Lynde v. County of Winnebago

ERROR to the Circuit Court for the District of Iowa; the case being thus:

The Code of Iowa of 1851, section 98, thus enacts:

'Each county now or hereafter organized is a body corporate for civil and political purposes only; and as such may sue and be sued; shall keep a seal such as provided by law; may acquire and hold property and make all contracts necessary or expedient for the management, control, and improvement of the same, and for the better exercise of its civil and political powers may take any order for the disposition of its property; and may do such other acts, and exercise such other powers, as may be allowed by law.'

By section 106 the county judge is made—

'The accounting officer, and general agent of the county, and as such is authorized and required. . . to take the management of all county business;. . . to audit all claims for money against the county; to draw and seal with the county seal all warrants on the treasurer for money to be paid out of the county treasury;. . . to superintend the fiscal concerns of the county, and secure their management in the best manner.'

By section 129 the county judge as a county court has power—

'To provide for the erection and reparation of court-houses, jails, and other necessary buildings within and for the use of the county.'

By sections 114-116 it is enacted that—

'The county judge may submit to the people of his county at any regular election, or at a special one called for that purpose, the question whether money may be borrowed to aid in the erection of public buildings.

'When the question so submitted involves the borrowing or the expenditure of money, the proposition of the question must be accompanied by a provision to levy a tax for the payment thereof, in addition to the usual taxes. No vote adopting the question proposed, will be of effect unless it adopt the tax also.'

Section 119 proceeds:

'The county judge on being satisfied that the above requirements have been substantially complied with, and that a majority of the votes cast are in favor of the proposition submitted, shall cause the proposition and result of the vote to be entered at large on the minute-book, and a notice of its adoption to be published for the same time and in the same manner as is above provided for publishing the preliminary notice; ''and from the time of entering the result of the vote in relating to borrowing or expending money,. . . the vote and the entry thereof on the county records shall have the force and effect of an act of the General Assembly''.'Section 94 enacts that—

'The county judge of each county having a seal is required to obtain, as soon as practicable, for his county, a new seal of the same size with the present one, and with the same device, but the inscription on which shall be 'seal of the county of _____ Iowa' (naming the county), in capital letters; and each new seal hereafter obtained, shall be of the same description,' &c.

Section 111 enacts that—

'In case of a vacancy in the office of county judge, and in the case of the absence, inability, or interest of that officer, the prosecuting attorney of the county shall supply his place,. . . and when the prosecuting attorney cannot act the county clerk shall fill the place of the judge.'

The office of 'prosecuting attorney of the county' was afterwards abolished.

These provisions of the Code being in force, Robert Clark, the county judge of Winnebago, submitted to the voters of that county, at a special election held on the 6th day of March, 1860, the question of levying a tax of seven mills on the dollars, for the purpose of building a court-house; the said tax to be levied annually, not exceeding ten years, until a sufficient amount was raised for the said purpose. The whole number of votes at the election was twenty-nine, of which twenty-four were in favor of the proposition.

No proposition was ever submitted to the voters to borrow money or to issue bonds for that or any other purpose.

The county judge then made a contract with one Martin Bumgardner to build a court-house for the county, and on account of the contract, made and delivered to him, on the 9th day of March, 1860, bonds in the name of the county for $20,000, the amount for which the court-house was to be built.

Afterwards he went to New York with Bumgardner, and profession to act as county judge of the county, made and issued to Bumgardner new bonds for $20,000, which new bonds differed in the amount of each, in time of payment, and in the amount of coupons, and in other particulars; and he had a seal made at New York, which he called the seal of the county. He then and there signed the said bonds and affixed the said seal to them, and delivered them to Bumgardner.

The bonds thus issued, and which by their terms were payable to Martin Bumgardner or bearer, contained this recitation on their face:

'All of said bonds are issued in accordance with a vote of the people of said county, and in pursuance of an order of the county court of Winnebago County, legally entered of record in the office of the county judge, on the 9th day of March, A.D. 1860, in fulfilment of a contract entered into with said Martin Bumgardner, for the erection of a court-house for said county of Winnebago. And the people of said county have voted the levying of sufficient taxes, from year to year, to pay the principal and interest of each and all of said bonds as the same mature and become payable.'

And they ended with a teste thus:

'In witness whereof I, Robert Clark, county judge of said county, have hereto set my hand and affixed seal of the said county, the 9th day of March, A.D. 1860.

'ROBERT CLARK,

[SEAL.] County Judge.'

The old bonds were now, in accordance with a proposition made by Clark when the new ones were spoken of, delivered up to Clark at New York, and were afterwards cancelled.

While Clark was in New York, making and delivering the new bonds, the clerk of the District Court of Winnebago was acting as county judge in said county, and held a term of a county court, and issued county warrants, and did other business in discharge of his duties as acting county judge.

The new bonds coming into the possession of one Lynde, who purchased them for value, without notice of any defence to them, he dying left them by his last will to his son; and neither principal nor interest of the bonds being paid, the son sued the county on them in the court below.

The facts being found by the court essentially as above stated, the court gave judgment on them for the county. To this judgment the plaintiff excepted.

Mr. H. D. Bean, for the plaintiff in error; Mr. T. F. Witherow, contra.

Mr. Justice SWAYNE delivered the opinion of the court.