(dissenting). — I am unable to concur in either the opinion or the judgment in this case. It seems to me the court has not only overlooked the real question presented by the record, but has decided erroneously the question thought to be presented.
Taking up, first, the question decided by the court, it will be observed, from the statement made at the opening of the main opinion, that this is not a case where no warrant has been issued, as a matter of fact, for the appellant’s claim. On the contrary, a warrant has not only been issued in fact for that claim, but it has been actually paid by the county treasurer. Wrongfully issued and paid, it may be, but issued and paid in fact, nevertheless. But the majority, as I understand it, do not rest their decision on the ground that no warrant in fact has been issued, but hold that a warrant is not “issued,” as a matter of law, imless it is actually delivered into the hands of a person authorized to receive it. In other words, a wrongful issuance of a county warrant is not an issuance, within the meaning of that term as used in the statute.
T am frank to say I can find no satisfactory reason for this distinction, nor do I think it is supported by the authorities cited in the opinion of the court. The statute does not undertake to define the term, and hence must be taken to have used it in its commonly accepted sense. That sense is sufficiently indicated by the definition quoted in the majority opinion. It is at once apparent, however, *48that that definition is as applicable to a warrant wrongfully issued as it is to one delivered to a person authorized to receive it. When it is delivered to a person not authorized to receive it, it is “sent out;” it may be “delivered for use;” it is “emitted;” and may be “put into circulation;” any one of which acts amounts to an “issuance,” according to the definition. And this, it seems to me, accords with the reason of the thing. In common parlance, to issue a county warrant means to take or send it out of the issuing office for use as a county warrant. Surely the lawmakers would not have so far departed from common usage as to use the word “issue,” in the sense of “actually delivered into the hands of a person authorized to receive it,” without saying so in express terms.
But it is said that the question was expressly decided in accordance with the ruling of the majority in the ease of State v. Pierce, 52 Kan. 521, 35 Pac. 19. I do not so understand that case. There the defendants, who were members of the board of county commissioners of Barber county, state of Kansas, were informed against for doing certain acts as members of such hoard. The information contained eleven counts. The first count charged that the. defendants unlawfully and fraudulently committed a fraud in their official capacity, and under color of their offices as members of the board of county commissioners, in unlawfully allowing greater sums on accounts against the county than were actually due thereon. The second, third, fourth, and fifth counts charged the defendants with allowing certain accounts in favor of certain named persons without such accounts being made out in separate items, or being verified according to the statute. The sixth, seventh, eighth, ninth, tenth, and eleventh counts charged the unlawful issuance of county warrants to the *49above named persons, in violation of the terms of tbe statute. Of tbe warrants ordered, only one — the subject of tbe sixth count — was in fact delivered, tbe others being, at tbe time of tbe trial, “in the office of tbe county clerk, and bad not been delivered to any one.” One of tbe defendants was convicted on all of tbe counts of tbe information, and tbe other on tbe first five. Both appealed. One of tbe contentions was that tbe defendant Pierce was wrongfully convicted on tbe sixth, seventh, eighth, ninth, tenth, and eleventh counts, because tbe warrants described bad not been issued. Speaking to this question tbe court said (see, 52 Kans. 528, 35 Pac. 22):
“To issue county warrants or orders means ‘to send out; to deliver; to put forth; to put into circulation; to emit — • as, to issue bank notes, bonds, scrip,’ etc. A county warrant or order is ‘issued’ when made out and placed in tbe bands of a person authorized to receive it, or is actually delivered or taken away. So long as a county warrant or order is not delivered or put into circulation, it is not ‘issued,’ within tbe terms of Sec. 1888. If. a warrant or order, unlawfully directed to be issued by a board of county commissioners, remains in the bands of tbe county clerk, and is not delivered or sent out or put into circulation by the county clerk, or anyone else, the wrong attempted by tbe unlawful act does not succeed, because there is no actual issuance of tbe warrant or order. Tbe trial court, therefore, should have given tbe instructions prayed for concerning tbe nondelivery and noncompletion of tbe county warrants or orders; but tbe refusal of those instructions was not prejudicial to D. L. Pierce, under the sixth count of tbe information, because tbe evidence is undisputed that tbe warrant or order to R. Lake was actually delivered. ... As tbe only warrant or order for tbe purchase of tbe Lake City bridge ever delivered or put in circulation was tbe warrant or order for R. Lake, tbe only count in tbe information concerning tbe unlawful issuance of a county warrant or order supported by tbe evidence is tbe sixth count thereof.”
