« ForrigeFortsett »
The plaintiff was the holder and owner of coupons formerly attached to and belonging to certain bonds of the above issue. It asked judgment for the aggregate amount of the principal of the coupons, with interest on the amount of each coupon as it became due.
Issue of bonds has been authorized by a vote | September, 1886, and made like default of a majority of the duly qualified electors thereafter up to and including September of the said county of Gunnison, voting on 1st, 1892. the question at a general election duly held in said county on the seventh day of November, A. D. 1882. The bonds of this issue are comprised in three series, designated 'A,' 'B' and 'C' respectively, the bonds of series 'A' being for the sum of one thousand dollars each, those of series 'B' for the sum of five hundred dollars each, and those of series 'C' for the sum of one hundred dollars each. This bond is one of series 'A.' The faith and credit of the county of Gunnison are hereby pledged for the punctual payment of the principal and interest of this bond." To each bond were attached coupons for the semi-annual interest, signed by the county treasurer.
The answer of the county contained a general denial of all the allegations of the complaint, and in addition set out elever affirmaive defenses, which were chiefly based upon the alleged fact that the county in issuing the bonds set forth in the complaint had attempted to incur an indebtedness not authorized by the Constitution of Colorado, or by the statute referred to in the bonds.
The provision of the Constitution of Colorado prescribing the extent to which counties may become indebted, and to which the bonds referred, is as follows:
On the first day of December, 1882, for the bonds of the county with coupons attached as above specified, the defendant board made an exchange with the parties "No county shall contract any debt by loan then holding county warrants, which before in any form, except for the purpose of erectthat time, in accordance with the statutes ing necessary public buildings, making or in such case made and provided, had been repairing public roads and bridges; and issued to them in settlement of claims pre- such indebtedness contracted in any one year sented by them against the county. *In every shall not exceed the rates upon taxable propcase when warrants were presented they erty in such county, following, to wit: Counwere exchanged for the bonds of the county ties in which the assessed valuation of taxaat par for their face and interest. In each ble property shall exceed five millions of dolcase the blanks were filled out with the name lars, one dollar and fifty cents on each thousof the party receiving the bonds or exchanging and dollars thereof. Counties in which such the warrants, and the blank for the place of valuation shall be less than five millions of payment filled in as the banking house of dollars, three dollars on each thousand dol the Chase National Bank in the city of New lars thereof. And the aggregate amount of York. Thereupon the bonds were signed by indebtedness of any county for all purposes, the chairman of the board of county commis- exclusive of debts contracted before the adopsioners, countersigned by the county treas- tion of the Constitution, shall not at any time urer, and attested by the county clerk with exceed twice the amount above herein limthe seal of the county, and the coupons at-ited, unless when, in manner provided by tached were also filled out, stating the place law, the question of incurring debt shall, at of payment to be in the city of New York, at a general election, be submitted to such of the banking house of the Chase National the qualified electors of such county as in Bank, and stating also the number of the the year last preceding such election shall funding bond and the series to which it was have paid a tax upon property assessed to attached. them in such county, and a majority of those voting thereon shall vote in favor of incurring the debt; but the bonds, if any be issued therefor, shall not run less than ten years, and the aggregate amount of debt so contracted shall not at any time exceed twice the rate upon the valuation last herein mentioned; provided that this section shall not apply to counties having a valuation of less than one million of dollars." Laws of Col. 1877, p. 62.
The issue of bonds as above set forth was authorized by a vote of the qualified electors to be exchanged for warrants, and the amount thereof was spread upon the records of the county as provided for by the act of February 21st, 1881, entitled "An Act to Enable the Several Counties of the State to Fund Their Floating Indebtedness." In all other respects the terms and conditions of the act were fully complied with. The bonds were duly registered in the office of the auditor of the state.
