Shepherd v. Helmers

1., Sec. 4, Ch. 36, Laws op 1876, Void. Section 4 of chapter 36 of the-Laws of 1876 is unconstitutional and void, because in conflict with § 16 of art. 2 of the constitution of the state, as the subject-matter therein contained is not expressed in the title of the act. 2. County Warrants, Registration ofPriority of Payment. The district court of Leavenworth county issued a peremptory writ of mandamus, in 1878,' commanding the board of commissioners of that county to issue-certain county warrants.for the payment of the fees of jurors incurred. in the district court of the county. H. was the holder of two of these warrants, issued and dated October 7, 1878. At the time the warrants were issued, there was not money in the hands of the treasurer of Leavenworth county sufficient to pay them. The warrants were duly presented to the treasurer for payment, November 2,1878. This was refused, and the treasurer certified oh the backs thereof, “Not paid for want of funds,” and registered them for payment in a book kept for that purpose. On February 1,1880, the warrants were again presented to the treasurer for payment, and payment we& refused. At the latter presentation, the treasurer had in his hands money sufficient to pay the same out of the general funds. Held, The warrants were entitled to priority of payment from the funds applicable therefor, and the treasurer failed in his official duty in refusing to make payment to H., the owner and the holder.

Error from Leavenworth District Court. Action by Helmers against Shepherd and McKee, because of the refusal of Shepherd, the county treasurer of Leavenworth county, to pay two county warrants issued on the general fund in payment of jurors’ services in the district court of that county, prior to 1879. The facts are fully stated in the following agreed case: “The said plaintiff, H. J. Helmers, and said defendants,. William Shepherd and John McKee, desiring to submit a controversy to the decision of the court, respectively enter their appearance, and agree upon a case containing the facts, as follows, to wit: “The said plaintiff is the owner and holder of $101 in county warrants (copies of which are hereto attached), issued, signed and executed by the 'county of Leavenworth, in the state of Kansas. Said warrants were duly issued for the payment of jurors’ fees incurred in the district court sitting in and for the said county of Leavenworth. Said warrants were issued (among other warrants for jurors’ fees) under a peremptory writ of mandamus issued by the district court of Leavenworth county against the board of county commissioners of said county, commanding the issue thereof. At the time said mandamus was obtained, and the warrants were issued, there was not money in the hands of the treasurer of Leavenworth county sufficient to pay the same, or any part thereof. The said warrants were duly presented to William Shepherd, defendant, the treasurer of said county, on the 1st and 2d days of November, 1878, respectively, for redemption by the said plaintiff, and payment thereof was demanded, which •was refused by the said treasurer, who.then and there made a certificate of the fact upon said warrants, and dated and signed the same, stating that there was not then in his hands sufficient money to pay said warrants, or either of them; and said treasurer then and there set down in a book kept by him ■for that purpose the number, amount and date of said warrants, to whom made payable, and the date when presented for payment; that said defendant, WilliamfcShepherd, is county treasurer of said county of Leavenworth, and has been such treasurer since October 7,1878; that said defendant, John McKee, is one of the sureties on the official bond of said treasurer, which said bond was duly signed, executed, and delivered in form and with conditions as by law required; that said defendant, William Shepherd, has in his hands money sufficient to pay the said warrants, and the interest thereon belonging to the general fund, (the fund out of which such warrants are payable,) if said warrants are entitled to priority of payment out of said general fund; that said funds were collected for the tax cf years previous to the tax levy of 1879. That said plaintiff again, and on the first day of February, 1880, presented said warrants for payment, and demanded payment thereof from the said William Shepherd, treasurer, and out of the aforesaid money in said treasurer’s hands at the time of said demand, but- said William Shepherd refused, and still refuses, to pay the warrants, for the reason that if he does pay them there will not remain in said fund ‘a sum sufficient to pay the fees and salaries of the county officers, clerks, and employés,’ as mentioned in §3 of ch. 120, Laws 1879. The said warrants of said plaintiff are the first in time in said registry book, and are in fact payable out of said general fund. There is due to said plaintiff on said warrants the sum of $110, the principal and interest thereon. The said plaintiff claims judgment against said defendants for the sum of $110 and costs.” The following are copies of warrants attached to the agreed statement of facts: No. 8402. $44. County Clerk’s Office, \ Leavenworth, Kansas, Oct. 7, 1878. j Treasurer of Leavenworth Co., Kansas: Pay J. F. Rapp, or bearer, the sum of forty-four dollars, for juror, Mch. ’78, D. C., cut of any moneys not otherwise appropriated. By order pf the board of county commissioners. B. S. Richards, Chairman. J. W. Niehaus, Co. Clerk. [l.s.] Gen’l fund. Indorsed on back: “Presented for payment, Nov. 1, 1878. Not paid for want of funds. “ Wm. Shepherd, County Treas. “By J. M. Gable, Deputy.” No. 8652. $57. County Clerk’s Ofeice, \ Leavenworth, Kansas, Oct. 7,1878. j • Treasurer of Leavenworth Go., Kansas: Pay to R. V. Flora, or bearer, the sum of fifty-seven dollars, for juror, Sept. ’77, D. C., out of not otherwise ' By order of the board of county commissioners. B. S. Richards, Chairman. [l. s.] Gen’l fund. J. W. Niehaus, Co. Cleric. Indorsed on back: “Presented for payment,Nov. 2,1878. Not paid for want of funds. “Wm. Shepherd, County Treas. “By J. M. Gable, Deputy.” Trial February 10, 1880, and judgment for Helmers, and against Shepherd, as principal, and McKee, as surety, for $110,' • and costs. The defendants bring the case here.