Barbour County index. [volume] (Medicine Lodge, Kan.) 1880-current, 1893-07-05
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State VS.. Pierce.

State VS.. Pierce; the motion for rehear
ing:
The State ST Kansas, ex rel, VS.. d. l.
Pierce. Error from Barber county, af
firmed. The opinion of the court was
delivered by Allen, j.
This is an appeal from an order of the
district judge of Barber county, finding
the defendant guilty of contempt OF
court in having violated an order of in.
junction issued against him by said
district judge, imposing fine of TWEEN,
ty-iYe dollars, and requiring defendant
to make restitution of certain county
scrip, issued in violation of said order
of injunction.
1t appears from the record that an
action was commenced in the name of
the state, by DeGeer, county attorney
of Barber county, against the board of
county commissioners, of whom Pierce
was chairman, to enjoIn said board
from purchasing certain bridges in Bar
Der county, and issuing bonds or scrip
of said county in payment therefor.
At the time of the commencement of
this action, temporary injunction was
granted by the district judge. The or
der granting the injunction, was served
by the sheriff, on Pierce, chairman of
the board. A SIMMONS was also issued
in due form by the clerk, on which the
words, injunction Allowed were en-
dorsed. 1t appears that after the SER
vice of the summons and copy of this
order, the defendant Pierce signed,
what is denominated, piece of scrip
for 81 1865, payable to 4. Lake, for
what was claimed to be his interest in
the Lake City bridge; that Pierce him
self, took the scrip after its having been
signed by himself and the county clerk,
away from the clerks office, and re-
ceipted for it on the clerks register
Various objections are raised by coun-
Gil for Pierce, to the validity of the or.
der Furnishing him for contempt. 1t is
said in the first place, that the judge Of
the district court of Barber county, had
of the injunction proceedings, for which
reason the proceedings were without
authority and void, and disobedience of
the order was not ground for contempt.
1t is claimed that chapter 81 of the seS-
sion laws of 1891, gave the board of
county commissioners power to do
what they were attempting to do in the
way of purchasing bridges, and that
there was no power to restrain them,
resting in the district judge, and it is urg-
ed that the validity of this statute has
already been upheld in this court, in the
case of Pierce VS.. Smith, 90 Pacific re-
porter sos. By section l, of chapter 2S,
general statutes of 1889, it is provided,
There shall be in each county organ
lied for judicial purposes, a district
court, which shall be court of record,
and shall have general jurisdiction of
all matters both civil and criminal mot
otherwise provided by law, and juris-
dlction in cases of appeal, and error
from all inferior courts and tribunals,
and shall have a general supervision
and control of all such inferior courts
and tribunals to prevent and correct
errors and abuses" Section 239, of the
act, provides 1.-THE injunction may be
granted at the time of commencing the
action, or at any time afterwards, be-
fore judgment, by the district court, or
the judge thereof, or in his apsence
from the county, by the probate Judge,
by its appearing satisfactorily to the
court, or judge, by affidavit of the plain
tiff or his agent, that the plaintiff is
entitled thereto" There can be no
question as to the power of the district
court. or the Judge thereof, in a proper
case, to restrain and control the board
of county commissioners of any county
within the judicial district Of such
judge, from doing any illegal act, ana
if the position taken by council for the
ia this case were sound, the
board of county commissioners would
have the right to determine whether
their proposed action was legal or illc-
gal, and thus reverse and set aside,
decision OF the district court. This po-
sition is utterly untenahle, 1t appears
from the record, that the original order
signed by the judge, was served on the
defendent. 1t is contended that such
service is void; that the order should
have been issued by the clerk. But it
appears that summons ESg duly Is
sued before the commencement of the
action, upon which the words "IHjunc-
ton Allowed were endorsed by the
clerk. 1t is commended that ipaSmuch
as this endorsement was not signed by
the clerk, the defendant might disre-
gard 1t. The statute does not require
the endorsement to be signed by the
clerk. 1t might be we'll for the clerk to
do so, but where an endorsement of the
kind is authorized by the statute, and
where writ is duly signed by the clerk
and attested with his seal, the party on
whom service is made is bound to take
notice of all endorsements that the law
authorizes to be made thereon. And
as the statute provides that it shall be
sufficient notice of the granting of the
injunction where such endorsement is
made, the service in this case must be
held sufficient without reference to the
question as to the suficiency Of the
service of the original order signed by
the district judge himself. The order
of injunction itself, is attacked as a
nullity. The order starts out by recit-
ing that an application was presented
to the probate judge of Barber county,
and that It was shown that the district
Judge was absent fron the county, then
follows an order of injunction restrain
ing the defendant and other members
of the board of county commissioners
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