*The act of February 21st, 1881, referred to in the bonds in question, contains among other provisions the following:
In every case where bonds were issued and delivered to the payee or to any person for "§1. It shall be the duty of the county him, the parties received them in exchange commissioners of any county having a floatfor warrants, the amount of the bonds being indebtedness exceeding ten thousani doling the same as the amount of the warrants lars, upon the petition of fifty of the electors and interest thereon that had theretofore of said counties [county] who shall have paid been issued by the county. taxes upon property assessed to them in said From the 1st day of December, 1882, and county in the preceding year, to publish for up until the 1st day of March, 1886, the the period of thirty days in a newspaper pubcounty paid the interest on the bonds semi-lished within said county, a notice requestannually in accordance with their terms and ing the holders of the warrants of such counof the coupons attached to them. ty to submit in writing to the board of county commissioners, within thirty days from the date of the first publication of such no
The defendant board made default in the payment of interest due on the first day of
the aforementioned notice, and the amount shall be determined by the county commissioners, and a certificate made of the same and made a part of the records of the county; and any bond issued in excess of said sum shall be null and void; and all bonds issued under the provisions of this act shall be registered in the office of the state auditor, to whom a fee of ten cents shall be paid for recording each bond." Laws of Col. 1881, pp. 85, 86, 87.
tice, a statement of the amount of the warrants of such county which they will exchange at par, and accrued interest, for the bonds of such county, to be issued under the provisions of this act, taking such bonds at par. It shall be the duty of such board of county commissioners at the next general election occurring after the expiration of thirty days from the date of the first publication of the notice aforementioned, upon the petition of fifty of the electors of such county who shall have paid taxes upon property as- 1. The circuit court of appeals held that sessed to them in said county in the preced- the bill of exceptions did not purport to coning year, to submit to the vote of the quali- tain all the evidence adduced at the trial, fied electors of such county who shall have and for that reason it did not consider the paid taxes on property assessed to them question whether error was committed in in said county in the preceding year, the directing the jury to find for the defendant. question whether the board of county We are of opinion that the bill of exceptions commissioners shall issue bonds of such should be taken as containing all the evi- county under the provisions of this act, dence. It appears that, as soon as the jury in exchange at par for the warrants of such was sworn to try the issues in the cause, "the county issued prior to the date of the first complainants to sustain the issues on their publication of the aforesaid notice; or they part offered the following oral and documenmay submit such question at a special elec-tary evidence." Then follow many pages of tion, which they are hereby empowered to testimony on the part of the plaintiffs, when call for that purpose at any time after the this entry appears: "Whereupon complainexpiration of thirty days from the date of ants rested." Immediately after comes this the first publication of the notice aforemen- entry: "Thereupon the defendants to sustioned, on the petition of fifty qualified elect- tain the issues herein joined on their part ors as aforesaid; and they shall publish for produced the following evidence." Then the period of at least thirty days immediate- follow many pages of evidence given on bely preceding such general or special election half of the defendant, and the evidence of a in some newspaper published within such witness recalled by the defendant, concluding county, a notice that such question will be with this entry: "Whereupon the further submitted to the duly qualified electors as proceedings herein were continued until the aforesaid, at such election. The county 20th day of May, 1896, at 10 o'clock A. M." treasurer of such county shall make out and Immediately following is this entry: "Wedcause to be delivered to the judges of elec- nesday, May 20th, at 10 o'clock, the further tion in each election precinct in the county, trial of this cause was continued as follows." prior to the said election, a certified list of the The transcript next shows some discussion taxpayers in such county who shall have paid by counsel as to the exclusion of particular taxes upon property assessed to them in such evidence, after which is this entry: "Therecounty in the preceding year; and no person upon counsel for defendant made a formal shall vote upon the question of the funding motion under the evidence on both sides that of the county indebtedness, unless his name the court instruct the jury to return a vershall appear upon such list, nor unless he dict for the defendant." Although the bill shall have paid all county taxes assessed of exceptions does not state, in words, that it against him, in such county in the preceding contains all the evidence, the above entries year. If a majority of the votes lawfully sufficiently show that it does contain all the cast upon the question of such funding of the evidence. It is therefore proper to inquire floating county indebtedness shall be for the on this record whether the circuit court erred funding of such indebtedness, the board of in giving a peremptory instruction for the county commissioners may issue to any per- defendant. son or corporation holding any county warrant or warrants issued prior to the date of the first publication of the aforementioned notice, coupon bonds of such county in exchange therefor at par. No bonds shall be issued of less denomination than one hundred dollars, and if issued for a greater amount, then for some multiple of that sum, and the rate of interest shall not exceed eight per cent per annum. The interest to be paid semi-annually at the office of the county treasurer, or in the city of New York, at the option of the holders thereof. Such bonds to be payable at the pleasure of the county after ten years from the date of their issuance, but absolutely due and payable twenty years after date of issue. The whole amount of bonds issued under this act shall not exceed the sum of the county indebtedness at the date of the first publication of
