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"The order of consolidation under this statute put all the counts contained in the four indictments in the same category as if they were separate counts of one indictment, and we are met on the threshold with the inquiry whether counts against five defendants can be coupled with a count against part of them or offenses charged to have been committed by all at one time can be joined with another and distinct offense committed by part of them at a different time.

The several charges in the four indictments were not against the same persons, nor were they for the same act or transaction, nor for two or more acts or transactions connected together, and in our opinion they were not for two or more acts or transactions of the same class of crimes or offenses which might be properly joined, because they were substantive offenses, separate and dis. tinct, complete in themselves, and independent of each other, committed at different times, and not provable by the same evidence.

“It is clear that the statute does not authorize the consolidation of indictments in such a way that some of the defendants may be tried at the same time with other defendants charged with a crime different from that for which all'are tried. And even if the defendants are the same in all the indictments consolidated, we do not think the statute authorizes the

of distinct felonies, not provable by the same evidence and in no sense resulting from the same series of acts.

While the general rule is that counts for several felonies of the same general nature, requiring the same mode of trial and punishment, may be joined in the same indictment, subject to the power of the court to quash the indictment or to compel an election, such joinder cannot be sustained, where the parties are not the same, and where the offenses are in no wise parts of the same transaction, and must depend upon evidence of a different state of facts as to each or some of them. It cannot be said in such case that all the defendants may not have been embarrassed and prejudiced in their defense, or that the attention of the jury may not have been distracted to their injury in passing upon distinct and independent transactions. The order of consolidation was not authorized by statute and did not rest in mere discretion."

In the McElroy Case the court consolidated for trial the separate offenses charged in the four indictments; in the instant case the grand jury consolidated or joined the separate offenses in one indictment. In the McElroy Case the error of the court could be corrected by setting aside the order of consolidation; in the instant case the error of the grand jury is irremediable.

In view of the conclusion reached, it becomes unnecessary to consider the other errors assigned by the defendants.

The judgment is reversed, and the court below directed to grant the defendants a new trial.

(289 F.)

MADISON BOND CO. V, SCOTT COUNTY, ARK. *

SCOTT COUNTY, ARK., V. MADISON BOND CO.
(Circuit Court of Appeals, Eighth Circuit. April 30, 1923.)

Nos. 5989, 5993. 1. Bridges oll-Limit on appropriations not applicable to bridge appropria. tions,

Crawford & Moses' Dig. $ 1985, as to limitation on "appropriations for all county or district purposes," does not apply to appropriations

for bridges. 2. Bridges Pwll-Appropriation for bridge construction not invalidated by

lack of funds.

Appropriation by a quorum court for bridge construction was not invalid, because of the fact that all of the available county funds had been appropriated, and the levy made to the full constitutional limit for general county purposes had been exhausted in specific appropria

tions. 3. Counties w 165-Warrants not void because payable at future date.

That county warrants were made payable at a future date, with provision that all should become due and payable, if any of the series were not paid when due, did not invalidate them, though the statute provides that warrants shall be present promises to pay, as the stipu

lation as to future payment, if void, could be disregarded. 4. Counties Om 165—That affidavits attached to claims for warrants were de.

fective would not prevent recovery on warrants.

Even if affidavits were defective, which were attached to claims filed by bridge-building company, demanding delivery of county warrants as stipulated in bridge-building contracts, such defects would not prevent recovery in action on the warrants sold to plaintiff by the company, if it was entitled to delivery of the warrants under the contracts, and the indebtedness evidenced by them was justly due and

owing. 5. Bridges Om 20(2)-Failure to give notice of letting bridge contract held mere

irregularity.

Failure of county to give notice of letting of bridge construction contract held a mere irregularity, not affecting the validity of the cording to its contract, 75 per cent. of the warrants stipulated as the price of the bridge, later surrendered its charter and abandoned the contract, in which abandonment the county acquiesced, held, that plaintiff purchaser of such warrants and having only the rights of the company, could not recover thereon, as one cannot at the same time repudiate the performance of a contract and claim the benefits derived from the contract.

contract. 6. Bridges On 20(2)-Payment on executed bridge contract not to be avoided

by showing mere irregularities.

