The opinion of the court was delivered by
Valentine, J.:
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 Kan. 419" court="Ark." date_filed="1879-01-15" href="https://app.midpage.ai/document/state-ex-rel-reed-v-commissioners-of-marion-county-7884739?utm_source=webapp" opinion_id="7884739">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 *271defendants’ answer, and as thus set forth, we do not think that they show that the county commissioners acted beyond their power. In the first place, we must presume, in the absence of anything to the contrary, that the commissioners did their duty; and in the second place, we must presume, in the absence of anything to the contrary, that the court below decided correctly in holding that the said second defense did set forth facts sufficient to constitute a good defense to the plaintiff’s action. And with these presumptions in favor of the county commissioners and of the correctness of the decision of the court below, we must find, before we can hold that the commissioners (who are now defendants) acted beyond their power, that said second defense shows affirmatively that the commissioners did so act beyond their power. This we cannot do. In the former case, it was shown that said improvements were in fact a permanent county building, which was to cost at least $7,450. But in the present case, it is alleged in said second defense that said improvements are “additions, extensions and improvements to the court house of said county;” “and that said additions, extensions and improvements of said court-house are now part and parcel of said court-house,” and that they “ were necessary and proper for the immmediate use -of said county, and were urgently demanded by the business interests thereof,” and that the commissioners acted in good faith, etc., and there is nothing in the whole case that shows anything to the contrary.
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 *272were then submitted to us, we decided against the power of the county commissioners to appropriate said money, and we adhere to that decision; but in the present ease, as the facts are now presented to us, we shall have to decide in favor of their power. Probably the facts are not now truly presented to us, but the plaintiff, by demurring to the second defense of the defendants’ answer, conclusively admits that they are. But even as they are now presented to us, we think the commissioners acted very indiscreetly. In all cases where a large amount of money is to be expended, it would be better for the commissioners to submit the question of its expenditure to the voters of the county. And where there is any doubt as to the power of the commissioners to expend money without such submission, they should give the benefit of the doubt to the voters, and submit the question before they expend the same. For where they have no legal power to act, they cannot plead good faith after they have acted.
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.
All the Justices concurring.