State v. School District No. 3

34 Kan. 237 | Kan. | 1885

The opinion of the court was delivered by

Valentine, J.:

i Petitionconsu-uedS ljbeiniiy. The only ruling of the court below complained of in this case is, the sustaining of an objection made by the defendant to the introduction of any evidence under the plaintiff’s petition, upon the ground that the petition did not state facts sufficient to constitute a cause of action against the defendant, and the dismissal of the plaintiff’s action upon the same ground. Preliminarily, we would say that such an objection is not favored by courts, and that where the sufficiency ^íe Potion is raised for the first time and only by such an objection, the courts will construe the allegations of the petition very liberally for the purpose of sustaining the petition, if it can reasonably be sustained. (Barkley v. The State, 15 Kas. 99, 107; Mitchell v. Milhoan, 11 id. 617, 625, 626, and cases there cited.)

2' strument11" as part of contraction Also, in this ease, besides the direct allegations contained in the body of the petition, copies of the bonds and coupons sued on were attached to and made a part of the petition; and therefore in construing the allegations of - . , 0 ™ie petition the contents of the bonds and coupons as contained in such copies must also be considered as a part of the petition. (Budd v. Kramer, 14 Kas. 101, 102, et seq. See also Reed v. Arnold, 10 Kas. 103; Campbell v. Blanke, 13 id. 64; Andrews v. Alcorn, 13 id. 351.)

Besides, § 123 of the civil code provides, among other things, that—

“ In an action, counterclaim, or set-off, founded upon an account, promissory note, bill of exchange, or other instrument, for the unconditional payment of money only, it shall be sufficient for a party to give a copy of the account or instrument, with all credits and the indorsements thereon, and to state that there is due to him on such account or instrument from the adverse party a specified sum, which he claims with interest,”

3. The state, runs’against— when not. The first objection made by the defendant to the plaintiff’s petition is, that a portion of the forty-two causes of action set forth therein is barred by the five-years statute of limitations contained in the first subdivision of §18 of the civil code. But this objection can certainly avail nothing; for if any one of the several causes of action set forth in the plaintiff’s petition is good, the court below should not have sustained the objection of the defendant to the introduction of all evidence under the petition, and should not have dismissed the plaintiff’s action. The action was commenced on December 18, 1882, and at least fourteen of the several causes of action set forth in the plaintiff’s petition accrued within less than five years prior to that time. These causes of action cannot therefore be considered as having been barred by any statute of limitations when this action was commenced. But are any of the causes of action set forth in the plaintiff’s petition barred by any statute of limitations? Now it is universally held by courts that no statute of limitations will run against the , ° state or the sovereign authority unless the statute p;ge]f expressly so provides, or unless the implications of the statute to that effect are so strong as to be utterly unavoidable. It requires no citation of authorities to sustain this proposition. Even where there is a doubt as to whether the state was intended to be included within the provisions of the statute, the doubt must be solved in favor of the state and-the state held not to be included. (Des Moines Cownty, to the use of, &c., v. Harker, 34 Iowa, 84, and cases there cited.) And even where the state holds the claim or debt sued on, as the assignee or transferee of some individual person, still the statute of limitations will not run against the state where such statute had not commenced to run before the state obtained the claim or debt. (United States v. White, 2 Hill, 59.)

We need not decide the question whether the statute would continue to run, and to run against the state, where the state procured the claim or debt after the statute had commenced to run, for no such question is involved in this case. We think that no statute of limitations has so run against the state in the present case as to bar any of the causes of action set forth in the plaintiff’s petition.

4. School "bonds; purpose, unrecited. The next question urged by the defendant against the plaintiff’s petition is, that the bonds set forth therein and sued on do not state, as required by the statute, the purpose for which they were issued. The bonds were issued under § 1 of an act entitled “An act to enable school districts in the state of Kansas to issue bonds,” approved February 26, 1866, as amended by § 1, chapter 95, of the Laws of 1872; and that section provides, among other things, that “they [the bonds] shall specify on their face the date, amount, for what purpose issued, to whom, the time they run, and the rate of interest,” while the bonds in the present case do not in terms specify for what purpose they were issued. We think, however, under the pres- . , t ,1 ,. ent circumstances aud. as the question is now pre- # 1 • sented, that the bonds are sufficient in this respect. It must be remembered that the question has been raised only by an objection to the introduction of evidence under the petition. It must also now be considered that the bonds were issued in good faith; that the school district received ample compensation for them; and that the state of Kansas is an innocent and bona fide purchaser of them; for nothing appears to the contrary in the petition,, and all the allegations of the petition would tend to indicate this. We have stated that the bonds 'do not in terms specify upon their face the purpose for which they were issued; but we think they do in effect. The bonds specify on their face that they were “issued in pursuance of an act of the legislature of the state of Kansas, entitled ‘An act to enable school districts in the state of Kansas to issue bonds,’ approved February 26, 1866, and acts amendatory and supplemental thereto.” Now under that act bonds could be issued only for one purpose — that of providing a school house for the district, either by erecting or purchasing the same. It is true that it was not necessary that the bonds should recite the act under which they were issued, and it was necessary that they should recite the purpose for which they were issued; but as the bonds did recite the act under which they were issued, and as that act authorizes bonds to be issued only for one purpose, the bonds do in effect recite the purpose for which they were issued.

s suit on school ofactioua,lse stated. The next point made by the defendant is, “that none of the several counts of said petition allege or show that the conditions Prece<^enfj or any of them, had been complied with when said bonds were made and executed.” We think the petition is sufficient. It alleges that the school district made and issued the bonds; that it made and issued them by its proper officers, for value received; and copies of the bonds are given and made a part of the petition, which show that the bonds were issued in pursuance of the said act of the legislature of 1866, and the acts amendatory and supplemental thereto; and we think the bonds are valid upon their face. (See § 123 of the civil code above cited.) Presumptively, the school district and its officers acted in good faith and according to law, and the officers did their duty; and if anything was done or omitted that would render the bonds invalid, it is for the defendant to set the same up in its answer as a defense. In this connection we would cite the case of Mosher v. School District, 42 Iowa, 632.

6. Consideration, not stated in petition. The fourth and last objection made by the defendant to the plaintiff’s petition is, “that none of the several counts of said petition allege or show that the conditions precedent to the sale of said bonds had been complied with when said bonds were negotiated and sold, or that they were sold at a price fixed by the district, as required by law.” What has been said with reference to the last preceding objection may be said with reference to this. The petition alleges that the bonds were made and issued by the school district and its officers, for value received, and the copies of the bonds show that they were made and issued in pursuance of the statute in such cases made and provided, and presumptively they were made and issued in accordance with law. It was not necessary for the plaintiff to state in its petition the amount of the consideration „ í-i.ii i • , ,, . „ , tor which the bonds were issued, or the prices fixed < ^ < -L by the qualified electors of the district for the sale of the bonds. "When the bonds were issued they passed from the district and beyond its control, and into other hands, and presumptively they were valid; but if for some reason they were not valid, it devolves upon the defendant to allege and prove their invalidity. The petition certainly does not show that they are invalid, but on the contrary shows that they are valid.

The judgment of the court below will be reversed, and the cause remanded for further proceedings.

Horton, C. J., concurring. Johnston, J., having been of counsel, did not sit.

Case Details

Case Name: State v. School District No. 3

Court Name: Supreme Court of Kansas

Date Published: Jul 15, 1885

Citation: 34 Kan. 237

Court Abbreviation: Kan.