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Samuel R. Peters (M. G. Kelso and John C. Nicholson, on brief), for defendant in error.

Before_ SANBORN and THAYER, Circuit Judges, and SHIRAS, District Judge.

SANBORN, Circuit Judge. The questions presented by this case relate to the validity of certain county warrants issued by the board of county commissioners of Kearney county, in the state of Kansas, in the year 1888. These questions are raised by exceptions to instructions given to the jury to the effect that the plaintiff in error, H. C. Speer, was not entitled to recover upon the warrants on the evidence in the record at the close of the trial. Speer was a bona fide purchaser of the warrants in the open market. Counsel for the county present many propositions in support of the instructions of the court. Some of them challenge the validity of all the warrants. Others attack specific warrants only. Some were disregarded or overruled, while others were sustained by the court below. We can state them most clearly, and dispose of them most satisfactorily and speedily, by considering them seriatim.

The first proposition of the counsel for the county is common to all the warrants, and it was overruled by the court below. It is that the board of county commissioners had no power to issue these warrants, because it was a temporary board, appointed by the governor of Kansas under the act of the legislature of that state relating to the organization of new counties. Gen. St. Kan. 1889, pars. 1577–1594. That question, however, has been considered and decided against the county by this court in Board v. McMaster, 32 U.S. App. 367, 370, 15 C. C. A. 353, 355, and 68 Fed. 177, 179; and, after a careful review of the arguments on the subject, we are constrained to adhere to the views there expressed.

The statutes of Kansas provide that: "The board of county commissioners of each county shall have power, at any meeting:

Second, to examine and settle all accounts of the receipts and expenses of the county, and to examine and settle and allow all accounts chargeable against the county; and when so settled, they may issue county orders therefor, as provided by law." Gen. St. Kan. 1889, par. 1630.

The act relating to the organization of new counties empowers the governor, upon a proper memorial and upon adequate returns showing the population and the value of the property in the county, to appoint three persons, citizens of said unorganized county, to act as commissioners, provides that, “from and after the qualification of the county' officers appointed under this act, the said county shall be deemed to be duly organized," and authorizes these commissioners to divide the county into townships, to prepare a polling list of the legal voters in each township, to give notice of an election for the choice of township and county officers and of the permanent county seat of the county, and to canvass the votes at the election.' Gen. St. 1889, pars. 1577, 1582, 1584, 1587.

It is manifest from these provisions that duties were imposed upon, and powers were vested in, these commissioners, whose discharge and exercise required them to incur indebtedness on behalf of

the new county; and as, from the nature of the case, such a county could not have funds on hand with which to discharge such a debt, the inference is natural and logical that it was the purpose of the leg. islature to empower the commissioners, not only to incur debts, but to allow such claims and to issue such county warrants as were requisite to enable them to discharge the duties imposed upon them. When, in addition to this consideration, the express provision of the act that, upon the qualification of the temporary county officers, the county shall be deemed duly organized, is noticed, this inference becomes irresistible, and there is no logical escape from the conclusion that the temporary board of county commissioners was invested with the same powers as those given to the permanent board to incur debts, to allow claims, and to issue county warrants for legitimate county expenses.

Another proposition urged to support the instruction of the court to return a verdict for the county is that the action upon all these warrants was premature, because they were not presented to any county treasurer of the county for payment before the action was commenced. The fact is that they were presented during the year 1888, after the appointment and qualification of the temporary county commissioners, and before the election of any permanent officers of the county, to one W. P. Loucks, who was acting as county treasurer, and who indorsed upon them the fact and the dates of presentation, together with the words: “Not paid for want of funds. W. P. Loucks, County Treasurer.” Conceding, but not deciding, that an action upon a county warrant, before it is presented to the county treasurer for payment, is prematurely brought (Dill. Mun. Corp. § 501; Daniel, Neg. Inst. SS 430, 908; City of Central v. Wilcoxen, 3 Colo. 566; Varner v. Inhabit. ants of Nobleborough, 2 Greenl. 121; Benson v. Inhabitants of Carmel, 8 Greenl. 112; Pease v. Inhabitants of Cornish, 19 Me. 191; Dal. rymple v. Whitingham, 26 Vt. 346), and that Loucks was not the county treasurer of this county when these warrants were presented to him (Atchison, T. & S. F. R. Co. v. Board of Com'rs of Kearney Co. [Kan. Sup.) 48 Pac. 583, 585), there are two reasons why the judgment against the plaintiff cannot be sustained upon this ground. The first is that the only instruction which this defense would warrant was an instruction that the jury should find that the action was prematurely brought, because payment had not been demanded of the county treasurer, and the only judgment which this defense would justify was a judgment for the defendant, without prejudice to a subsequent action on the same warrants, while the instruction given was that the plaintiff could not recover, and the judgment rendered was a general judgment for the defendant on the merits. The defendant had joined several pleas in bar with this plea in abatement in its answer; and the general instruction and judgment for the defendant, without specifying upon which defense it was based, renders all the issues presented in the case res adjudicata, and constitutes a bar to all future actions upon these warrants. A general judgment for the defendant, which does not clearly show that it rests solely upon a plea that the action was prematurely brought, cannot be sustained by the sufficiency of that plea and of the proof to sustain it, where the plea in abatement is joined with pleas in bar in the

