The opinion of the court was delivered by
Horton, C. J.:
Seward county was organized in 1886. In the fall of 1886 T. A. Scates, W. W. Kimball and E. A. Watson were elected county commissioners, and Oliver Leisure county clerk. The term of each began in January, 1887, and it was during the spring and summer of 1887 that the matters complained of in these proceedings occurred. The object of the action is to remove Scates from office, for alleged misconduct under § 180 of chapter 25, Comp. Laws of 1885, p. 300, which reads:
“If any board of county commissioners, or any commissioner, or any other county officer, shall neglect or refuse to perform any act which it is his duty to perform, or shall corruptly or oppressively perform any such duty, he shall forfeit his office, and shall be removed therefrom by civil action in the manner provided in the code of civil procedure.”
*334The petition alleges that the acts complained of were done “corruptly, and with the intent' to defraud the tax-payers of Seward county,” This case has been under advisement for several months. All the members of the court have carefully examined and fully considered the testimony. The differences among the members of the court as to the judgment which should be rendered, have been the cause of the delay in filing this opinion.
In regard to the claim presented against Seward county in the name of T. N. Sedgwick, for $1,500 as attorney-fees and $488 for traveling expenses, the majority of the court think that the testimony does not show that the charge is illegal.
The alleged retention or conversion of $1,513 of the claim or county warrants issued to pay the’ same by Scates, rests almost wholly upon the testimony of A. B. Carr. The majority of the court do not believe him worthy of credit, and therefore are unwilling to accept his testimony as truthful. If his evidence is rejected, or if it is held that it is sufficiently denied by the evidence of the other witnesses, there is not any testimony showing or tending to show that Scates acted dishonestly or corruptly in allowing the Sedgwick claim, or that he in any way realized any personal benefit or advantage therefrom. The writer of this thinks from the testimony that there was a corrupt agreement between Carr, Scates and G. S. Stein which resulted in the presentation of the Sedgwick claim for $1,988, and that only $475 of this went to Sedgwick, the balance being for the benefit of Scates, Carr, and Stein.
county commisliable to, charge of corruptton. Concerning the other charges alleged in the petition, the majority of the court are of the opinion that while many of the allowances made by Scates as a member of the board of county commissioners of Seward .. 1 n . county were extravagant, and several of them not strictly legal, yet that the testimony does not disclose any corrupt or intentional wrong upon his part in voting to allow these claims, or in issuing county warrants therefor. The majority of the court do not think that the testimony shows or tends to show that Scates obtained any personal ad*335vantage or benefit from the allowance of any of these claims. In support of the good faith of Scates, it is also urged by the majority of the court, that all of these claims were allowed upon the advice of able and competent attorneys. With these conclusions, however, I do not concur. As the majority of the court do not find that any of the acts complained of were done by Scates corruptly, or with the intent to defraud the tax-payers of Seward county, judgment will be rendered in his favor and against the plaintiff.
It seems unnecessary to recite or comment upon the testimony presented upon the hearing. It is very voluminous and contradictory. If the important parts were incorporated in the opinion it would cover many pages.
The defendant will recover his costs.