173 U. S.
2. We have seen that the bonds to which were attached the coupons in suit recited that they were issued by the board of county commissioners "in exchange at par for valid floating indebtedness of the county outstanding prior to September 2d, 1882, under and by virtue of and in full conformity with the provisions of an act of the general assembly of the state of Colorado, entitled 'An Act to Enable the Several Counties of the State to Fund Their Floating Indebtedness,' approved February 21st, 1881;" that "all the require ments of law have been fully complied with by the proper officers in the issuing of this bond;" that the total amount of the issue did "not exceed the limit prescribed by the Constitution of the state of Colorado;" and that such issue had been authorized by a vote *of a majority of the duly qualified electors of the county voting on the question at a gen
eral election duly held in the county on the 7th day of November, 1882.
Do such recitals estop the county from asserting against a bona fide holder for value that the bonds so issued created an indebtedness in excess of the limit prescribed by the Constitution of Colorado? An answer to this question can be found in former decisions of this court. It is necessary to advert to those decisions, particularly those in which the court considered the effect of recitals importing compliance with constitutional provisions.
In Buchanan v. Litchfield, 102 U. S. 278, 290, 292 [26: 138, 140, 141], which was a suit on interest coupons of municipal bonds, the defense was made that the bonds were issued in violation of that clause of the Constitution of the state providing that "no county, city, township, school district, or other municipal corporation shall be allowed to become indebted, in any manner or for any purpose, to an amount, including existing indebtedness, in the aggregate exceeding five per centum on the value of the taxable property therein, to be ascertained by the last assessment for state and county taxes previous to the incurring of such indebtedness." This court said: "As, therefore, neither the Constitution nor the statute prescribed any rule or test by which persons contracting with municipal corporations should ascertain the extent of their 'existing indebtedness,' it would seem that if the bonds in question had contained recitals which, upon any fair construction, amounted to a representation upon the part of the constituted authorities of the city that the requirements of the Constitution were met,—that is, that the city's indebtedness, increased by the amount of the bonds in question, was within the constitutional limit, then the city, under the decisions of this court, might have been estopped from disputing the truth of such representations as against a bona fide holder of its bonds. The case might then, perhaps, have been brought within the rule announced by his court in Town of Coloma v. Eaves, 92 U. S. 484 [23: 579], in which case we said, and now repeat, that 'where legislative authority has been given to a municipality, or to its officers, to subscribe for the stock of a railroad company, and to issue municipal bonds in payment, but only on some precedent condition, such as a popular vote favor ing the subscription, and where it may be gathered from the legislative enactment that the officers of the municipality were invested with power to decide whether the condition precedent has been complied with, their recital that it has been, made on the bonds issued by them and held by a bona fide purchaser, is conclusive of the fact and binding upon the municipality; for the recital is itself a decision of the fact by the appointed tribunal.' So, in the more recent case of Orleans v. Platt, 99 U. S. 676 [25: 404] it was said that 'where the bonds on their face recite the circumstances which bring them within the power the corporation is estopped to deny the truth of the recital.'" Again: "A recital that the bonds were issued under the authority of the statute and in pursu
ance of the city ordinance did not necessarily import a compliance with the Constitution. Had the bonds made the additional recital that they were issued in accordance with the Constitution, or had the ordinance stated in any form that the proposed indebtedness was within the constitutional limit, or had the statute restricted the exercise of the authori ty therein conferred to those municipal corporations whose indebtedness did not at the time exceed the constitutional limit, there would have been ground for holding that the city could not, as against the plaintiff, dispute the fair inference to be drawn from such recital or statement as to the extent of its existing indebtedness."
