Title: Opinion File 72-23 thru 72-37
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Permanent Link: http://ufdc.ufl.edu/WL00003325/00001
 Material Information
Title: Opinion File 72-23 thru 72-37
Physical Description: Book
Language: English
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Buddy Blain's Collections - Opinion File 72-23 thru 72-37
General Note: Box 14, Folder 3 ( Opinions 1972 - 1973 - 1972 - 1973 ), Item 10
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00003325
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
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Full Text





TO: Mo G KEY WORDS:

PM: L.MBs

RE: SWFWMD Disbursement of Checks
Varn's Memo to Schultz on September 26, 1972
MGG's Memo to Blain and Short dated September 29, 1972

I agree with your position in that the language of Section 378.33 (1),

Florida Statutes, is very specific concerning disbursement of district

funds.


I can find no case law or Attorney General's opinions directed to

this specific Section so have looked at provisions and practices

followed by other governmental units both in Florida and elsewhere.

The controlling language of the Section is "...ase5 funds shall

be disbursed only upon the order of the governing board..." The

word "only" has a well-defined meaning and is not ambiguous. Shell

Oil Co. the Manly Oil Corporation, C.C.A. Ill., 124 P. 2d 714, 715.

It is a word of restriction or exclusion, of restriction as to that

which it qualifies and of exclusion as to other things. 67 C.J.S. 498.


Black's Law Dictionary, citing an old Florida case, Moore V. Stevens,

90 Fla. 879, 106 So. 901, 904, 43 A.L.R. 1127, and other cases defines

only' as

"Solelya merely; for no other purpose; at no other time;

in no otherwise; alone; of or by itself; without anything

more; exclusive; nothing else or more."
r`-

The applicable law could be paraphrased to read "see* n funds shall

be disbursed solely, and exclusively upon the order of the governing

board."


-I --- --- -




w------------------------------.-.---------------



The word "only" used in a restrictive covenant wee synonymous with

: the word "solely" and wsae-equivalent of the phrase "and nothing else."

Thompson V. Squibb, Fla. App. 183 So. 2d 30, 32.

I have found a number of cases in other jurisdictions with similar

definitions of the word "only."


k Dicta in a 1907 Montana case, Ex parte Farrell, 92 P. 785, -eaw~

construing a similarly worded provision for a county board states:


"The use of the word 'only'...limits the power of the

treasurer to pay out the money of the county, both as

to the amount and the precedent conditions of payment.

He must not pay it out at all except upon county warrants

f' issued as directed.... the sections is therefore mandatory."


The disbursement of funds in the normal course of affairs is not

done by the board in a ministerial capacity. Discretion as to

whether or not these funds are to be paid is lodged in them and

this discretion cannot be delegated without some specific legislative

authority.


The disbursement of funds in the form of payroll checks and checks

directed by the Court to be paid into the registry of the Court is

more in the form of a ministerial function wherein the governing

board has no discretion as to such payments, having earlier speci-

> fically authorized and approved salaries and positions and having

submitted to the jurisdiction of the Court in the case of condemnation

suits.






72-25
In talking with Jim Taylor I find that the Board of County Commissioners

approves each disbursement before checks are released. I believe this

is also the case with the local school board. They have a practice of

meeting at noon each Friday, I believe, to approve payment of all bills,

even including payroll.


I can find no authority for C & SFFCD to disburse funds prior to

board approval.and I would expect the auditors to make comment on this

fact.at some future date.

I don't find any opportunity for getting around this restrictive

provision to handle any disbursements going outside or beyond

the control of the district. I do not believe these restrictions

apply to transfers within the system from one account to another

or for making time deposits or purchasing certificates.


If you want me to do anything more on this please let me know.


LMB:seb

cc: Phil Short







72-26



9/29/72 MEMO
to: BUDDY BLAIN
PHIL SHORT
fD m: MGG


Please review the attached memo from Jake Varn concerning
disbursement of checks.

It has been my position in the past that the language of
378.33 was very specific concerning the payment of checks,
and, therefore, no expenses cold be paid and checks issued
until approved by the Board.

