Shepherd v. Helmers , 23 Kan. 504 ( 1880 )

The opinion of the court was delivered by

Horton, C. J.:

The statute provides that the clerk of the district court shall keep a record of the attendance of jurors at each term of the court, and within ten days after the close of each term, the clerk shall return to the board of county commissioners a statement of the attendance of jurors at such' term and their mileage as taken by him. The statute further provides, that the fees of the jurors shall be paid out of the county treasury. (Sections 16, 20 and 21 of Comp. Laws, of 1879, pp.445, 446.) Counsel for plaintiffs in error (defendants below) contends that these provisions a're of no avail, because §4, ch. 36, Laws of 1876, renders the warrants void. This section is as follows:

“That no contract shall be made, or indebtedness incurred, or order, warrant, or evidence of indebtedness'of the county of Leavenworth be drawn or issued on the treasurer in payment of any indebtedness to exceed the amount of funds on hand in the treasury to the credit of the fund on which the order is drawn at the time, after reserving therefrom a sum sufficient to pay the fees and salaries of the county officers, clerks and employés: And, provided further, That every order or warrant drawn on the treasury shall express on its face to whom issued, and for what purpose allowed, and the same shall be payable only to such person or his order.”

On the other hand, the counsel of the opposing interest alleges that §4 is no impediment to the issuance or payment of these warrants, because the section is void by virtue of § 16 of article 2 of the state constitution. The contention over the validity of said section is really the important matter for consideration. Involved in this, is the question whether §4, or any part thereof, is expressed in the title of the act of ch. 36, Laws 1876. The title reads: “An act authorizing the board of county commissioners of Leavenworth county to' issue bonds for the purpose of funding the outstanding indebtedness of the county, and for other purposes.” The words “ for other purposes,” it is conceded, do not add anything to the expression of the title', and may be considered as surplus-age and as nugatory. The title is confined to the subject of issuing bonds for the purpose of funding the outstanding indebtedness of the county. The title and the main provisions of the act relate to past indebtedness — to an outstanding indebtedness existing prior to the taking effect of the act. Section 4 relates to filture — to new or other indebtedness. It concerns a subject different and separate from what is expressed in the title of the act. The act is in fact broader than the title, and while the part indicated by the title may stand, section 4, not being indicated by the title, must fall. We therefore hold this section to be unconstitutional, as the subject-matter therein contained is not expressed in the title. (Comm’rs of Sedgwick County v. Bailey, 13 Kas. 600; Swayze v. Britton, 17 Kas. 627.) The suggestion that said section ought to be held valid, because it tends, indirectly, to appreciate the bonds issued to take up certain county indebtedness, by restricting the issuance of orders, warrants, etc., and thereby facilitating in some degree the funding of the outstanding indebtedness, is without special merit, as such purpose is only the remote result of the provisions of the section, and not directly connected with the subject of the act as indicated by the title.

The additional point is made, that at the second time of the presentation of the warrants for payment, the county treasurer had no moneys properly applicable for that purpose, and we are referred to § 3, ch. 120, Laws 1879. We hardly think the latter statute applicable. All of the rights of the defendant in error (plaintiff below) accrued before this section became a law. The agreed facts show that the warrants were presented for payment in November, 1878, and the treasurer then duly certified the same not paid for want of funds, and properly registered them for payment according to their presentation or priority. (Comp. Laws 1879, ch. 25, § 69.) The facts further show that when again presented the treasurer had in his hands sufficient money to pay them (if they were entitled to priority of payment) out of the general funds. We think they were entitled to such priority, (§ 69, supra,) and should have been paid.

The judgment of the court below will be affirmed.

All the Justices concurring.