State ex rel. Barrett v. Board of Commissioners

The opinion of the court was delivered by Valentine, J.:

The principal question involved in this case is with reference to the validity or invalidity of a certain purchase by the board of county commissioners of Pratt county, of certain real estate to be used for a poor-farm. The authority given by statute to the board of county commissioners to purchase laud to be used for such a purpose, and to levy taxes *645 to pay for the land so purchased, will be found in §§ 25 and 29 of the act relating to relief for the poor. (Comp. Laws of 1885, ch. 79, §§25, 29.) These sections read as follows:

“Sec. 25. It shall be lawful for the board of county commissioners, in the several counties in this state, whenever they may deem it advisable, to purchase a tract of land, in the name of their respective counties, and thereon to build, establish and organize an asylum for the poor, and to employ some humane and responsible person or persons, resident in their respective counties, to take charge of the same, upon such terms and under such restrictions as the board shall consider most advantageous for the interests of the county, who shall be called ‘Superintendent of the County Asylum” and when two or more counties shall have jointly purchased any tract of land and erected an asylum for the poor of their several counties, they shall have the power to continue such joint ownership during their pleasure; and it shall be lawful for the county commissioners of two or more counties to jointly purchase lands, erect asylums, or do other things proper and necessary for the relief and comfort of the poor within the counties forming such joint ownership as is by this act provided for their respective counties.”

“Sec. 29. To raise the sum necessary for the purchase of land, and the erection and furnishing of the buildings for such asylums, the board of county commissioners in the several counties shall have power to assess a tax on property liable to taxation for raising a county revenue, not exceeding five hundred' dollars, unless the amount of taxes to be assessed shall be submitted to a vote of the people at some general election, and a majority of all the votes cast at a poll opened for that purpose shall be in favor of such assessment.”

By virtue of the foregoing statutes an election was ordered by the board of county commissioners of Pratt county, and the election was held and the land purchased; but it is claimed that all this was void, for the reasons following:

I. It is claimed that the election was void for the reason that no record of the order of the board of county commissioners calling the election was ever made. It is true that the county clerk failed to enter of record the order of the county board calling the election, but the order was nevertheless made and published, and the election was in fact held in *646 pursuance of such order, and the people of the county generally voted at such election, and the proposition received in its favor a vast majority of all the votes cast at such election; and no effort it would seem was ever made until this action was commenced to contest the election or to set it aside, or to have it declared illegal or void, but on the contrary it was treated as legal and valid, and the rights of third parties have now intervened; and for all these reasons we think that the election should now be held to be valid. See the following cases where records were either defective or not made at all: Gillett v. Comm’rs of Lyon Co., 18 Kas. 410 ; K. C. Ft. S. & G. Rld. Co. v. Tontz, 29 id. 460 ; C. K. & W. Rld. Co. v. Comm’rs of Stafford Co., 36 id. 121; Bigelow v. City of Perth Amboy, 1 Dutch. (N. J.) 297; Taymouth v. Koehler, 35 Mich. 22 ; Bank of U. S. v. Dandridge, 12 Wheat. 64, 74 ; Hutchinson v. Pratt, 11 Vt. 402, 421 ; City of Troy v. A. & N. Rld. Co., 13 Kas. 70 .