In Northern Bank v. Porter Township, 110 U. S. 608, 616, 619 [28: 258, 261, 262], which was an action on municipal bonds, and involved a question respecting the conclusiveness, as between the municipality and a bona fide holder for value, of recitals in the bonds that they had been issued in conformity to law, the court referred to the above rule established in Town of Coloma v. Eaves, and said: "We are of opinion that the rule as thus stated does not support the position which counsel for plaintiff in error take in the present case. The adjudged cases, examined in the light of their special circumstances, show that the facts which a municipal corporation issuing bonds in aid of the construction of a railroad was not permitted, against a bona fide holder, to question in face of a recital in the bonds of their existence, were those connected with or growing out of the discharge of the ordinary duties of such of its officers as were invested with authority to execute them, and which the statute conferring the power made it their duty to ascertain and determine before the bonds were issued; not merely for themselves. as the ground of their own action, but, equally, as authentic and final evidence of their existence, for the information and action of all others dealing with them in reference to it. .. The question of legisla tive authority in a municipal corporation to issue bonds in aid of a railroad company cannot be concluded by mere recitals; but, the power existing, the municipality may be estopped by recitals to prove irregularities in the exercise of that power; or, when the law prescribes conditions upon the exercise of the power granted, and commits to the officers of such municipality the determination of the question whether those conditions have been performed, the corporation will also be estopped by recitals which import such performance."
A leading case on this subject is Dixon County v. Field, 111 U. S. 83, 92-94 [28: 360, 363, 364], which involved the validity of bonds issued in the name of Dixon county, Nebraska, the Constitution of which state prescribed conditions upon which donations could be made to a railroad or other work of internal improvement by cities, towns, precincts, municipalities, or other subdivisions of the state, and imposed limitations upon the amount thereof and upon the mode of creating municipality debts of that kind. The principal question was as to the conclu
siveness of certain recitals in the bonds sued | sue bonds upon a condition are not the apon in that case. This court said: "The es- pointed tribunals to decide the fact which toppel does not arise, except upon matters of constitutes the condition, their recital will fact which the corporate officers had autaor- not be accepted as a substitute for proof. In ity by law to determine and to certify. It other words, where the validity of the bonds is not necessary, it is true, that the recital depends upon an estoppel claimed to arise should enumerate each particular fact essen- upon the recitals of the instrument, the tial to the existence of the obligation. A question being as to the existence of power general statement that the bonds have been to issue them, it is necessary to establish issued in conformity with the law will suf- that the officers executing the bonds had lawfice, so as to embrace every fact which the fu! authority to make the recitals and to officers making the statement are authorized make them conclusive. The very ground of to determine and certify. A determination the estoppel is that the recitals are the offiand statement as to the whole series, where cial statements of those to whom the law remore than one is *involved, is a determina- fers the public for authentic and final infortion and certificate as to each essential par- mation on the subject." ticular. But it still remains that there must In Lake County v. Graham, 130 U. S. 674, be authority vested in the officers, by law, as 680, 683, 684 [32: 1065, 1067, 1068], the to each necessary fact, whether enumerated, question was as to the validity of certain or nonenumerated, to ascertain and determine bonds issued by Lake county, Colorado, units existence, and to guarantee to those dealing der the very statute of that state referred to with them the truth and conclusiveness of in the bonds the coupons of which are here their admissions. In such a case the mean- in suit, namely, the above act of February ing of the law granting power to issue bonds 21st, 1881, authorizing the several counties is that they may be issued, not upon the ex- of the state to fund their floating indebtedistence of certain facts, to be ascertained and ness. It was recited in each of the bonds determined whenever disputed, but upon the sued on in that case that they were issued ascertainment and determination of their ex- under and by virtue of and in full comistence by the officers or body designated by pliance with that act, and that "all the prolaw to issue the bonds upon such a contingen- visions and