We have made a special exception on the matter of salaries,
because salaries are a fixed amount ordered to be paid to
specific employees, and it is an administrative matter to
disburse these funds. I stretched a point for the convenience
of the salaried employees. We set up a special account,
transferred money into that account, and then had it approved
and sent it out administratively.

I would like to know whether Jake's interpretation and the
procedure that Bob Grafton has authorized at the Central
and Southrn are correct. Also, I would like some research
on the matter beyond Black's Law Dictionary and Webster's
New International Dictionary.






c_- 27


September 26, 1972



MEMORANDUM

TO: Mr. Clint Schultz, Director
Finance and Accounting Division

FROM: Jake D. Varn, Director
Technical Services Division

RE: Disbursement of Checks


1. Applicable Laws
Section 378.33(1), Florida Statutes:
"The governing board shall designate a treasurer who shall be custodian of
all funds belonging to the said board and to the said district, and such funds
Shall be disbursed only upon the order of the governing board by warrant or check
signed by the treasurer or assistant treasurer and countersigned by the chairman or
vice-chairman of the board".

2. Present Method of Disbursement
All checks, with the exception of payroll checks, checks required by court
orders and time deposit checks, are disbursed only after the Governing Board
approves the Check Register at its monthly meeting. With respect to payroll
checks, checks required by court orders and time deposit checks the Governing
Board has instructed the staff to disburse these checks in conformance with cer-
tain guidelines. More exactly, payroll checks are written every two weeks and
checks required by court orders and time deposit checks are written as deemed
necessary by the staff.

3. Question May the District disburse checks prior to the approval of the Check
Register?
The critical language of Section 378.33(1), Florida Statutes, is underlined
above ". .. such funds shall be disbursed only upon the order of the governing
board The key word is "order". According to Black's Law Dictionary,
"order" means "a command or direction authoritatively given". Webster's Third
New International Dictionary defines "order" as "to arrange or dispose according
to some plan or with reference to some end". Accordingly, it isAopinion that all
Checks may be disbursed prior to the approval of the Check Register, provided
that the Governing Board instructs the staff as to the procedure to be followed.








Additional support for this position is as follows:
1. There is only one grant of authority relative to disbursement of checks and
that is Section 378.33(1), Florida Statutes. Since we presently disburse some
checks prior to approval of the Check Register, we should be able to disburse
all checks prior to approval under proper instructions from the Governing Board.
2. I have talked with Mr. Robert Grafton, Attorney, Central and Southern Florida
Flood Control District, and he advises that its Board disburses checks weekly
and all disbursements are later approved at its Board meeting. He added that
they have used this method of disbursement for many years and have never been
criticized by the auditors.
3. As a practical matter, in the vast majority of cases the checks approved for
disbursement are to pay for a debt legally incurred by the District. Whether it
be for goods or services, we have already received and used the goods and
services and bound to pay for such.


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Ex parte FARRELL.
t:preme Court of Montana. Dec. 3, 1907.)
I liAIIEAS CORPUS-GROUNDS FOR RELIEF-
WAN T OF JURISDICTION-INFORMATION-SUF-
In INCY FACTS NOT CONSTITUTING OF-
Wllere an information states facts which
4, inot constitute the offense attempted to be
.:irge'd, and no addition to them can supply
.hat is essential, the court is without jurisdic-
,..i. the judgment is void. and imprisonment
.wir execution thereon is illegal.
t SAME-NATURE OF REMEDY-EXISTENCE OF
ilt lueY BY APPEAL.
Where an information states no offense, and
rannot be remedied by amendment, the court
I without jurisdiction, and accused is entitled
bt rel.nse on habeas corpus, even though he
*;htil cure the same relief on appeal.
Il'I. Note.-For cases in point, see Cent. Dig.
1-l. 2.5, Habeas Corpus, 4.]
,1 'lllaERY-ELEMENTS-NATURE OF INSTRU-
Sl NT-APPARENT LEGAL EFFICACY.
'In constitute forgery, the false instrument
.zt be one which if genuine would have legal
;ilhlity, hence if an instrument be such that
tchii falsely made, it shows on its face that
' bnt no legal validity, it is not the subject of
Ctrrry.
I EI. Note.-For cases in point, see Cent. Dig.
U 2:, Forgery, 28-47.]
4 STATUTES CONSTRUCTION MANDATORY
I'MoVISIONS.
I'ol. Code, 4645, provides that the clerk of
'* di.lrict court must give each juror when ex-
,**I from service a certificate, signed by him-
*( miner seal, stating the amount due him,
"'.. and on its presentation to the county treas-
'"' the amount must be paid, etc. Section
i'') provides that the county treasurer must
'."'"rs the county moneys only on county war-
'it" issued by the county clerk, etc., or as
"'rwi.eC provided by law. Held, that the two
'*Iis are mandatory, and that the treasurer
":"( pay the certificates until issued by the
s"'k. itaned and under seal.
IIo. Xote.-For cases in point, see Cent. Dig.
1' .14, Statutes, 308, 309.]
0 1)'.|"IcERS-POWERS.
'Th limit of the power of a public officer is
IStilte conferring the power, and the fur-
Ivoer necessarily implied to effectuate that
i,,',ly conferred, but where the performance
Sh'llisterial duties are expressly enjoined, and
,11"" of performance prescribed, no further
,r is implied, and the officer has no discre-

