State v. Pierce

| Kan. | Jul 15, 1893

The opinion of the court was delivered by

HortoN, C. J.:

I. It is contended that chapter 61 of Laws of 1891 may be construed to permit the county commissioners of Barber county to purchase the bridges upon the highways of that county for county warrants or orders, and also that “true value” may be interpreted to mean the original cost or subscription price of the bridges. It is expressly provided therein that the bridges are to be paid for in county bonds, or their proceeds, the bonds not to draw over 6 per cent, interest, and payable not under 10 years. Chapter 61 also expressly provides that the purchase of the bridges, if made, was to be made at their “true value.” The Lake City bridge, which was attempted to be purchased, was about seven years old at the time of the order of the 7th of July, 1892. Its “true value” at the time was about $400. Its original cost was $2,680.93. In view of the express provisions of chapter 61, the county board had no authority to pay for the bridges with county warrants or orders, as there were no county bonds issued for that purpose, or any proceeds thereof to use. The board had no authority to buy the bridges at the-original cost of their construction — an amount largely in excess of their “ true value.” The proceedings of the board on the 7th day of July concerning the purchase of the Lake City-bridge at its original cost, and paying therefor by the issuance of scrip, was wholly outside of the act referred to; therefore, the defendants cannot invoke that statute for their protection.

II. It is next contended that the defendants ought not to be held personally or criminally responsible, because they claim they acted upon the advice of R. A. Cameron and A. J. Jones, two lawyers whom they consulted. The statute provides that

“The county attorney shall, without fee or reward, give opinions and advice to the board of county commissioners and other civil officers of their respective counties, when requested by such board or officers, upon all matters in which the county is interested, or relating to the duties of such board or officers, in which the state or county may have an interest.” (Gen. Stat. of 1889, ¶ 1798; Comm’rs of Leavenworth Co. v. Brewer, 9 Kas. 317; Huffman v. Comm’rs of Greenwood Co., 25 id. 64.)

The commissioners of a county have general charge of its business, but, under the statute, the county attorney is required to advise the board relating to its duties upon all matters in which the county has an interest. It seems that the advice' of the county attorney of Barber county was not requested by the board, yet it was given to it, and subsequently an injunction was served prohibiting the members of the board from purchasing or attempting to purchase any county bridge. (The State v. Pierce, 51 Kan. 241" court="Kan." date_filed="1893-04-08" href="https://app.midpage.ai/document/state-ex-rel-degeer-v-pierce-7889217?utm_source=webapp" opinion_id="7889217">51 Kas. 241, 246.) This was done, as appears from the record, before any county warrant or order was issued to pay for the Lake City bridge. It has been decided by this court that,

“ When the commission of an act is made a crime by statute, without any express reference to any intent, then the only criminal intent necessarily involved in the commission of the offense is the intent to commit the interdicted act; and in such a case it is not necessary to formally or expressly allege such intent, or any intent, but simply to allege the commission of the act, and the intent will be presumed.” (The State v. Bush, 45 Kas. 139.)

This case, upon a rehearing, was modified, but only to the extent “ that a slight departure from a directory provision of a statute, without any fraudulent intent, and which cannot injure anyone or defeat the purpose of the statute, is not unlawful.” (The State v. Bush, 47 Kan. 201" court="Kan." date_filed="1891-07-15" href="https://app.midpage.ai/document/state-v-bush-7888610?utm_source=webapp" opinion_id="7888610">47 Kas. 201. See, also, 4 Am. & Eng. Eneyc. of Law, 690; Whart. Grim. Law, 9th ed., ¶[¶84, 1582.) Under these circumstances, we are unwilling to say that the advice of the, two attorneys holding no official relation to the county board relieved the members of the board from all personal or criminal responsibility. We do not think the trial court erred in refusing to instruct the jury to acquit the defendants if they “had reason to believe that the advice and counsel upon which they relied were honestly and conscientiously given.” In The State, ex rel., v. Scates, 43 Kan. 330" court="Kan." date_filed="1890-01-15" href="https://app.midpage.ai/document/state-ex-rel-bradford-v-scates-7887948?utm_source=webapp" opinion_id="7887948">43 Kas. 330, Mr. Justice VALENTINE, concurring in the-prevailing opinion, observed: “If the members 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, have been removed from office.”

