24 Kan. 268 | Kan. | 1880
The opinion of the court was delivered by
The only question in this case is, whether the second defense of the defendants’ answer sets forth facts sufficient to constitute a defense to the plaintiff’s petition. The material question involved in the case is, whether the county commissioners of Marion county, Kansas, acted beyond their power or not, in issuing a certain warrant or order to Henry C. Koble for $4,500, and in appropriating that amount of money to make certain improvements in said county. Now while we know from the facts as set forth and shown in the cases of The State, ex rel., v. Comm’rs of Marion Co., 21 Kas. 419 and 437, that said commissioners did act beyond their power, yet we hardly think that we can know such to be the case from the facts alleged and set forth in the present case. In the present case we can know the facts only as they are set forth and alleged in the second defense of the
It is certainly true, that before the county commissioners of any county can appropriate any money for the purpose of erecting any permanent county building, it is necessary that such commissioners should first submit the question of appropriating such money, or of erecting such building, to the legal voters of the county, (Comp. Laws of 1879, p. 276, § 18; The State, ex rel., v. Comm’rs of Marion Co., supra;) 'but for the purpose of making necessary repairs or alterations of an already existing court-house, it is not necessary that the question should be so submitted. In the former case, as the facts
As to the power of the county attorney to sue in the name of the state, the question will be found decided in the affirmative in the case of Comm’rs of Harvey Co. v. Munger, ante, p. 205; see also The State v. Comm’rs of Marion Co., supra, and authorities there cited.
We cannot say that the court below erred in overruling the plaintiff’s demurrer to the second defense of the defendants’ answer, and therefore the judgment of the court below will be affirmed.