ARMOUR
BROB. BANKING CO. {,; BOARD COUNTY COM'BBi FINNEY CO'ONTY.
82t
of hia own act. You wiUfind for the plaintiffs on the counter-olaim. Upon the main case, you will first determine, from the evidenoe beforeyouj what was theoontract on the part ofthe plaintiffs. Then, was it performed by them? Did they deliver ice of the quality and quantity they had agreed to deliver? If they did, giye.theniafull verdict. If they did not, ascertain from the testimony what was the deficiency in quantity or quality, or both. Fix the value of such in money, and deduct this sum from the principal of the claim., unless you find a totai deficiency. In such case, your verdict must be for the defendant. The burden of proof, under the pleadings, is on the defendant.
ARMOUR. BROS. BANIONG Co.
'D.
BOARD
OF COUNTY COM'RB .OF FINNEY
COUNTY. (Circuit CfYUIl't, D. KanBaB. February 4,181)0.) VOTES-ASSESSMENT OJ' SPECIAL Tu:. . Under Compo Laws Kan. 1885. § 8759, relating to thepurchaae of lands fora poorfa.rm, and. providing that "to raise the SUIn necessary for the purchase of land * * * the board of county commissioners * :" * shall have power to assess a tax * * * not exceeding $500, unless the amount of .taxes to be assessed. !!hal1 bo submitted to a vote of the people at some general election. and a. majority ofal1 : the votes oast, at a poll opened for that purpose, shall be;n myor of such ,assessment, " it is sufficient if the proposition receives a majoriti,of all the votes'cast on that particUlar proposition, and it is not necessary that it should receive a ma.jority , of all the votes oast at the election.
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At Law. . Geo., R. Peck, A. A ·. Httrcl, and Robt.· Dunlap, for .plaintiff. H. F. MaBon and Johnson, Martin &- Keeler, for defendant· . FOSTER, J. The plaintiff brings suit against the board of countycotnmissioners of Finney county to recover the sum of $12,480, evidenced by 25 warrants or orders made by said board of county commissioners on the,!tlleasurer of said county, of which the following isa copy: "No. 1.374. COUNTY CLER¥:'S OFFICE. $500.1;)0. . "GARDEN CITY. Jan. 11.1387; "7'rea8U1'er of FinneyOounty. Kansas: Pay to A. H. Burtis the sum of five hundred dollars for part payment of part of N. E. :;. and'lot 30f S. E. i. of Sec. 15. T. 24. 33 W.· to be paid ;laper special tax voted Nov. 2. 1886. By order of the board of county commissioners. "A. H.BVRTIS. Clerk. G. W. WRIGHT. Chairman. "[Indorsed:] Presented for payment, but not paid for want of funds. this 15th day of January, 1887. D. R. MENKE, County Treasurer. "Registered No. 12." This case is submitted to the court on an agreed statement of facts,the material part of whioh is as follows: At the regular general election held cinNovember 2, 1886, there was submitted to the voters of Finney county a proposition by which an amount of taxes, to be asses,sed for the
v.41F.no.5-21
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. ,J'EI>EBAL
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were· cast in favor of and against said proposition at the same polls, and
purchase of a poor-fa.rm, should be,liidsedrthat at such .election votea ,
wherein the votes for county and state officers' cast j thatat said election 2,887 votes were cast by voters of Finney cotmty for the various candidates for county and state offices; that at said polls at said time there was also cast, in, favor of the proposition to aSS,eBS taxes for the purposes above referred to, 1,133" votes, and against the: proposition 394, votes; that the said votes were duly canvassed by the, board of county commissioners, and it was declared that the said proposition.' had carried, bya majority of 739 votes. 'J;hereafter said board of county commissioners advertised for bids or offers to sell said Among other bids sent in, there was one county lands for a by A. H. Burtis, and, his being the best offer, the county commissioners purchased his said farm, and said Burtis executed to said commissioners 'b, doeea:6fgeneral warranty therefor, and saidcduntynow owns and holds said land. In payment therefor the said board of county A. H.Burtis, on the. 11thday of January, commissioners issued 1887, the said warrants "01' orders before referred to. Said Burtis afterwarrants to the wards sold and ",hich' is organized and existing under the laws of the state of Missouri',:.:and this 8 <;:tionis brought upon said warrantS or orders. The law under which tlifJ l;llection wlt/!lhad is as follows: "Torais,'" tlie.suill neeesaary for the purcllase of land. and the erection an'd aayltims, the board of county commissioners in the several counties shall have power .to ,assl!ssatax onprQperty liable to taxation for railling a county revenue. not exceeding five hundred dollars. unless the amount of taxes to be assessed shall be submitted to vote of the people a,nd a lDajority of all the votes cast. at a poll opened'ttir tllatpurpolile. shall be in favor of such assessment." .Comp. Laws 1885. 8759. ' " . . , "f!. I· " . , .