same action. House v. Mullen, 22 Wall. 42, 46; Four Hundred and Twenty Min. Co. v. Bullion Min. Co., 9 Fed. Cas. 592, 599 (No. 4,989), 3 Sawy. 634; Sheldon v. Edwards, 35 N. Y. 279, 287, 288; U. S. v. Pine River Logging & Improvement Co., 49 U. S. App. 24, 35, 24 C. C. A. 101, 107, and 78 Fed. 319, 325. The second reason why the judgment cannot be sustained on this ground is that this objection was not presented to the court below for decision, and was not con. sidered either by the court or by counsel on either side at the trial. It is plain that the objection has little, if any, merit, and that it could easily have been removed if it had been seasonably called to the attention of the plaintiff. He could have dismissed this action, made his demand, and brought another. Perhaps he could have proved that a demand had been made of the county treasurer after the permanent officers of the county had been elected. No statute of the state has been called to our attention which makes a presentation or a demand of payment of these warrants an indispensable prerequisite to the maintenance of an action upon them. If a demand of their payment was necessary, that necessity grew out of the fact that, under the gen. eral rules of law, the drawer of a draft, check, or order is not liable to suit upon it until after its presentation to the drawee for payment; and if, at any time before this action was commenced, the holder of these warrants formally or informally asked the county treasurer to pay them, and he refused, such a request undoubtedly removed the objection. Pease v. Inbabitants of Cornish, 19 Me. 191, 193.

In Kelley v. Mayor, etc., 4 Hill, 263, 266, it was held that if it affirmatively appeared that the municipality had not suffered, and could not suffer, any loss from want of presentment or of notice of nonpayment of such a warrant, neither was necessary. It is hardly possible that the county of Kearney can have suffered any loss from the failure to present and demand the payment of these warrants. It is very probable that it could have found and paid them, if it had been anxious to

A defendant cannot be permitted to present for the first time in an appellate court an objection to the plaintiff's recovery so easily removed, which he passed in silence at the trial.

It is contended that the warrants are void, and that the plaintiff was not entitled to recover upon them, because they were issued in violation of the limitation prescribed by paragraphs 1886 and 1887, Gen. St. Kan. 1889. Paragraph 1886 provides that the board of county commissioners shall not levy upon the taxable property of the county for current expenses of the county for any one year in excess of i per cent. upon a valuation of $5,000,000 and under; and paragraph 1887 forbids a board of county commissioners or county clerk to issue county warrants or orders in any one year to a greater amount than the amount of the county tax levied in the same year to defray county charges and expenses, less the amount levied for de linquencies. The proclamation of the governor appointing the temporary county commissioners, which was made on March 27, 1887, declared the value of the taxable property in the county to be $1,079,081, exclusive of railroad property, and the value of the taxable property of railroads credited to this county was $266,959.20. This made

88 F.-48

do so.

the entire taxable property of the county at that time $1,346,040.20. The amount of warrants issuable under the limitation in paragraph 1887 was, upon this basis, $13,460.40. On August 1, 1888, the state board of equalization reduced the valuation of the taxable property of this county, exclusive of railroad property, to $934,160.20, but left the valuation of the railroad property. $266,959.20. This made the value of the taxable property of the county $1,201,119.40, and the limit of the amount of issuable warrants $12,011.19. All the war. rants in suit were issued in the year 1888. They all bear numbers higher than 34, and there is evidence that they were issued in the order of their numbers. There is, however, no evidence in this record which shows to what amount warrants had been issued when any of those here in question were emitted by the county, except the fact that warrants to the amount of $10,625.75 had been issued before warrant number 34 was issued. This fact alone was clearly insufficient to prove that any of the plaintiff's warrants were issued after the limitation of the statute had been reached. On the most favorable basis for the county, the board of county commissioners was authorized to issue warrants to the amount of $12,011.19, while the utmost amount proved to have been issued before these in suit was $10,625.75; and these warrants come supported by the presumption that the officials who issued them did not violate, but faithfully obeyed, the law.

