauled out to the job some pipe that had been rejected by the inspector. On cross-examination he testified that he worked for Krupp in February of 1935, but at that time he had trouble with him and quit; that the first time he told the story about the conversations was to the county attorney about a week before the hearing at which he was testifying; and that he told about it because Krupp gave him a dirty deal. On redirect examination he testified that all the time he was working there he kept still to protect his job. On recross-examination he testified that he went to a lawyer’s office with a fellow named Fat Hamilton and told the lawyer the story, and the lawyer sent him to the county attorney; that defendant had nothing to do with his hauling the rejected pipe; that Nelson was not there all the time.
Mr. Shanahan, the city clerk, testified that there was nothing in the minutes of the city commission pertaining to the purchase of pipe; and that the amount of pipe purchased was $10,887.81. On
The testimony of Mayor Hobart was that the city was to re-lay the gas mains as a federal project to help out the unemployed; that Bartlett and defendant said they had word from Sonken-Galamba Corporation in Kansas City that they had taken over a refinery in Oklahoma and. they had a lot of used pipe that they claimed was as good as new; that they wanted him to go along to inspect the pipe, but he said he did not know anything about pipe and thought he knew as much as they did so went along; that they came back and said they had found a lot of second-hand pipe that was as good as new and the firm which owned it had to have an answer by 6 o’clock that night; that he objected to the rush when they were paying 26 cents for this pipe and could buy new pipe for 26.9 cents a foot; that at the time of that conversation he told them that Fred Denton at Arkansas City had some used pipe which he wanted to sell, and they said there would be no use in looking at it; that the next thing he heard about the pipe was when the requisition came through; that he said he thought they ought to wait for a regular meeting, but they stated it was not necessary; that the pipe started to an’ive in a few days and he suggested they get a competent man to inspect it; that Bartlett suggested Ashford, but that Hobart did not think he was competent and suggested Nelson, and he was employed; that Nelson was on the job two or three weeks (it took all summer and way into the fall to complete the job); and that after Nelson quit, Ashford, the engineer, who had charge of laying the pipe, inspected it. He testified on cross-examination that the commission had Thompson write the companies for prices on new pipe-;
Fred Denton testified that the pipe he offered the city was 6-inch standard 20-pound pipe; that there are different grades of 6-inch and 3-inch pipe; that he never heard of double-strength pipe. In response to questions by the commissioner he testified that he did not quote any prices on reconditioned 3-inch or 2-inch pipe; and that he figured 35 to 50 percent off for used pipe.
Ashford testified he had known Krupp for several years; that Krupp told him he was going to put in a bid for the pipe and if there was anything he could do to help him he would appreciate it. He further testified as follows:
“He .(Krupp) did not tell me lie was going to pay me anything. I. might have made the statement at the inquisition that John Krupp told me beforehand, ‘If you feel like you can have any influence with Buchanan, I would like to sell them some pipe and I will make it right with you.’ He didn’t mention any name at all. After that John Krupp paid me around $100 at different times. I don’t think he paid me over $10 or $15 at one time. After talking with Krupp, I told Buchanan and Bartlett.that that was good pipe.”
F. J. Horton testified that he had been engaged in the oil and gas business for about fifty years; that after the purchase of the pipe by the city he inquired as to the price of 3-inch standard iron pipe; that from his experience he is familiar with the price of used pipe in Iola; that he thought the fair value was from 10 to 15 cents a foot; that he had a quotation of from 17^ to 20 cents on 6-inch pipe; that the value of 6-inch reconditioned pipe at that time in Iola was anywhere from 15 to 25 cents a- foot, depending on the condition. On cross-examination he testified that the value of used pipe depends
Bartlett, for the defendant, testified that the pipe bought by the city was just as good as new pipe; the provision about the city being the sole judge of the pipe was written into the purchase order at the suggestion of Bartlett and defendant; that when the pipe first began to come in defendant was in the hospital and Nelson was appointed to inspect the pipe at the suggestion of Hobart; that about two or three weeks afterwards it was reported to him that Nelson got too much to drink and went home, and that he had nothing to do with discharging Nelson. On cross-examination he testified that the pipe was purchased in order to repair the gas distributing system on account of the leakage; when they looked at the pipe in Oklahoma they did not perform any tests; it did not show any pits; that they just walked along and looked at it; that Ashford, defendant, Krupp and his representative from Kansas City went with him to Oklahoma to look at the pipe; that he is charged with the duty of maintaining the gas mains of the city and wanted good .pipe; that Nelson tapped the pipe and sounded it and threw the rejected pieces to one side; he did not discharge Nelson, he probably worked eighteen to twenty days; that he did tell Mayor Hobart that an answer had to be made by 6 o’clock the evening of their return.