*50This is all that is said in the opinion that is pertinent to the question here. It will be noticed that, while the court does say that a county warrant is issued when it is made out and placed “in the hands of a person authorized to receive it,” it adds, in the same connection and as a part of the same sentence, the phrase “or is actually delivered or taken away;” showing to my mind, that a wrongful delivery would be, in the opinion of the court, an “issuance” of the warrant. This conclusion follows, also, from the tenor of the case. The court permitted the conviction to stand on the sixth count, because the warrant mentioned in that count had been delivered and put in circulation. But that warrant was never de^livered to a “person authorized to receive it.” It could not be so delivered. It was wrongfully and fraudulently ordered drawn and issued, and its taking from the clerk’s office by the person in whose favor it was drawn was as much an unlawful taking, both in law and morals, as would be its taking by a stranger to the record.
The case cited from this state seems to me also to be equally far from the question. The quotation made in the majority opinion from that case covers everything said that is at all pertinent, but even that shows clearly that the court did not then have this question in mind.
There is a case from this court, however, not cited in the main opinion, which seems to me to be very much in point. I refer to the case of State v. Raby, 31 Wash. 111, 17 Pac. 711, where a judgment convicting the county auditor for embezzling the very warrant in question here was affirmed by this court. In that case we said:
“By virtue of his office, defendant became the legal custodian and bailee of the warrant by operation of law. He therefore had the warrant rightfully in his custody, and also, by operation of the law, held it as the agent of *?the owner. When he assumed the duties of the office, he assumed to act as agent for the owner, under provisions of the law, and he is estopped from denying such agency. If he is agent to receive the money for the owner, he is agent to deliver it to him. It would certainly he a puerile law that would constitute a public officer an agent to receive money for one with whom the municipality is dealing, and allow him to deny the agency for the purpose of escaping punishment for embezzling such property. The objection that there was no value to the warrant until it was delivered, and that the ownership was not properly alleged, is equally untenable. The warrant was duly authorized, legally drawn and issued by the proper officer for an approved claim against the county, by order of the proper authorities. Its proper place was in the auditor’s files, and, when it was removed from those files by the officer and cashed, it was so removed and cashed because it was of value, notwithstanding the fact that it had not yet heen delivered to the proper owners.”
Unless this be dictum, and I am convinced it is not, it is a direct holding by this court that this very warrant was actually issued by the county, auditor. It seems to me, therefore, hoth on reason and authority, that this warrant should be held, on the facts recited, to have been issued, within the meaning of that term as used in the statute.
Passing then to the second question: This action is waged as a special proceeding against the county officers to compel them to perform a supposed duty which it is alleged they have neglected and refused to perform. Its real purpose, however, is not thereby disguised. The simple facts are that the county auditor has embezzled a county warrant, which was drawn in favor of, and which ought to have been delivered to, a county creditor, and that creditor is now undertaking to hold the county responsible for the auditor’s unlawful act. Whether the creditor should be permitted to do this is the real ques*52tion involved in this proceeding, and the question which should have been met by the court. But I shall not enter upon an extended discussion of it. It is sufficient to call attention to the familiar rule that a county is not liable for the malfeasance or misfeasance of its officers unless expressly made so hv statute. In this state there is no such statute, and in my opinion the judgment of the trial court should he affirmed.