II. It is further claimed that the election is void for the reason that the order of the county board calling the election submitted to the electors to be voted upon the question of a rate per cent, as the limit of the amount of the tax that might be assessed on the taxable property of the county, and did not fix, as it is claimed that the board should have done, a single and specific amount of money to be voted on, above which and below which the commissioners could not go in procuring a poor-farm fund by taxation; and the following cases are cited in support of this claim: Johnson v. Comm’rs of Wilson Co., 34 Kas. 670, 691 ; Mercer Co. v. P. & E. Rld. Co., 27 Pa. St. 389; Dowdney v. Mayor of New York, 54 N. Y. 186 ; also Burroughs on Public Securities, 273. We do not think that the authorities above cited are in point. In fact, the first case cited, that of Johnson v. Comm’rs of Wilson Co., is to some extent adverse to the plaintiff’s claim. The amount designated in that case was not a specific amount, but it was “ a sum not to exceed thirty thousand dollars; ” and yet the election in that case was held to be valid and binding. The next case, that of Mercer Co. v. P. & E. Rld. Co., might at first glance seem to be applicable; but even that case is not in *647 point. In that case, under the statutes of Pennsylvania the county commissioners were meye instruments for carrying out the will, intention and determination of the grand jury, and had no discretionary power of their own. Under the laws of Pennsylvania the grand jury determined everything and the commissioners determined nothing. The court in that case says: “The action of the grand jury was intended to be mandatory— a command, and not merely an authority.” The other authorities cited are not in point. Under our statutes, and especially under § 29, above referred to, we think the election held in Pratt county conferred an authority upon the board of county commissioners to purchase a poor-farm for an amount greater than $500, but not for an amount exceeding the amount that a tax of eight mills on the dollar of the taxable property of the county for the year 1887 would bring. After that election the commissioners had the power to purchase any piece of land in the county'for a poor-farm, and to pay therefor whatever it might be worth, provided of course that they kept within the limits above mentioned. Their discretion was not limited and controlled under our statutes to the extent that the discretion of the board of county commissioners in Pennsylvania was limited and controlled under their statutes. There is no statute in Kansas requiring that prior to an election such as was held in Pratt county the county board should determine and submit to the electors any specific amount of money to be voted on. Sections 17 and 19 of the act relating to counties and county'officers, providing for the borrowing of money in definite amounts, have no application to this case.

III. It is further claimed that the election is void for the reason that the abstract of the votes made at the time of the canvass of the election returns by the board of county commissioners acting as a board of canvassers was not signed as provided by law. The abstract was not in fact signed by any person. This was another failure of duty on the part of the county clerk. It does not appear from the statutes that the members of the canvassing board should sign the abstract of *648 votes, but the statute does require that the county clerk should certify and sign the same. (Comp. Laws of 1885, ch. 36, § 31.) We do not think that such failure on the part of the county clerk invalidates the election.

IV. It is further claimed that the purchase of the land was void for the reason that the land was not worth the amount which the commissioners agreed to pay for it. Now several witnesses testified that it was worth that amount, and several others testified that it was not worth that much, some of them testifying that it was not worth even half that much. In this connection the plaintiff'in error also claims that the court below erred in limiting the number of witnesses to prove the value of the land, to six on each side. Under the circumstances of this case, however, we think the court below certainly did not err. The question as to the value of the land was not directly in issue in the case, and had but very little materiality therein. The value of the land could be shown only as a circumstance tending to show either good faith or bad faith in the purchase and sale of the property. If the purchase and sale were in good faith and without fraud, it is immaterial whether the commissioners paid too much or too little for the property. Under the circumstances of the case we think that the limitation imposed by the court as to the number of witnesses was very reasonable. (Hilliard v. Beattie, 59 N. H. 462; Union Rld. Co. v. Moore, 80 Ind. 458 ; Everett v. U. R. Rly. Co., 59 Iowa, 243 ; Bays v. Hunt, 60 id. 251 .)

V. It is further claimed that the time limited by the election for purchasing a poor-farm, or for levying a tax to pay for the same, had expired before the land was purchased in this case. The election, however, furnished no such limitations. The election was held in November, 1886, and it authorized the raising of a fund to purchase a poor-farm by an assessment on the next year’s valuation of taxable property not to exceed eight mills on the dollar. The proper time for levying the tax under this election would have been on the first Monday of August, 1887, (Tax Law, §83,) provided *649 the commissioners could at that time have known that they would need the money to pay for the poor-farm within the next year, but the commissioners failed to levy the tax in August, 1887, and had not done so when they purchased the land, which was on October 6, 1887. But they still had time, after purchasing the land, to levy a tax for that year and put the tax upon the tax-roll of that year; but this action was immediately commenced and a temporary injunction allowed which prevented them from doing so; but they can still levy the tax provided they have not heretofore done so, for their failure at the proper time to levy the tax will not prevent their levying it afterward. And certainly under the circumstances of this case, their failure to levy the tax at the proper time will not invalidate their purchase of the land; and that is the only question now to be considered.

We have now examined every point presented in this case that merits consideration, and we do not think that the court below committed any material error, and therefore its judgment will be affirmed. .

All the Justices concurring.