The defendant testified that the city was asked to sponsor a CWA project and thought of renewing some of the gas mains; that the commissioners looked at the pipe at the refinery in Oklahoma; that they found 3-inch and 6-inch pipe all on overhead lines and there was quite an amount of it in stock there; that it did not look as though it had ever been used for anything; that the pipe at Arkansas City was stacked in several piles in a muddy field and they could not look at it; the reason they were anxious to get the pipe as early as possible was that it was a CWA project and they wanted to get as many men to work as quickly as possible; that after they came back from inspecting the pipe in Oklahoma they told Hobart about it, and he said, “if you and Mr. Bartlett think the pipe at Boynton is a good buy I have absolutely no objection;” that Hobart suggested that they had better call the city attorney and find out if it should go over to a-regular meeting; and he did call Mr. Apt and he said a contract was not necessary;
J. B. Kirk testified that he had experience in buying all kinds of pipe. He examined the purchase order and said that it was a splendid contract for the city; that whether or not the city would get good pipe would depend on the inspector; that it is generally conceded that pipe that is used in an oil field is better than pipe that is used in a gas field; that there is very little relationship between the price of new pipe and used pipe; that the market price of used pipe is governed almost wholly by the law of supply and demand; that he had purchased old pipe when he could have .gone out and bought a lighter new pipe for the money; that his judgment was
Krupp testified that he paid 18 cents a foot for the 3-inch pipe and sold 28,000 feet of it to the city for 26 cents; that he bought the 6-inch pipe for 25 cents a foot and sold 8,000 feet of it to the city for 46% cents a foot; that he’ lost $12 on the 2-inch pipe that he sold the city; that he made about $2,500 on the deal; that he figured his expense for hauling the pipe to Iola was about five or six hundred dollars; that he gave the city engineer about $100.
Mrs. Krupp testified that she was never in the office of the Krupp yard when Ernie Barnes, her husband and defendant had any conversation.
Krupp testified that he had expense with the pipe; that he had to plain end it, clean it and string it; and that he never paid defendant any money whatever.
In response to questions by the commissioner he testified that the pipe delivered to the city of Iola was tubing weighing 8% pounds per foot; that it was second-grade pipe; that he had a man working in his office by the name of Ernie Barnes; that he never had a conversation with defendant in the presence of Barnes; that he never paid defendant any money at all, but that he paid Ashford $100; that he paid Ashford because when Nelson was no longer on as inspector the pipe got so congested that he told Ashford that if he would work Sundays and all the spare time he had he would pay him for his trouble; that he was paying the engineer whose duty it was to represent the city for inspecting this pipe; that he could see nothing wrong with that; that he never promised Ashford anything if he got the contract. On redirect examination he testified that most of the pipe was not inspected when Nelson quit.
In response to questions by the commissioner he testified that the still tubes that he was inspecting weighed more than 7.575 pounds to the foot; that he never weighed them because they were beyond the required weight per foot; about thirty percent of that sort of pipe was inspected and passed, and that he passed nothing but good pipe.
Frederick G. Apt testified that he did not advise defendant that they could buy that pipe without a contract or without a commissioner’s meeting.
On that record the commissioner found all the issues in favor of defendant. We will examine the evidence.
Fry testified as to the statement by defendant that Krupp was to give him $785. He also testified to seeing Krupp come to the office óf defendant, and that defendant said at that time he had $300 of Krupp’s money. If this should be believed it would be sufficient of itself to justify ouster of defendant. On account of the apparent interest of Fry we will examine the surrounding facts and circumstances with the idea of finding whether Fry’s testimony is corroborated. The two conversations testified to by Barnes furnish some corroboration. We now must not only wave aside the testimony of Fry, but must do the same thing with Barnes’ testimony. The conversations sworn to by Barnes have the ring of naturalness. They are about what a man would say under such circumstances. Defendant ridicules the idea that men would have such a conversation in the presence of a third person, but for aught this record shows the circumstances might have been such that the speaker did not
In the fourth cause of action the defendant is charged with accepting a bribe in connection with the purchase of some waterworks equipment. As to this cause of action we have reached the same conclusion as expressed heretofore in this opinion with reference to the second cause of action.