",I'or. N't .-For cases in point, see Cent. Dig.
Officers, 163-167.]
I '"T;"'RY--FORGING INSTRUMENT VOID ON
I" ACE.
I'ld1"r Pen. Code, I 840, providing that a
-lI whlto with intent to defraud another
"t llkes, alters, forges, or counterfeits a
*y" order or request for the payment of
'* It..' is guilty of forgery, it is not forgery
4.10, faIse jurors' certificates which are of no
'."'"nt legal validity because lacking the court
li'l red by law.
l:. "t,"e.-For cases in point, see Cent. Dig.
-I. 'orgcry, 28-47.]

) 1 '.,a11" corpus on application of Willian
Srrell. Applicant discharged.
tHq 11 It oote, A. C. McDaniel, and Peter
,! for applicant. Albert J. Galen, Atty.
1', Al J)ohn1 G. Brown, AssL Atty. Gen.,
00emin.t*


BRANTLY, C. J. On December 1, 190,.
the complainant, having theretofore been
tried and found guilty of forgery under each
of two informations presented against him
by the county attorney of Silver Bow county,
was condemned to serve successive terms of
14 years each, at hard labor in the state
prison, the second term to begin at the ex-
piration of the first. For execution of the
judgments he was committed to the custody
of the sheriff, who now detains him in the
county jail pending appeals to this court, the
presiding judge having certified that there
is probable cause therefore. It is alleged that
this detention is illegal, in that the acts
charged in the Informations do not constitute
forgery under the statute, and hence that the
district court was without jurisdiction to try
the complainant. The informations were
drawn under section 840 of the Penal Code.
which provides: "Every person who with
intent to defraud another falsely makes, al-
ters, forges or counterfeits any charter, let-
ters patent, deed, lease, indenture, etc..
* or any auditor's warrant for the
payment of money at the treasury, county
order or warrant, or request for the payment
of money, etc., is guilty of forgery."
At the time the alleged offenses occurred
the complainant was chief deputy clerk of
the district court. Following allegations of
venue, etc., it is alleged in the first informa-
tion that the said "William P. Farrell in his
official capacity as such chief deputy clerk
did willfully, unlawfully, feloniously, inten-
tionally, fraudulently, and knowingly make.
forge, alter, pass, and publish as true and
genuine to the treasurer of Silver Bow coun-
ty. a public corporation existing under the
laws of the state of Montana, a certain writ-
ing on paper and juror's certificate of the
tenor and effect as follows, to wit:
"To the Treasurer of Silver Bow County,
Montana. No. 3,005.
"Butte, Montana, 3/22, 1905.
"I certify that the party named herein
has served 19 days (57.00) as juror, and that
he has traveled miles for which you
will pay to J. P. Sullivan or order
fifty seven & no/100 Dollars, the amount due
him out of any money belonging to the Gen-
eral Fund.
"William E. Davies,
"Clerk Second Judicial District Court.
"Presented and registered 190-.
"Not paid for want of funds.
"By W. P. Farrell, Deputy."
Treasurer.
"By Deputy,"
-which said juror's certificate and instru-
ment in writing was then and there forged.
fraudulent, false, and counterfeited. and the
said defendant well knew the said juror's
certificate and instrument in writing was
fraudulent, false, and counterfeit," etc. The
writing set forth In tihe second information Is
thle tsme, except as to tile number, date,


