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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 Septenber of the said county of Gunnison, voting on 1st, 1892. the question at a general election duly held The plaintiff was the holder and owner of in said county on the seventh day of No- coupons formerly attached to and belonging vember, A. D. 1882. The bonds of this issue to certain bonds of the above issue. It asked are comprised in three series, designated judgment for the aggregate aniount of the 'A,' 'B' and 'C' respectively, the bonds of se. principal *of the coupons, with interest on the[ 259) ries ‘A’ being for the sum of one thousand amount of each coupon as it became due. dollars each, those of series 'B' for the sum The answer of the county contained a genof five hundred dollars each, and those oferal denial of all the allegations of the comseries 'C' for the sum of one hundred dollars plaint, and in addition set out elever affirmaeach. This bond is one of series 'A. The iive defenses, which were chiefly based upon faith and credit of the county of Gunnison the alleged fact that the county in issuing are hereby pledged for the punctual payment the bonds set forth in the complaint had atof the principal and interest of this bond.” tempted to incur an indebtedness not author

To each bond were attached coupons for ized by the Constitution of Colorado, or by the semi-annual interest, signed by the the statute referred to in the bonds. county treasurer.

The provision of the Constitution of ColoOn the first day of December, 1882, for rado prescribing the extent to which counties the bonds of the county with coupons at may become indebted, and to which the bonds tached as above specified, the defendant referred, is as follows: 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 crect. that 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 [268]sented by them against the county. *In every shall not exceed the rates upon taxable prop

case when warrants were presented they erty in such county, following, to wit: Coun. were 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 nillions of payment filled in as the banking house of dollars, three dollars on each thousand dolthe 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-ired, 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 The issue of bonds as above set forth was those voting thereon shall vote in favor of authorized by a vote of the qualified electors incurring the debt; but the bonds, if any to be exchanged for warrants, and the be issued therefor, shall not run less than amount thereof was spread upon the records ten years, and the aggregate amount of debt of the county as provided for hy the act of so contracted shall not at any time exceed February 21st, 1881, entitled "An Act to En- twice the rate upon the valuation last herein able the Several Counties of the State to mentioned; provided that this section shall Fund Their Floating Indebtedness.” In all not apply to counties having a valuation of other respects the terms and conditions of less than one million of dollars." Laws of the act were fully complied with. The bonds Col. 1877, p. 62. were duly registered in the office of the au- *The act of February 21st, 1881, referred[ 260) ditor of the state.

to in the bonds in question, contains among In every case where bonds were issued and other provisions the following: 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 float. for warrants, the amount of the bonds being indebtedness exceeding ten thousan i dol. ing the same as the amount of the warrants lars, upon the petition of fifty of the electors and interest thereon that haul 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 request annually in accordance with their terms and ing the holders of the warrants of such coun. of the coupons attached to them.

ty tu submit in writing to the board of counThe defendant board made default in the ty commissioners, within thirty days from payment of interest due on the first day of the date of the first publication of such no

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tice, a statement of the amount of the war. | the aforementioned notice, and the amount
rants of such county which they will ex. shall be determined by the county commis-
change at par, and accrued interest, for the sioners, and a certificate made of the same
bonds of such county, to be issued under the and made a part of the records of the coun.
provisions of this act, taking such bonds at ty; and any bond issued in excess of said
par. It shall be the duty of such board of sum shall be null and void; and all bonds
county commissioners at the next general issued under the provisions of this act shall
election occurring after the expiration of be registered in the office of the state auditor,
thirty days from the date of the Srst publi- to whom a fee of ten cents shall be paid for
catior. of the notice aforementioned, upon the recording each bond.” Laws of Col. 1981,
petition of fifty of the electors of such county pp. 85, 86, 87.
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 con.
ing 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 coinmitted 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-[262)
country 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 documen.
may submit such question at a special elec- tary evidence.” Then follow many pages of
tion, which they are hereby einpowered to testimony on the part of the plaintiffs, when
call for that purpose at any tinie after the this entry appears: “Whereupon complain-
expiration of thirty days from the date of ants rested.” Immediately after comes this
the first publication of the notice aforenen-entry: "Thereupon the defendants to sus-
tioned, 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 be
ly 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: "Wed. [261]cause 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 sonie discussion.
taxpayers in such county who shall have paid by counsel as to the exclusion of particular
taxes upon property assessed to tiem in such evidence, after which is this entry: "There-
county 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 ver-
shall appear upon such list, nor unless he dict for the defendant.” Although the bill
shall have paid all county taxes ascessed 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 crunty war. 2. We have seen that the bonds to wbich
rant or warrants issued prior to the date of were attached the coupons in suit recited
the first publication of the aforementioned that they were issued by the board of county
notice, coupon bonds of such county in ex-commissioners "in exchange at par for valid
chauge therefor at par. No bonds shall be floating indebtedness of the county outstand-
issued of less denomination than one hun ing prior to September 2d, 1882, under and
dred dollars, and if issued for a greater by virtue of and in full conformity with the
amount, then for some multiple of that sum, provisions of an act of the general assembly
and the rate of interest shall not exceed of the state of Colorado, entitled 'An Act to
eight per cent per annum. The interest to Enable the Several Counties of the State to
be paid semi-annually at the office of the Fund Their Floating Indebtedness,' approved
county treasurer, or in the city of New York, February 21st, 1881;” that "all the require
at the option of the holders thereof. Such ments of law have been fully complied with
bonds to be payable at the pleasure of the by the proper officers in the issuing of this
county after ten years from the date of their bond;" that the total amount of the issue did
issuance, but absolutely due aud payable "not exceed the limit prescribed by ihe Consti-
twenty years after date of issue. The whole tution of the state of Colorado;" and that
amount of bonds issued under this act shall such issue had been authorized by a vote *of[268]
not exceed the sum of the county indebted-la majority of the duly qualified electors of
Tiess at the date of the first publication of the county voting on the question at a gen-