requirements of said act have cy. This becomes very plain when we suppose been fully complied with by the proper offithe case of such a power granted to issue bonds cers in the issuing of this bond." No one upon the existence of a state of facts to be of the bonds, let it be observed, contained ascertained and determined by some persons any recital that it was issued in conformity or tribunal other than those authorized to to the provisions of the state Constitution. issue the bonds. In that case it would not be This court said: "Nothing is better settled contended that a recital of the facts in the than this rule that the purchaser of bonds, instrument itself, contrary to the finding of such as these, is held to know the constituthose charged by law with that duty, would tional provisions and the statutory restrichave any legal effect. So, if the fact neces- tions bearing on the question of the authority sary to the existence of the authority was to issue them; also the recitals of the bonds by law to be ascertained, not officially by the he buys; while, on the other hand, if he act officers charged with the execution of the in good faith and pay value, he is entitled to power, but by reference to some express and the protection of such recitals of facts as definite record of a public character, then the bonds may contain. In this case the the true meaning of the law would be that Constitution charges each purchaser with the authority to act at all depended upon knowledge of the fact that, as to all counties the actual objective existence of the requisite whose assessed valuation equals one million fact, as shown by the record, and not upon of dollars, there is a *maximum limit beyond  its ascertainment and determination by any- which those counties can incur no further one; and the consequence would necessarily indebtedness under any possible conditions, follow that all persons claiming under the provided that in calculating that limit debts excrcise of such a power might be put to contracted before the adoption of the Constiproof of the fact made a condition of its law-tution are not to be counted. The statute, fulness, notwithstanding any recitals in on the other hand, charges the purchaser that instrument This principle is the es- with knowledge of the fact that the county sence of the rule declared upon this point, commissioners were to issue bonds, at par, by this court, in the well-considered words in exchange for such warrants of the county of Mr. Justice Strong, in Town of Coloma v. as were themselves issued prior to the date Eaves, 92 U. S. 484 [23: 579], where he of the first publication of the notice provided states (p. 491 [23: 582]) that it is 'where it for; that the only limitation on the issue of may be gathered from the legislative enact- bonds in the statute was that the bonds ment that the officers of the municipality should not exceed in amount the sum of the were invested with the power to decide county indebtedness on the day of notice whether the condition precedent has been aforesaid; that while the commissioners complied with,' that 'their recital that it has were empowered to determine the amount of been, made in the bonds issued by them and such indebtedness yet the statute does not reheld by a bona fide purchaser, is conclusive fer that board, for the elements of its com*of the fact, and binding upon the municipal- putation, to the Constitution or to the stanity; for the recital is itself a decision of the dards prescribed by the Constitution, but fact by the appointed tribunal.' The con- leaves it open to them, without departing verse is embraced in the proposition, and is from any direction of the statute, to adopt equally true. If the officers authorized to is-solely the basis of the county warrants. The
recitals of the bonds were merely to the ef- of each series, and the total amount in all, fect that the issue was 'under and by vir- estop the county from pleading the constitutue of and in full compliance with' the stat- tional limitation? In our opinion these two ute; 'that all the provisions and require- features are of vital importance in distinments of said act have been fully complied guishing this case from Lake County with by the proper officers in the issuing of v. Graham and Dixon County v. Field, this bond;' and that the issuing was au- and are sufficient to operate as an thorized by a vote of a majority of the duly toppel against the county. Of course the qualified electors,' etc.; no express reference purchaser of bonds in open market was being made to the Constitution, nor any bound to take notice of the constitutional statement made that the constitutional re- limitation on the county with respect to inquirements had been observed. There is, debtedness which might incur. But when, therefore, no estoppel as to the constitution upon the face of the bonds, there was any al question, because there is no recital in re-express recital that the limitation had not gard to it. Carroll County v. Smith, 111 U. been