In the fifth cause of action defendant was charged with having accepted a payment of money in connection with the purchase of land by the city for a swimming pool. The commissioner found the issue of fact on this charge in favor of the defendant. We will examine the record.
In this cause of action Fry testified that along in February, 1934, he had a conversation with defendant with reference to the city purchasing Riverside Park; that he told him there would be $1,000 in it which they would split; that later he told him there would only be $500 in it, which he offered to split with defendant; that he talked with F. O. Benson at the Iola State Bank; that the city bought the real estate in March, and he took defendant his $250. He also testified as follows:
“Q. Did you draw the money out of your bank account? A. No.
“Q. Well, you may state just what you did in connection with the obtaining of that money. A. He (Benson) called at my home and told me to come up to the bank. I did so. When I went in, he told me' he had deposited two hundred and fifty dollars ($250) to my account, had the deposit slip all made out and gave it to me. No, I will rescind that statement. He said he had deposited five hundred dollars ($500) to my account and he asked me how I wanted the other two hundred and fifty dollars ($250). I told him in cash. He went in and made out a check, brought it back and I signed it. He went and got the two hundred and fifty dollars ($250) in cash.”
He further testified that the check was made on his account' in which had been deposited $500, of which he kept $250; $250 he gave to defendant. On cross-examination he testified that the site of
Jesse Benson testified that on March 16 Fry’s account was overdrawn $7.72; that on March 17 there was an additional check for $2, which, with the 2-cent tax, would make the overdraft $9.74; that the next entry is April 5, 1934, when the record shows thirty-nine checks ranging from one dollar to twenty, most of them for a dollar or two; that the last check was for $2 and 78 cents tax; that these checks were all presented to the bank the same day; the ledger sheets show a deposit on April 5 of $350 and another deposit of $150; that on April 6 the ledger sheets show checks for $250, $3, $3, $3, and tax six cents; and that the $250 check was not taxed; that this fact would indicate that this was what is called a counter check; that he never had any conversation with Fry about holding these checks; that he cannot say whether all the checks were presented on the same day; that it is unusual to have an account inactive for a long time and then have 39 checks presented on the same day; that he would not want to testify positively that some of these checks were not held for cash items. Prior to April 5, 1934, the Allen County Fair Association owed the bank $5,590.30; that on that date the obligation was paid; that the amount had been built up over several years; that on April 5 the Allen County Agricultural Society gave a new note for $150.
Shanahan testified that exhibit 32 was the resolution of the board of commissioners accepting the offer of the Agricultural Society to sell the land and assuming the indebtedness of $12,160 and appropriation of the money from the electric fund; that exhibit 34 is a copy of the claim of the Agricultural Society for $5,700 on note; that exhibit 34-A is a city warrant for $5,700 showing payment by perforation; that exhibit 34-B is a copy of a note dated December 9, 1933, for $5,590.30; that exhibits 35 and 35-A are claims of the Iola Building and Loan Association and city warrant for $6,460.
Bartlett, for the defendant, testified there was a question about where the swimming pool should be located; that he and the mayor
Defendant testified that the committee voted to put the swimming pool in Riverside Park; that a representative of the Agricultural Society appeared before the commission and offered to give the commission the land down there if the city would assume the indebtedness; that after the grant was made of money to build the swimming pool there had to be a location for it, so the deal was made; that he never had any conversation whatever with Pry about the ground; that he came and wanted the engineer’s estimate of the cost before the contract was let and he would not tell him; that Fry wanted to know so he could bid just under the estimate; that a man named Northrup advised him that it would be a good idea for the city to do the work and not have a contract, but that on account of it costing Chanute $20,000 extra to build a swimming pool by that method, he refused. On cross-examination he testified that he thought Doctor Beattie and Mr. Klein presented the proposition about the sale of the real estate to the city; that Klein owns the Klein Lumber Company; is a member of the Fair Association and he thought a director of the bank.