9

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 [264]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[265] 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

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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 matte: 8 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 offi.

and statement as to the whole series, where cial statements of those to whom the law re (266]more than one is *involved, is a determina. fers the public for authentic and final infor

tion and certificate as to each essential par- mation on the subject.”
ticular. But it still remains that there must In Lakc 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, un-
its 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 means 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 indebted.
istence 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 com-
istence by the officers or body designated by pliar.ce with that act, and that “all the pro-
law 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 offi.
the 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 constitu-
those charged by law with that duty, would tional provisions and the statutory restric-
have 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 ho 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 [268]
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
exercise of such a power might be put to contracted before the adoption of the Consti.
proof of the fact inade 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 re-

neld by a bona fide purchaser, is conclusive fer that board, for the elements of its com[267]* of the fact, and binding upon the municipal- putation, to the Constitution or to the stan

ity; 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

case

es

was

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 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 being made to the Constitution, nor any bound to take notice of *the constitutional[ 270) 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- cxpress recital that the limitation had not gard to it. Curroll County v. Smith, 111 U. been passed, and the bonds themselves did $. 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 ty 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 as. other the ratio between that assessed value certain by reference to one of the londs and

and the debt proposed. These being exac- the assessment roll whether the county had (269]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 he assessment whose finding shall be taken in lieu of the roll, he might have been arde 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 not the usual cuurse 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 disclosc? 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 es. tract of the people."

topped from pleading the invalidity of the This brings us in our reference to the au- bonds in this particular. Such was the case thorities to the important case of Chaffee in Lake County v. Graham and Dixon CounCounty v. Potter, 142 U. S. 355, 363, 364, ty v. Field. But that is not this case. 366 [35: 1040, 1043, 1044). That was an Here, by virtue of the statute under which action upon coupons of bonds issued by the bonds were issued, the county commisChaffee county, Colorado, under the act of sioners were to determine the amount to be February 21st, 1881, under which the bonds issued, which was not to exceed the total here in suit were issued. The bonds and amount of the indebtedness at the date of the coupons were in the same form and contained first publication of the notice requesting the the same recitals as the above bonds issued holders of county warrants to exchange their by Gunnison county, and were of like date. warrants for bonds, at par. The statute, in The defense in part in the Chaffee county case terms, gave to the commissioners the deterwas that the bonds, and each of them, were mination of a fact, that is, whether the is. issued in violation of the Constitution of the sue of bonds was in accordance with the Constate. After referring to the decision in stitution of the state and the statute under Lake County v. Graham (the bonds in which which they *were issued, and required them[271) did not contain any express recitals as to to spread a certificate of that determination the constitutional limit of indebtedness), and upon the records of the county. The recital stating that it was based largely on the rul. in the bond to the effect that such determi. ing in Dixon County v. Field, this court nation has been made, and that the constisaid: “To the views expressed in that case tutional limitation had not been ccceeded in we still adhere; and the only question for us the issue of the bonds, taken in connection now to consider, therefore, is: Do the ad- with the fact that the bonds themselves did ditional recitals in these bonds, above set not show such recital to be untrue, under out, and in the absence from their face of the law, estops the county from saying that anything showing the total number issued 'it is untrue. Town of Coloma v. Eaves, 92

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