Month)


7 2-31


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92 PACIFIC REPORTER.


amount, the name of the person to whom it
purports to have been issued, and that it ap-
pears to have been assigned to one Danzer.
It will be observed that the writings re-
ferred to have not impressed upon them the
seal of the court, and upon this fact the com-
plainant bases the contention, made in this
court, that they are void, and hence do not
support a charge of forgery. If this conten-
tion can be maintained, the complainant is
entitled to his release; for, as was said in
Ex parte Kearny, 55 Cal, 212, at page 228:
"This is not the case of a complaint inarti-
ficially drawn; which intimates the existence
of the facts necessary to the constitution of
the offense, or even of an attempted state-
ment, insufficient, but indicating a purpose
to declare on the essential facts. It is a
total failure to allege any cause of action,
and, however objectionable the conduct im-
puted to the petitioner, he is no more, in
the eye of the law, charged by the complaint
with any crime than if the paper had ascrib-
ed to him the most innocent of deeds." If
it were a case of a defective information
only, it might well be contended, as the At-
torney General contends here, that the dis-
trict court had jurisdiction, and that this
court should require the complainant to seek
relief through the medium of his appeals.
But if an information states facts which do
not constitute any crime known to the law,
or undertakes to state such an offense, but
the facts stated do not constitute the offense,
and no addition to them, however full and
complete, can supply what is essential, then
the court is without jurisdiction to put the
complainant on trial. In such case the judg-
ment cannot be corrected. It is simply void.
Imprisonment under execution thereon is il-
legal, and the complainant is entitled to his
release, even though he might secure the
same relief on appeal. State v. District
Court, 35 Mont. 321, 89 Pac. 63. This court
in State v. Evans, 15 Mont. 539, 39 Pac. 850,
28 L. R. A. 127, 48 Am. St. Rep. 701, held
that to constitute forgery the false instru-
ment must be one which, if genuine, would
have legal validity. This rule we find laid
down by the authorities generally. 1 Whar-
ton's Criminal Law, 680; 2 Bishop's Crim-
inal Law, 523, 524. If, therefore, an in-
strument be such that. though falsely made,
it has no legal validity, and this is apparent
from the face of it, it is not the subject of
forgery. The Attorney General does not con-
trovert the correctness of this proposition,
but insists that the writing set out in the
information purports to be, and is on its
face, a valid charge against the county of
Silver Bow, which the treasurer can be com-
pelled to pay, even though the complainant
failed to impress upon it the seal of the dis-
trict court. The solution of this question
depends upon the proper construction of the
following provisions of the Political Code:
"Sec. 4645. The clerk must give to each
juror at the time he is excused from further


service a certificate taken from a book c,,
training a stub with a like designation, slkn,l
by himself under seal, in which Imust tG
stated the name of the juror, the nulilinr ,f
days' attendance, the number of miles trav-l.
ed and the amount due, and on pre-sints
tion of such certificate to the county tri*.
urer the amount specified in the certllhii-n
must be paid out of the general fund. ntr1
the clerk must make a detailed sta:lieinll
containing a list of the jurors, the auniti,,
of fees and mileage earned by each, anti
file the same with the clerk of the board 4o
county commissioners on the first day of
every regular meeting of the board, and is,
quarterly salary must be paid the clerk un
til such statement is filed. The board nmul
examine such statement and see that it I*
correct. The clerk must keep a record of
the attendance of jurors and compute tir
amount due for mileage, and the distant'
from any point to the county seat- must Ir
determined by the shortest traveled route."
"Sec. 4350. The county treasurer nimul
5. Disbur he t n oul
s of oou- r
on county wflrrEtal issued by tbe counTy
'clerk, based on orders of the -oard of coalsi
issioners, or ad f ttrise rov