Valentine, J.:
I do not concur in the foregoing opinion of the Chief Justice, although I think I can say I concur in the judgment recommended. During the year 1887, T. A. Scates, W. W. Kimball and Edwin A. Watson constituted the board of county commissioners of Seward county, and during that time, and principally in April, 1887, they allowed a number of claims against the county of Seward, for which the defendant, Scates, is now prosecuted in this action. Some of such claims, as I think, were unreasonable, indeed unconscionable; and some of them, or at least portions of the amounts allowed, were illegal. In my opinion the Sedgwick claim spoken of was unreasonable, both in the amount claimed and in the amount allowed. Seward-county warrants, or in other words, Seward-county scrip, was at that time worth only about seventy cents on the dollar, and the county board generally allowed an amount on each claim, and issued scrip therefor, which if sold at its market value would bring the amount in cash of the original claim. In one instance, and one of the earliest, if not the earliest, where the claim was about $2,877, the board allowed the sum of $4,106.09, and issued scrip for the last-named amount, the difference between the two amounts being over one thousand dollars; and if the *336members of the board had been prosecuted under § 3 of the act to restrain the issuing of county warrants, and found guilty, they would, and should, in my opinion, all have been removed from office. (Comp. Laws of 1885, p. 301, paragraph 1699.) Said § 3 also applies to county clerks. Oliver Leisure was the county clerk. His case has been disposed of. [The State, ex rel., v. Leisure, 42 Kan. 272" court="Kan." date_filed="1889-07-15" href="https://app.midpage.ai/document/state-ex-rel-bradford-v-leisure-7887776?utm_source=webapp" opinion_id="7887776">42 Kas. 272; same case, 21 Pac. Rep. 1070.) But not one of the guilty parties, the county commissioners or the county clerk, has ever been prosecuted under said § 3. Scates is now prosecuted under §180 of the act relating to counties and county officers. (Comp. Laws of 1885, p. 300, paragraph 1694.) That section provides that a county officer may be removed from office for a neglect or refusal to perform his official duties, or for corruptly or oppressively performing the same, and does not provide for any removal from office for any other cause. Now there is no pretense under the facts of this ease that Scates so neglected or refused to perform the duties of his office, or so oppressively performed them, that he.could be removed from office for any such reasons; but the only claim made as against him is that he so corruptly performed the duties of his office that he may be removed therefrom. It is not claimed that he can be removed from his office because he united with the other members of the board, or either of them, in allowing unreasonable claims or illegal claims, unless it can also be said that in the allowance thereof he acted corruptly. In my opinion, as above stated, every member of the board might have been removed from office by a prosecution under § 3 of the act to restrain the issuing of county warrants, for the reason that they allowed amounts on the claims presented to them greater than the actual amounts of the claims themselves, and for issuing county warrants or county scrip which included these increased amounts; yet all the members of this court agree-that no one of them could be removed from office under §180 of the act relating to counties and county officers, for allowing such excess, unless he received some portion of the excess himself, or unless he received a bribe of some kind for mak*337ing such excessive allowance. My opinion, however, is, that if any member of the board united with the other members or either of them in allowing to himself an excessive amount on his own claim, and received the same, he might be prosecuted and removed from office under § 180 of the act relating to counties and county officers, as well as under § 3 of the act 'to restrain the issuing of county warrants. But the Chief Justice says that no instance of an excessive amount being allowed and received by a commissioner is shown by the evidence introduced in this case, and I think this statement is correct. Therefore the defendant Scates cannot be removed from office in this case unless actual and absolute corruption is shown against him; and it seems virtually to be admitted that no corruption is shown against him unless it is shown by the testimony of A. B. Carr. Now, in my opinion, in the light of all the evidence in the case, the testimony of Carr is wholly unworthy of credit, and in its material statements it is not only against a large preponderance of the evidence, but it is also absolutely untrue. Also, the county board seems in all cases, in the allowance of doubtful claims and the claims now complained of, and especially in the allowance of excessive amounts on such claims, to have acted under the advice of legal counsel and others, and under the advice of counsel for both sides in the local difficulties then existing in that county. I think the plaintiff has utterly failed in its proof as to all the allegations of its petition charging fraud or corruption as against the defendant. While he acted mistakenly in several instances under the bad advice of counsel and others, yet, from the evidence in the case, I do not think that it sufficiently appears that he acted corruptly.
For the reasons above stated, I concur in the judgment.
Johnston, J.:
While I cannot assent to all that is said in the foregoing opinions, I concur in the judgment.
Per Curiam:
Upon the authority of The State, ex rel., v. Scates, just decided, judgment in The State, ex rel., v. W. *338W. Kimball, No. 5050, will be rendered for the defendant, and against the plaintiff. The defendant will also recover all his costs.