
    Frank L. Lower et al. v. The Board of County Commissioners of the County of Morris.
    No. 11,707.
    
    (62 Pac. 1009.)
    County Treasurer—Liability for Misappropriation, by Another of World's Fair Funds. Money was appropriated by a county to aid an organization of citizens in making a state exhibit at the World’s Fair. Afterward the state appropriated money to reimburse that county, with others, for advancements. The county treasurer gave S. an order on an officer of the citizens’ organization to obtain the money due the county, if it was under his control. The money was not in his hands nor under his control, but was in the state treasury. Afterward S. presented a verified account in favor of himself and against the state, not for the money due the county, but for money “ subscribed by citizens of Morris county. ” The claim so made was audited for an amount equal to the sum due from the state to the county, and a warrant therefor was paid by the state treasurer to S., who appropriated the money to his own use. Held, in an action against the county treasurer and his bondsmen, that the state officers were not authorized to allow or pay the money due the county on the voucher presented by S., and that the county treasurer and his bondsmen are not liable for the money so misappropriated.
    
      Error from court of appeals, northern department; John H. Mahan, Abxjah Wells, and Sam’l W. Mc-Elkoy, judges.
    Opinion filed December 8, 1900.
    Reversed.
    
      M. B. Nicholson, for plaintiffs in error.
    
      John Malay, for defendant in error.
   The opinion of the court was delivered by

Johnston, J. :

This was an action by the board of county commissioners of the county of Morris against Frank L. Lower, as county treasurer, and the sureties on his official bond, for the recovery of public money alleged to have been received by Lower and for which he had not accounted. Briefly stated, the facts involved are that the board of county commissioners of Morris county appropriated $200 to aid in making a Kansas exhibit at the World’s Fair held in Chicago in 1893. The legislature having failed to appropriate money for an exhibit, an organization of citizens was effected to procure money by individual, corporate and municipal subscriptions for that purpose. Samuel T. Howe was the treasurer of that organization, and on January 19, 1892, the Morris county subscription was made on the order of the county board drawn on the general fund in favor of Howe as treasurer of the state World’s Fair committee. W. F. Shamleffer, who had interested himself in the exhibit and the subscriptions of Morris county, obtained and transmitted the money to Howe, who receipted for the same to Frank L. Lower as county treasurer. Later, and in 1893, the legislature of Kansas made an appropriation for a Kansas exhibit at the World’s Fair, as well as to reimburse parties, corporations and counties that had voluntarily contributed money to that end. (Laws 1893, ch. 3.) On February 24, 1894, Shamleffer procured from Lower, as county treasurer, an order on Howe requesting the latter to pay to Shamleffer the two hundred dollars subscribed and paid by Morris county, if the fund for that purpose was in his hands or under his control. When this order was presented to Howe he informed Shamleffer that the money for the payment of such claims was not in his hands or under his control, but was in the state treasury, and would be paid by the state treasurer on the presentation of a proper voucher. Shamleffer went to the state auditor’s office and presented the claim in his own behalf, in the following form :

“The State of Kansas, ToW. F. Shamleffer, Treas., Dr. March 2, 1894, For amount subscribed by citizens of Morris county to the World’s Fair, 1893,.................$200 00
“State oe Kansas, Shawnee County, ss.
“ I do solemnly swear that the above bill is just, correct, and remains due and unpaid; that the amount claimed therein is actually due according to law.
(Signed) W. F. Shamleeeer.”
“Sworn to and subscribed before me, this 2d day of March, a. d. 1894. A. P. Shreve, Notary Public.”

The voucher so made was audited and allowed, and a warrant based thereon was issued upon the state treasurer, who paid the money to Shamleffer. The amount so drawn has never been paid to Lower, either as county treasurer or otherwise, and it has never been covered into the treasury of Morris county, but has been retained and used by Shamleffer for his own individual purposes, he claiming that he had a right to the same, on the ground that Morris county owed him for services rendered over twenty years before.

Neither the county treasurer nor the sureties on his official bond are liable for the money so obtained and misappropriated by Shamleffer. The county treasurer did not draw the money belonging to Morris county from the state treasury, nor did he authorize any one to draw it from the state for him. He gave Shamleffer an order for the money, it is true, but it was on Howe, a private citizen, and as he had neither possession nor control of the funds out of which the claim was to be paid, the order was not honored. The money was paid by the state officers upon a claim made by Shamleffer himself against the state, and not on one made in behalf of the county by Lower ; and, besides, the claim paid was not for money due to the county, but it was for an “ amount subscribed by citizens of Morris county.” No claim was presented in behalf of the county treasurer, nor for the payment of money belonging to the county, and the state officers were without warrant to allow or pay out the funds of the county on the voucher presented. The two hundred dollars due the county was not received by the county treasurer, nor was it drawn.from the state treasury; and hence, no liability has arisen therefor against Lower or his bondsmen.

The judgment of the court of appeals will be reversed and the judgment of the district court will be affirmed.  