s section 4645 directory merely or inanida
tory? The same rule of construction ia
plies to the one section as to the other. Tbl
first not only prescribes the duty of the clelk
in the matter of keeping correct accounts 4f
the attendance of jurors, their mileage, etc.
but also prescribes the mode of their Im)
ment, and the evidence upon which it unti
be made. The second declares how 11"
moneys of the county must be dlisimur"
Since the payment of jurors' fees, etc.. I*
not made on county warrants issued In 1l1
regular way, the mode prescribed in *ll
tion 4G45, supra, is the mode otherwisee Il"'
vided by law" for their payment. TI
of the word "onl in section 4
owe e treasurer to pay ou te
f tte county, both as to the amount and ir
jragcint copn.T~dni of palq.. 113 ro""1
not pay it out at all except upon county wr
rants issued as directed, or in case of Jir-"'
fees, etc., upon a certificate issued I'y 1it
clerk of the district court, as directed iI *;'
tion 4G45. Section 4350 is therere 1 I'iut-
to. So sectIon 445 is mandatory, tltIi **
to the duty of the clerk and of the treasure
for the word "must" indicates that til' ill)
of the clerk becomes imperative as O"", **
a juror is entitled to his pay. It ill", 11"l1
cates that the duty of the treasurer 1.4 I"
perative as soon as a certificate, Proln*rly 1
sued by the district court clerk, is Ipret*'"u
to him. Since he cannot act at all until t111
proper demand is made upon hill. at"1 1*r1
the juror is entitled to his fees uIls1 hI' 'i
charge, it is certainly mandatory UI'N"1 '
clerk, not only to issue a certificate. f bt so" *
a certificate as the law prescribes in orglr I,
effectuate payment to the juror. ThI ml'


72-35


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EX PARTE FARRELL.


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mient of jurors is thus lodged by the law in
these two officers, without the intervention
of any discretionary board or officer. The
clerk ascertains and declares, under his hand
and seal, that the precedent conditions of
service have been fulfilled. Upon his certifi-
cate, duly executed, and upon this alone may
payment be made. These officers at in this
connection entirely in a ministerial canltv.
N'o discretion s loged.n them. In all such
cases their authority is the common t
't ia giS n the limit or their power.
The treasurer cannot ac until e clear as
performed his duty. The clerk must, there-
fore, perform his duty in the way prescribed.
If the latter issues false certificates, he vio-
lates his duty. If the former pays upon any
other demand than that prescribed, he does
the like. It ma be laid down asa enral
Princlnle, t t f a
iule liicepr Is the statute conferring the
.owr el wht further nwer is necessarily
inplied n order to effectuate that which

of expressly en h
ev n fi f p ce s re-
scribed. no further nower is Implied, nor has
te officer a discretion. He must strict
p rsue t tatu e. roop on Puhlic m-
cers, i 55. Sutherlanl Stat. Construction,
1 M-oO0. These conslderaions, it seems
TTrunis ample ground for the conclu-
sion that the certificates or orders in ques-
tion are of no actual or apparent legal valid-
ity, and that, though the purpose of the com-
plainant was to perpetrate a fraud by means
of them, the making of them. was not for-
gery.
The exact question here presented is a
new one in this jurisdiction. This court,
however, has considered analogous questions.
and has held such statutes to be mandatory.
In Choate v. Spencer, 13 Mont. 127. 32 Pac.
051, 20 L. R. A. 424, 40 Am. St. Rep. 425-
an action to quiet title to certain real estate
-the defendant claimed title under an ex-
ecution sale. The execution had been issued
upon a judgment entered on default. Sum-
mons in the case had been issued without
the seal of the court. It was held that the
sunmnons-the jurisdictional writ-under tlhe
statute in this state requiring it to bear the
Seal of the court, was void because it did
not bear the seal. In the later case of Shar-
Wlon v. Huot, 20 Mont. 555. 52 Pac. 35S, 0i3
Am. St. Iep. 645, the question involved was
whether a summons issued without the sig-
nature of the clerk was void. or voidable
only, and. therefore, susceptible of amen'l-
nlellt so as to support ln attachment, tile
Statute permitting the issuance of an at-
tailliniihnt at tile time of issuing the suinnlolls.
or at any other time thereafter. It was held
that tile statute (('lCoe 'iv. Proc. i ti:') pre-
scribing tit retuilremiients of a summnlons is
Illtlidattory, and that. witihoul tite signature
of the clerk, a fuuiiilaental part of the pro-