. The only< ,question invQ.hed.is a construction of said section. Doesit mean amajodty of all the'votes cast,',or a majority ,orall the votes cast, on that subjeot)?,> There ;were2,887. cast for county and state offi:cers at and,onlyil,52Z(on,thematterofb'tlying a faam and; assessment toll",yJor the,6l1me,-1.'33 votes in favor, and. ,rhe to justify the board of county debt, it should majqrwhile i . only" am,"JqfJJ,bo{a.ll c!Ult, on that subJed wasreqUlred. The: law says: "UnlllSSthe amount of taxes to be besubJ;l'litted. to advoteofthe :people a:t1some general election, and,a, lnll-jOritYiOJ all the votes.cast,al!,a 'poll opebed:for that purpQ'Se shall be inJa.vor of such assessmlinti;ll, ; The of all the votes cast,'" doliot'lllean" cast at a poll opened for the purpose of a general election, but cast for the'purposedf:such!:asscsslllent, at a poll opened for that purpose.:If the had ;been otherwise, instead of saying, "at a poll opened: fOT that purpose/, the wordS !'atsaid election".after the word "cast", would have clearly expressed' the meaning defendant contends for.
It is probable the law contemplates aseparflte p011'orballot-box, but 1llldoubtedly the samepoli could be used as was .\lsed for county and
stlite officers. Reading the statute in this manner sOlves the probleml· The following authorities amply support the conclusion that only 3maJority of the yotes cast on the subject of the assessmertt were requirei:V: Commissioner v. Winkley, 29 Kan. 36; State v. Echo18 j 20Pac. Rep. 523; ,aiBB 00. v. Johnston, 95 U. S. 369; Walker v. OBWdld, 11 AU. Rep. 711; v.Palmer, 20 Wis; 572; Sanford v. Prentice,28 Wis. 358. My 'attention has been called by defendant to the case of Jones v. Lanca8ter 6 Neb. 474,and State v. Winkelmeier, 35 Mo. lOB. These cases ate in conflict, to some extent, with the cases before :cited, but arenotrin 'conflict with our views in the ,case at bar, inasmuohas the statutes were 'entirely 'different. The 'Nebraska constitution provided as follows: , sball pro'vide,1 by general law. for township organization, under which any county may organize whenever a majority of the legal voters of sucb county voting at any election shall so,determine. .. Article 10,
§5. It will be observed the words used are, "a majority of the legal ',wters of said county." The Missouri statute used the words, "when ized by a majority of the legal voters of the respective cities." Nosuch words are ,used in the Kansas statute; under which this vote was had. Under similar provisions as the Nebraska and Missouri actsabovf:' referred to, the cases first above, cited hold that the assent of those not voting ontha subject was to be presumed by their silence to the action of the majority. It is not necessary for this court to discuss the different views expressed by the several courts in those cases, as this statute only requires,a majority of the votes cast for the purpose of the assessment, and fOl'that purpose there is a majority of 739 votes; so the defendant had full authority to issue the orders sued upon, and judgment must go fOltbe plaintiff.
DAVENPORT
et ale v.
PRINcE.
(Circuit Oourt, E. D. New York. January 18,1800.) PABTIES-J'OINDER-CONVERSION Oil' TRUST FuND.
Under Code mvllProc.N. Y.,,§4i6, proViding tbataU persons having an Interest in the subject of the action may be jomed as plalntU!s; and section 1204, that judgment may be given for or against one or more plaintiffs, and for or against one or more defendants, and that sucn judgment may determine the ultimate rights of the parties ou the same sidet as between themselves, persons having separate interests in a trust fund may jOln in an action against the trustee for ita 1088 or conversion.
At Law.
On demurrer to complaint. Benj.E8te8, for plaintifflil.' JohnS. Davcwport, for defendant.