Another claim of the county is that these warrants were all fraudulently issued, without any consideration. There is evidence in this record which tends strongly to support this position. The temporary board of county commissioners of this county issued warrants to the amount of $137,543.02; it issued warrants to the amount of $21,181.60 for attorneys' fees; it issued warrants to the amount of $4,275.27 to one of its members; and it did all this in less than eight months. If the court below had been trying the facts in this case, and had reached the conclusion that these warrants were fraudulently issued, perhaps we should not have disturbed the result. The evidence may be sufficient to warrant that conclusion. But that is not the question before this court, nor was it the question before the court below.

This was not a trial by the judge, but by the jury; and it was the province of the jury to determine every question of fact concerning which the evidence was conflicting,-every question of fact the answer to which was uncertain. It is only when the evidence is free from conflict, or so clear and convincing that all reasonable men who exercise an honest judgment upon it are compelled to reach the same conclusion, that the court is justified in withdrawing the question from the jury. Railway Co. v. Jarvi, 10 U. S. App. 439, 451, 3 C. C. A. 433, 438, and 53 Fed. 65, 70; Drake v. Stewart, 40 U. S. App. 173, 178, 22 C. C. A. 104, 107, and 76 Fed. 140, 143; Railway Co. v. Hall, 87 Fed. 170. Now, while the testimony in this record may be sufficient to warrant a verdict that some of the warrants issued by this temporary board must have been fraudulently issued without adequate consideration, it is not so free from conflict, nor is it so clear and convincing, that it can truthfully be said that reasonable men might not honestly draw the conclusion from it that some, if not all, of the warrants in suit, were

honestly issued for a sufficient consideration. Take, for example, the first warrant regarding which the court instructed the jury to find for the defendant. It reads: "No. 93. County Clerk's Office.

$245.00.

“Lakin, Kansas, July 3, 1888. "Treasurer Kearney County, Kansas: Pay to L. J. Webb or bearer the sum of two hundred and forty-five and x/100 dollars, for services for counsel for Kearney county, out of any money in the treasury not otherwise appropriated. By order of the board of county commissioners. "J. H. Waterman, Clerk.

W. J. Price, Chairman." Indorsed: “Presented for payment, July 3rd, A. D. 1888, but not paid for want of funds.

W. P. Loucks, County Treasurer. “Registered No. 86. “[Seal County Clerk, Kearney County, Kansas.]”

This order was introduced in evidence. It was supported by a reso. lution of the board adopted April 3, 1888, that "F. P. Lindsay, of Lakin, Kansas, and Webb, Campbell & Spencer, of Topeka, Kansas, be, and they are hereby, employed to represent this board, and to protect the interests of Kearney county until a county attorney is elected,” by the fact that the claim of Webb for these services was allowed by the board, and by the fact, which was drawn from him on his crossexamination, that the temporary county clerk had testified in another action that L. J. Webb rendered services for Kearney county as an attorney at law between April 3, 1888, and July 2, 1888, and that this warrant was issued to him on account of his retainer. It is true that this evidence was met by the testimony of the same witness that Webb had rendered no services to the county prior to July 2, 1888; that five warrants were issued to him on July 3, 1888; and that the aggregate amount of the warrants issued to him was $12,163.94, while the sum total of all the warrants which the board issued was $137,543.02. We do not doubt that the employment by this board of attorneys to render legal services which were worth $12,163.94, if such services were ever rendered, was an indefensible and wanton abuse of its power. But it is no less certain that the board had authority to employ attorneys to give legal advice, and to render such services as the county and its officers required to enable them to enforce the rights and protect the interests of the former, and to enable the latter to discharge the duties imposed upon them in a just and legal manner. There was no county attorney, and the only way the county officers could obtain needed legal advice and services was through the employment of attorneys. Board of Com’rs v. McMaster, 32 U. S. App. 367, 370, 15 C. C. A. 353, 355, and 68 Fed. 177, 180; Commissioners v. Brewer, 9 Kan. 307, 317; Huffman v. Commissioners, 23 Kan. 197, 198. Whether or not this particular warrant for $245 was honestly issued, in payment of the fair value of such services, or was fraudulently issued, without an adequate consideration, was a question fairly presented by this evidence; but we are unable to say that the evidence was so conclusive against its validity that the court could rightfully withdraw this issue from the jury. The warrant itself was prima facie proof of the validity of the claim it evidenced. The board was empowered to hear and determine claims against the county, and to issue warrants there. for. These warrants evidence the decision and judgment of the board

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