After performance by bridge-building company of contracts to construct bridges, the county could not avoid payment by pleading and proving mere irregularities in the execution of the contracts, such as that the bond given by the contractor did not meet the requirements of

the statute. 7. Counties en 167–Purchaser of warrants from builder of defective bridge, ac

cepted by authorities, held entitled to recover thereon.

Where a bridge constructed for the county was inspected and accepted by the commissioners charged with these duties under the statute, and warrants were issued and delivered to the bridge builder pursuant to such report, plaintiff, purchasing the warrants from the bridge builder, was entitled to recover on them from the county, notwithstanding evidence that the bridge was defectively constructed, so

that it washed away the following spring. 8. Bridges Cwm 20(4)—Bridge construction contract held abandoned, precluding

recovery by building company.

Where bridge construction company, after unloading at the railroad station the steel for a bridge for the county and then receiving, ac For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

•Rehearing denied September 12, 1923.

Kenyon, Circuit Judge, dissenting. Appeal from the District Court of the United States for the Western District of Arkansas; Frank A. Youmans, Judge.

Suit by the Madison Bond Company against Scott County, Ark. From the judgment, both parties appeal. Reversed in part, and affirmed in part.

Thomas S. Buzbee, of Little Rock, Ark. (George B. Pugh and H. T. Harrison, both of Little Rock, Ark., on the brief), for Madison Bond Company.

Daniel Hon, of Ft. Smith, Ark., for Scott County.

Before LEWIS and KENYON, Circuit Judges, and JOHNSON, District Judge.

JOHNSON, District Judge. Madison Bond Company, a Wisconsin corporation, brought suit in the court below upon warrants issued by Scott county, Ark., the defendant. The bond company purchased the warrants from the Southern Road & Bridge Builders, Inc.

On the 7th day of September, 1918, the Southern Road & Bridge Builders, Inc., contracted to furnish “all materials and tools and erect complete in place" for Scott county three bridges, which are referred to in the record as Deep Ford bridge, Murphy's Ford bridge, and Cauthorn Ford bridge. The county agreed to pay the prices stipulated "in the following manner, to wit: Scott county scrip, 75 per cent. of which shall be due and payable when the steel for said bridge is delivered at the railroad station; the balance when said work is completed."

There was a separate contract for each bridge, identical in language, except the price agreed upon. At the date of these contracts the county was without funds, and had unpaid warrants outstanding.

The county in its answer attacked the validity of the contracts and warrants. It also alleged as defenses that the Deep Ford bridge was never constructed, and that neither Murphy's Ford bridge nor Cauthorn Ford bridge was constructed in accordance with the plans and specifications and in accordance with the contract. Equitable relief was asked, and the case was tried in the court below as one in equity.

The trial court gave judgment for plaintiff on the warrants issued for the construction of the Cauthorn Ford bridge. On the warrants issued for the construction of Murphy's Ford bridge and Deep Ford bridge, the court held: “That the warrants and certificates of indebtedness

issued on contracts for erection of bridges at Murphy Ford and Deep Ford are not valid for want of consideration."

Both parties have appealed.

(289 F.) (1) Under the statutes of the state, all expenditures of county funds must be made pursuant to appropriations by the quorum court. It is provided (section 1500 of Kirby's Digest [Crawford & Moses' Digest, § 1985]) that:

“The court shall specify the amount of appropriations for each purpose in dollars and cents, and the total amount of appropriations for all county or district purposes for any one year shall not exceed 90 per cent. of the taxes levied for that year.

On the 4th of October, 1917, the quorum court made appropriations to meet the current expenses of the county for the year 1918, aggregating $10,925. The tax levy was fixed at 5 mills. Following this the court appropriated $20,000 for the construction of the Cauthorn Ford bridge, $20,000 for the Murphy's Ford bridge, and $20,000 for the Deep Ford bridge. At the date of these appropriations the county was without funds and had unpaid warrants outstanding.

It appears from statements introduced in evidence that the appropriations made by the quorum court for current expenses for the year 1918 were slightly more than 90 per cent. of the amount which was collected under the 5-mill tax levy for that year.