Cedric Wilson testified he was engineer for the proposed swimming pool; that he was present in the commission room when the proposition of buying the land first came up; that there were present three city commissioners, the city attorney and the city clerk and himself; that Hobart was opposed to buying any more land and defendant was opposed to purchasing the land; that in the general conversation the city attorney was in favor of purchasing the land, and his impression was it was the city attorney’s remarks that swung defendant over to buying the land.
F. 0. Benson testified he was president of the Iola State Bank; that he knew R. D. Fry; that he never had any dealings with R. D. Fry with reference to the sale of land for the city; that the bank had a note of the Agricultural Society for about $5,590 principal; that the financial worth of the indorsers on the note was $200,000. On cross-examination he testified he did not remember any conversation with Fry about the sale of the land; that it is not a fact
“Q. Now under expense here on the original that you have here, it appears that on this day of April 5, 1934, there is the handwriting of two different persons. A. First two items are in the handwriting of my son, Jesse Benson, cashier of the bank. The one item of $250 is in my handwriting.”
On recross-examination he testified that two officers or directors of the bank were indorsers of the note of the Agricultural Society; that there was $125 paid on the note on the day that Fry deposited the $500 in the bank.
In response to questions by the commissioner he testified that the fact that he made out the two deposit slips — one for $150 and one for $350 — did not mean that he made the deposit; the item of $250 on April 5, 1934, is in his handwriting and was paid to G. R. Gard, attorney for the bank; that one note was for $125; that it was paid in full on April 5, 1934. On recross-examination he testified that he did not have a receipt for the $250 that appears on the exhibit as expense; that he had had a receipt for it but could not find it; that he thought perhaps the county attorney had carried it away; ,the receipt was not prepared a month before, as shown on the ledger sheet; that the perforations showed that the receipt was issued the month before and this was probably caused by the clerks in the morning when they turned the stamp machine up turning the day instead of the month; that the receipt showed on its face that it was Mr. Gard’s official receipt as having been paid April 5, 1934; and that was written on the receipt in ink while the rest of it was written on a typewriter. On redirect examination he testified that the $250 was paid to Gard in cash; that on the same day the Agricultural Society borrowed $150 from the bank, and that he could not recall whether they told him what they wanted it for or not.
Frederick G. Apt, city attorney, testified he did not advise defendant the city could use the money from the sinking fund to buy the land.
A; M. Dunlap testified for the state on rebuttal that he was director and vice-president of the Agricultural Society; that he signed the note for $5,590 as vice-president and indorsed it personally; that the directors were all supposed to sign it, but they did not all do it — four of them were not on there; that the bank wanted the note paid; that he received a notice from the bank addressed to A. M. Dunlap as president of the Agricultural Society, although he was not president, and to him personally stating that the bank demanded payment of the note; and that the banking department had been making demand for the payment of the note.
On the above evidence the commissioner found the facts in favor of the defendant.
If' the testimony of R. D. Fry is believed the facts should be found for the state. Fry testified that the money was paid to defendant; the defendant denied this. Enough has already been said in this opinion about the interest of these two witnesses. We do not see as much reason for doubting the veracity of Fry as there is for doubting the veracity of defendant. Since it is the sort of a case where direct evidence of the actual transaction is difficult to obtain, we must have recourse to what facts and circumstances are available. To begin with, it is perfectly evident that the city engaged in a doubtful transaction when they bought the land. (See City of Iola v. Hobart, 141 Kan. 709, 42 P. 2d 977.) There is some evidence that the transaction was the sort of one wherein the commissioner who wielded the influence.on the commission would be apt to take a bribe. The next important circumstance is the fact that the bank was demanding payment of the note in spite of the fact that one of the bank’s witnesses testified the financial worth of the indorsers on the note was $200,000. We find the bank writing sharp letters to one of the signers demanding payment and resorting to that final threat of all bankers — that the banking department was
After a consideration of the record on this cause of action we have concluded the finding should have been in favor of the state.
We are aware that we have thus reached a conclusion on the first, third and fifth causes of action in the petition, different from that reached by the commissioner. Our duty, however, bids us examine the entire record, weigh evidence- and reach our own conclusion as to the facts. Our examination of this record impels us to the conclusion already announced.
The judgment of this court is that ouster of the defendant be ordered.