Sl36


cess-the summons-was void, and would not
support the attachment. These cases, while
not directly in point upon the facts here in-
volved, are entirely so in principle. A sum-
mons is a jurisdictional writ. It is the only
method by which the court can obtain juris-
diction of the defendant. Without it the
court cannot lawfully and effectively proceed.
So here, the treasurer cannot act without
the certificate of the clerk, and a certificate
under his hand and seal, both the one and
the other, is the only evidence upon which
the treasurer may lawfully proceed.
It is true that in Klpp v. Burton, 29 Mont.
96, 74 Pac. 85, 63 L. R. A. 325, 101 Am. St.
Rep. 544, it was ruled that an execution Issu-
ed without the seal of the court was voidable
only, and therefore amendableso as to sup-
port a sale of real estate thereunder. The
theory of that case was that the execution
not being a jurisdictional writ, but merely
serving the purpose of carrying into effect
the judgment in the case after the parties
had had their day in court, the defect in it,
caused by the omission of the clerk, fell with-
in the purview of the statute providing for
amendments (Code Civ. Proc. 5 774); notwith-
standing the language directing or requiring
the execution to bear the impress of the seal
is in terms mandatory. This case in no-
wise impairs the authority of Choate v. Spen-
cer and Sharmon v. Huot, supra. Any doubt
as to the correctness In any of these deci-
sions must attach to the case of Kipp v.
Burton rather than to either of the others.
The courts of other states and the federal
courts have frequently decided the same or
analogous questions. In Iowa a statute pro-
vided that each county should have a seal.
In prescribing the duties of the county treas-
urer it declared: "It is the duty of the treas-
urer to receive all money payable to the coun-
ty and to disburse the same on warrants
drawn and signed by the clerk of the board of
supervisors. and sealed with the county seal
and not otherwise." In Prescott v. Gonser.
34 Iowa, 175, and in Springer v. County of
Clay, 35 Iowa, 241, there was drawn in ques-
tion the validity of certain county warrants
of the county of Clay in that state. from
which the impression of the county seal had
been omitted. It was held that they were
not a valid charge against the county, be-
cause the requirement of the statute had not
been complied with in issuing them. The
charter of the city of St. Louis, Mo., among
other things, prohibited the auditor of the
city from auditing any claim against tle city
unless presented "In proper and fully item-
ized form." All account for a gross suin for
current expenses of the police department
was presentted to tie anuditorr of the city.
which he refusal to audit and allow. On ip-
plicatlon for manlandamus. to colmpeil hil to
audit tih' account iand Issue a voucher, it was
held that the provision of the charter was
the limit of his authority to act, and that he


Jt

J











92 PACIFIC REPORTER.


rZ


(Mont.