passed, and the bonds themselves did S. 556" [28: 517]. In disposing of the con- not show that it had, he was bound to look tention that, under the doctrines of certain no further. An examination of any paradjudged cases, the county was estopped to ticular bond would not disclose, as it would deny that the bonds were issued in conform- in the Lake County Case and in Dixon Counity to the Constitution, the court said: "The tu v. Field, that, as a matter of fact, the conquestion here is distinguishable from that in stitutional limitation had been exceeded in the cases relied on by counsel for defendant the issue of the series of bonds. The purin error. In this case the standard of va- chaser might even know, indeed it may be lidity is created by the Constitution. In that admitted that he would be required to know, standard two factors are to be considered; the assessed valuation of the taxable propone, the amount of assessed value, and the erty of the county, and yet he could not asother the ratio between that assessed value certain by reference to one of the bonds and and the debt proposed. These being exac- the assessment roll whether the county had tions of the Constitution itself, it is not exceeded its power, under the Constitution, within the power of a legislature to dispense in the premises. True, if a purchaser had with them, either directly or indirectly, by seen the whole issue of each series of bonds the creation of a ministerial commission and then compared it with the assessment whose finding shall be taken in lieu of the roll, he might have been able to discover facts. In the case of Sherman County v. whether the issue exceeded the amount of inSimons, 109 U. S. 735 [27: 1093], and oth- debtedness limited by the Constitution. But ers like it, the question was one of estoppel that is not the test to apply to a transaction as against an exaction imposed by the legis- of this nature. It is not supposed that any lature; and the holding was that the legis- one person would purchase all of the bonds lature, being the source of exaction, had at one time, as that is not the usual course created a board authorized to determine of business of this kind. The test is, What whether its action had been complied with, does each individual bond disclose? If the and that its finding was conclusive to a bona face of one of the bonds had disclosed that, fide purchaser. So also in Oregon v. Jen- as a matter of fact, the recital in it, with renings, 119 U. S. 74 [30: 323], the condition spect to the constitutional limitation, was violated was not one imposed by the Consti- false, of course the county would not be tution, but one fixed by the subscription con- bound by that recital, and would not be estract of the people." topped from pleading the invalidity of the bonds in this particular. Such was the case in Lake County v. Graham and Dixon County v. Field. But that is not this case. Here, by virtue of the statute under which the bonds were issued, the county commissioners were to determine the amount to be issued, which was not to exceed the total amount of the indebtedness at the date of the first publication of the notice requesting the holders of county warrants to exchange their warrants for bonds, at par. The statute, in terms, gave to the commissioners the determination of a fact, that is, whether the issue of bonds was in accordance with the Constitution of the state and the statute under which they were issued, and required them to spread a certificate of that determination upon the records of the county. The recital in the bond to the effect that such determination has been made, and that the constitutional limitation had not been exceeded in the issue of the bonds, taken in connection with the fact that the bonds themselves did not show such recital to be untrue, under the law, estops the county from saying that it is untrue. Town of Coloma v. Eaves, 92
This brings us in our reference to the authorities to the important case of Chaffee County v. Potter, 142 U. S. 355, 363, 364, 366 [35: 1040, 1043, 1044]. That was an action upon coupons of bonds issued by Chaffee county, Colorado, under the act of February 21st, 1881, under which the bonds here in suit were issued. The bonds and coupons were in the same form and contained the same recitals as the above bonds issued by Gunnison county, and were of like date. The defense in part in the Chaffee county case was that the bonds, and each of them, were issued in violation of the Constitution of the state. After referring to the decision in Lake County v. Graham (the bonds in which did not contain any express recitals as to the constitutional limit of indebtedness), and stating that it was based largely on the ruling in Dixon County v. Field, this court said: "To the views expressed in that case we still adhere; and the only question for us now to consider, therefore, is: Do the additional recitals in these bonds, above set out, and in the absence from their face of anything showing the total number issued