III. The further contention, against the form of the information and the evidence in supporting the counts thereof,, is more serious. We do not think that, when no account is filed or presented and a county warrant or order is unlawfully issued, such unlawful act may be divided into three or four distinct offenses. In this case, no account, claim or demand for any sum was filed or presented to the board of county commissioners for allowance. Without any written proposition being presented, or anyone appearing at the meeting of the board for the subscribers to the Lake City bridge, the order complained of was made. Strictly speaking, the order was not the allowance of an account, claim, or demand. It was merely an offer by the board to purchase .the bridge from private persons, some 78 in number. No acceptance of this offer was filed by the subscribers to the Lake City bridge, and the only person who seems to have been benefited by the order is R. Lake. Under these circumstances, we do not think any offense was established against either of the defendants, upon the evidence introduced, for the allowance of excessive sums on an account, claim, or demand, under ¶ 1888, or for the allowance of an unverified account, under ¶ 1647. It is suggested, however, that the first count of the information states an offense under ¶ 1888 and other sections. It is not usual to describe, in the same count, an offense under different sections. The offense charged in the first count, in our opinion, was attempted to be brought within the terms of the first clause of ¶1888. If that count had contained the allegation, that the county board had issued the county warrants or orders therein provided for, and thereby completed the fraud, we think both of the defandants might have been punished under ¶ 2346. But in that case there could have been one conviction only for the unlawful act or fraud of the defendants. The information, however, seems to have charged the defendants in seven counts under the different provisions of ¶ 1888, and in four counts under the provisions of ¶ 1647.

IV. The sixth, seventh, eighth, ninth, tenth and eleventh counts charged the unlawful issuance of county warrants or orders without a verified or other account having first been presented, as prescribed by ¶ 1888. To issue county warrants or orders means “to send out; to deliver; to put forth; to put into circulation; to emit — as, to issue bank notes, bonds, scrip,” etc. A county warrant or order is “ issued ” when mad e out and placed in the hands of a person authorized to receive it, or is actually delivered or taken away. So long as a county warrant or order is not delivered or put into circulation, it is not “issued,” within the terms of ¶ 1888. If a warrant or order, unlawfully directed to be issued by a board of county commissioners, remains in the hands of the county clerk, and is not delivered or sent out or put into circulation by the county clerk, or anyone else, the wrong attempted by the unlawful act does not succeed, because there is no actual issuance of the warrant or order. The trial court, therefore, should have given the instructions prayed for concerning the nondelivery and noneompletion of the county warrants or orders; but the refusal of those instructions was not prejudicial to D. L. Pierce, under the sixth count of the information, because the evidence is undisputed that the warrant or order to E. Lake was actually delivered. E. A. Lewis, the county clerk, called by the state, testified as follows:

“Ques. Now, I’ll ask you what was done after that concerning the purchase of these bridges, if anything? Ans. I do n’t think there was anything more done that day.

“ Q. What was done after that ? A. The next morning I commenced drawing scrip for the bridge.

“ Q. At whose instance did you commence drawing scrip for the bridge? A. At the request of D. L. Pierce.

“Q. What time in the morning was this? A. Some time between the hours of eight and nine o’clock in the morning.

“Q. Now, Mr. Lewis, you testified that after the signing up by defendant Pierce of this scrip for $1,738.68 he presented an order to you, signed by E. Lake, for the scrip; that he immediately took this scrip and left the office. That is right, is it? A. Yes, sir.

“Q. Now you may state what other warrants were signed by D. L. Pierce, as chairman of the board of county commissioners? A. If I remember right, there were nine others that were written up and signed just as they appear on that subscription list.

“Q. Were they the nine succeeding the name of E. Lake, as appears upon that omnibus order marked ‘Exhibit D?’ A. The nine succeeding amounts there.

“ Q. W ere each of those warrants signed by D. L. Pierce, chairman of the board of county commissioners? A. Yes, sir.

“ Q. Where are those warrants now, if you know, Mr. Lewis? A. I have the remainder of them in my office — ■ the nine.

“Q. The R. Lake warrant was the only warrant, then, that was ever taken away from your office? A. Yes, sir.

“Q. The amount of that was how much? A. $1,738.68, I believe.”

As the only warrant or order for the purchase of the Lake City bridge ever delivered or put in circulation was the warrant or order for R. Lake, the only count in the information concerning the unlawful issuance of a county warrant or order supported by the evidence is the sixth count thereof.

Our conclusion upon the whole record is, that the only offense in the information which is sustained by the evidence is the charge of the unlawful issuance of the county warrant or order in favor of R. Lake, for $1,738.68, without any account having been presented as prescribed by the statute to the board of county commissioners. In our opinion, upon the allegations of the information, the evidence does not support the conviction of James Stranathan for unlawfully allowing accounts, claims, or demands, or for allowing excessive sums thereof, for the reasons before stated. It appears from the record that the state dismissed all the counts after the fifth against Stranathan. Upon the sixth count, D. L. Pierce was properly convicted, upon the admitted facts. Upon such conviction, he was subject to a fine of not less than $10, or more than $10,000; he was sentenced, however, to pay a fine of $50 only. The judgment of the district court will be reversed as to James Stranathan, and the judgment against D. L. Pierce will be modified, affirming his sentence upon the sixth count, and reversing all the other sentences. The costs against Pierce will be retaxed.

All the Justices concurring.