could not be compelled to go beyond It. State
ex rel. Francis v. Smith, 89 Mo. 408, 14 S.
W. 557.
In McCormick v. Bay City, 23 Mich. 457,
it was declared that the city treasurer was
not entitled to credit for any moneys of the
city paid out, except upon warrants regularly
drawn in accordance with the provisions of
the charter. In Reeve et al. v. City of Osh-
kosh, 33 Wis. 477, it was declared that a pro-
vision of the charter of the city requiring
all orders drawn upon the treasury to specify
the purpose for which they were drawn was
mandatory, and that orders drawn without a
compliance with this requirement were not
a valid charge against the city. Bingham
County v. First National Bank, 122 Fed. 16,
58 C. C. A. 332, was an action brought by the
bank against the county to recover a judg-
ment on warrants issued by order of the com-
missioners of the county, which failed to dis-
tinctly specify on their face the liability for
which they were drawn and when it accrued.
The statute (Rev. St. Idano 1887, 2006) re-
quires this to be done. A recovery was had
in the district court; but on error to the Cir-
cuit Court of Appeals the statute was held
to be mandatory, and that the warrants
drawn in violation of it would not support an
action against the county. In Raymond et
al. v. People, 2 Colo. App. 329, 30 Pac. 504,
the defendants were convicted of forgery of
a warrant of the city of Denver. The alleged
forgery consisted in the alteration of a war-
rant drawn for $3.50 so as to make it appear
to have been drawn for $303.50. The charter
of the city provided that every warrant for
the payment of money should show on its
face the purpose for which it was drawn.
The question was whether the fraudulent
alteration of the warrant, not drawn in con-
formity with the charter requirements, was
forgery. After a review of the authorities,
the conclusion was announced that the war-
rant was void, and hence that a conviction
for forgery could not be sustained. The court
said that no duty or liability was created
against the city of Denver by this warrant,
not even to the extent of $3.50; that no ac-
tion at law would lie upon It; that no court
of equity would enforce payment for it; and
that no city treasurer would be obligated to
recognize it, but, on the contrary, this of-
ficer was positively prohibited from paying It
In Smeltzer v. White,.92 U. S. 390, 23 L. Ed.
508, the defendant in error had sued the
plaintiff in error to recover upon a guaranty
of county warrants issued by a county in
Iowa, but without the county seal. The guar-
anty was to the effect that the warrants had
been regularly Issued and were genuine, and
the contention was made that they were gen-
uine, even though they did not bear the im-
press of the county seal. The court, after re-
ferring to the statute of Iowa touching the
duty of the auditor to issue warrants under


seal, and prohibiting the treasurer to pay
them unless so drawn, disposed of this con-
tention by saying: "It is too clear, therefore,
for debate, that the genuineness and regu-
larity of issue of county warrants can exist
only in cases when the warrants are sealed
with the county seal; and so it has been de-
cided by the Supreme Court of Iowa sub-
stantially, both in Prescott v. Gonser, 34
Iowa, 178, and in Springer v. The County of
Clay, 35 Iowa, 243. The following cases are
more or less directly in point: Argenti v. City
of San Francisco, 16 Cal. 25i; Lockwood v.
Gehlert, 127 N. Y. 241, 27 N. E. 812; Sullivan
v. Merriam, 16 Neb. 157, 20 N. W. 118; Glid-
den v. Hopkins, 47 11l. 525; Gates v. People, 11
Colo. 292, 17 Pac. 783; City of Leavenworth
v. Rankin, 2 Kan. 357; Trustees v. Cherry, 8
Ohio St. 505. No case announcing a contrary
doctrine has been called to our attention. No
distinction can be made between county or
city warrants and certificates such as the
clerk is required to issue under the statute.
Since the statute must be held to be manda-
tory, the result must necessarily follow that
the certificates or orders for the alleged forg-
ery of which the complainant was convicted
cannot be made the bases of legal liability
against the county; and since they cannot be
made the bases of legal liability, they must
necessarily be of no legal effect, and there-
fore void. A charge of forgery, therefore,
cannot be predicated upon one of them, other-
wise in proper form, which does not bear
the seal, though the recitals in it are wholly
false. The Attorney General has cited the
case of In re Terrett, 34 Mont. 325, 86 Pae.
266, and insists that this case falls within the
principle of that case. There is, however, s
clear distinction between the two. In the
Terrett Case the Instrument alleged to have
been forged appeared upon Its face to be gen-
uine, and would have furnished a basis for a
valid charge against the state, if the pre-
cedent conditions, which were falsely recit-
ed On the face of it, had been fulfilled. As a
matter of fact they had not been fulfilled.
and this court held that the making of these
false recitals, in order to manufacture the in-
strument which was apparently the basis of
a valid charge against the state, was forgery.
In this case the certificate shows upon It
face, by the absence of the impression of the
seal of the district court, that it Is of no
validity whatever.
We are not here concerned with the ques-
tion whether the complainant is chargeable
with any other crime. In so far as his deten-
tion Is sought to be justified by process issued
upon the judgments sentencing him to punish-
ment for forgery, he is entitled to his release
It is accordingly ordered that he be released
from custody.

HOLLOWAY and SMITH, JJ., concur.


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