It is the contention of the defendant that the appropriations made by the quorum court for the construction of the three bridges were void, and the warrants sued upon invalid, because of the 90 per cent. limitation contained in the statute above quoted. This contention cannot be sustained. The act of the Legislature authorizing the appropriation of funds for the construction of bridges (Crawford & Moses' Digest, § 824, et seq.) is legislation of similar character to that authorizing the appropriation of funds for the construction of courthouses. Referring to the courthouse act, the Supreme Court of Arkansas, in Thompson v. Mayo, 135 Ark. 143, 204 S. W. 747, said:

"It is insisted by appellant that the appropriation was void for, the reason that the quorum court appropriated more than 90 per cent of the taxes levied in the year 1916 or 1917 for the construction of the courthouse.

This court is irrevocably committed to the construction that current and ordinary expenses of the county for the year do not include expenditures for building a courthouse, and that the limitations placed upon the quorum court and county court and the agents of the county by Act 67, Acts 1879, do not affect contracts for building courthouses under sections 1009 to 1025 inclusive, of Kirby's Digest” (Crawford & Moses' Digest, s 1929 et seq.).

The construction of the court that appropriations for courthouses do not come within the limitations of the statute above quoted is, we think, equally applicable to appropriations for bridges.

21 As already stated, under the statute of the state all expenditures of county funds must be made pursuant to appropriations by the quorum court. If the quorum court made no valid appropriation for the construction of the bridges in question, then the contracts let by the county judge were invalid, and the warrants sued upon are void. It is argued by counsel for defendant that the orders made by the quorum court on the 4th of October, 1917, purporting to be appropriations, were not so, because, to use counsel's language:

40

289 FEDERAL REPORTER

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"All of the available funds had been appropriated and the levy made to the full constitutional limit for general county purposes exhausted in the specific appropriations made under the requirements of the statute. No levy was made for these attempted appropriations for bridges, and none could be made, for the maximum constitutional levy had already been made and appropriations made to cover it. Can an appropriation be made where there is nothing to appropriate?

The county did not have any part of any such appropriations, nothing to its credit, but, on the ,contrary, thousands of dollars indebtedness in outstanding warrants against the county.”

This objection is also answered by the Supreme Court in Thompson v. Mayo, supra. The court said:

“The power to make an appropriation for building a courthouse, to fix the cost thereof, and to levy a tax for that purpose, was transferred from the county court to the quorum court. This transfer of power was effected by the repeal in express terms of section 1011 of Kirby's Digest and the enactment in lieu thereof of section 3, Act 217, Acts 1917. There is nothing in the plain wording of Act 217, Acts 1917, and no language contained therein from which it might be inferred that the Legislature intended by this transfer of power to limit the quorum court in fixing the cost of a courthouse or the appropriation therefor.

There being no express language or language from which it is necessarily inferable that the Legislature intended to place a limitation on the quorum court as to the maximum cost and appropriation for building a courthouse, we do not feel warranted in extending the limitation contained in section 1500 of Kirby's Digest to the court which has heretofore been held by this court to apply to current appropriations for county expenses only. Our construction of Act 217, Acts 1917, is that the act invests the quorum court with power to make an appropriation for building a courthouse in any sum it may deem proper, regardless of the amount of taxes which may be levied in any one year in the county."

[3] Objection is made to the form of the warrants, in that some of them are made payable at a future date, with the provision that all shall become due and payable if any of the series are not paid when due. Conceding that the statute provides that warrants shall be present promises to pay, and that the conventional form provided by the statute has been departed from, we fail to see any reason, and none has been suggested, why the warrants on that account should be held to be void. If the indebtedness evidenced by them is justly owing, and the stipulation for payment at a future date is without authority of law, the stipulation may well be disregarded and judgment, given accordingly.

[4] It is urged that the affidavits to the claims filed by the Builders' Company did not conform to or comply with the requirements of the statute. Even if it be conceded that the affidavits were defective which were attached to the claims filed by the Builders' Company demanding delivery of the warrants as stipulated in the contracts, we fail to see how such defects could prevent recovery in this action, if the Builders' Company was entitled to delivery of the warrants under the contracts and the indebtedness evidenced by them is justly due and owing.

[5] The statute provides that contracts for the construction of bridges shall be let after notice, at public outcry, to the lowest and best bidder. It is alleged in the answer that these requirements of the statute were not complied with, and that they were let privately, without notice, and without competitive bidding. The files and rec

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