86 F. 272 | 8th Cir. | 1898
after stating the facts as above, delivered the opinion of the court.
The first contention of counsel for the plaintiff in error in this case is that the bonds and coupons in controversy are void, although the former recite upon their face that they were “issued for the purpose of funding the floating indebtedness of the city of Huron,” because they were in fact issued, and their proceeds were actually used, to pay city warrants which constituted no debt, but which the city of Huron had emitted in violation of its charter and of the organic act of the territory of Dakota. This proposition is without novelty. It presents the old questions which have often been answered by this and ■other courts: May a municipal corporation certify on the face of its bonds that it has issued them for a lawful purpose, and after the bonds have been bought by an innocent purchaser for value, in reliance .upon this certificate, defeat them by the plea that the certificate was
In National Life Ins. Co. v. Board of Education of Huron, 27 U. S. App. 244, 255, 10 C. C. A. 637, 644, and 62 Fed. 778, 784, the citizens and officers of this city, with the intention of using the proceeds of bonds for the unlawful purpose of persuading the people of South Dakota to select that city as their capital, took the necessary steps to issue them for the lawful purchase of a school site and the erection of a school building, certified that they were issued for that purpose, and then diverted their proceeds to the illegal object, and undertook to defeat the bona fide purchasers of the bonds by the plea of their own wrong. This court answered that plea in these words:
“It is no defense for this corporation, as against bona Me purchasers, that during all this time it intended to use, and has since used, the money it raised from these bonds for the unlawful purpose of conducting a campaign for the state capital. * * * Such a plea cannot bo entertained in a court of justice. Tlie corporation is estopped from denying that these bonds were issued to raise money for a school site and school building.”
In Re West Plains Tp. v. Sage, 32 U. S. App. 725, 733, 16 C. C. A. 553, 557, 69 Fed. 943, 946, the township, with the intention of using tlie proceeds of its bonds for the unlawful purpose of paying town scrip issued to purchase a sugar factory, took the necessary steps to issue, and certified that it had issued, the bonds to refund its indebtedness, then used the proceeds to take up the void scrip, and pleaded its own iniquity as a defense to its bonds. This court said:
“It is no defense for tills township, against the action of an innocent purchaser who has invested his money in these bonds?, that the township board, and the voters of the township who authorized ihe board to issue them, knew that the township had no indebtedness to refund, and that, all these records and declarations were made to evade the law. Against a liona tide purchaser, the township is estopped from denying that these bonds were issued to refund its outstanding indebtedness.”
In Board v. Howard, 49 U. S. App. 642, 27 C. C. A. 531, and 83 Fed. 296, this court again held that a municipal corporation which had recited in its bonds that they were issued “to refund its matured and maturing indebtedness heretofore legally created by said county” could not be heard to say to an innocent purchaser that a part of the indebtedness so refunded was void.
In Jasper Co. v. Ballou, 103 U. S. 745, the supreme court held that where the people of a county, at an election held under a refunding act, voted to issue new bonds to exchange for old ones, such a vote; recognized the original bonds as binding and subsisting obligations, and that the city was thereby estopped from setting up that they were invalid because voted for at an election called by the supervisors instead of the county court, and that where at an election held according to law the people authorized their proper representatives to treat outstanding county obligations as properly authorized by law for the purpose of settling with the holders, and the settlement had been made,, the validity of the obligations could no longer be questioned.
In City of Cadillac v. Woonsocket Sav. Inst., 16 U. S. App. 546, 558, 7 C. C. A. 574, 578, and 58 Fed. 935, 939, the circuit court of appeals for the Seventh circuit held that the recital in the refunding bonds that they were “issued for the purpose of extending the time of payment of bonds formerly issued by said city,” pursuant to an ordinance entitled “An ordinance authorizing new bonds of the city of Cadillac to be issued in place of, and to extend the time of payment of, former bonds of said city falling due,” estopped the city from defending an action by an innocent purchaser of the bonds on the ground that the former bonds were void.
The defendant in error did not issue or procure the issuance of these bonds. This is not a case in which the officers of a municipality have violated the will of their constituents, and abused their power to rob them. It is a case in which all the people of a city, in a burst of wild enthusiasm, promoted or consented to the action of its representatives. The citizens of Huron must have known the real purpose for which these bonds were to be issued when they voted for them. Any one who owned taxable property in that city could have prevented the issue or the payment of the capital campaign warrants, or the issue of these bonds by a simple petition to any court which had jurisdiction. This thing was not done in a corner, or in the dark, or in haste. The electors of Huron voted to issue these bonds on April 2,1889, but they were not issued until August 15, 1889, more than four months after the notice of the election and the vote. The city council was vested with the power and charged with the duty “to admit and allow all just claims against the city, * * * and provide for the payment of the expenses and indebtedness of the corporation,” and it was authorized “to borrow money, and for that purpose to issue the bonds of the city.” It issued these bonds pursuant to the vote of the qualified electors, of that city. It wrote upon the fáee of each of them the words “issued for the purpose of funding the floating indebtedness of the city of Huron,” and sent them forth into the commercial world, to be sold upon this statement, when every officer of that city, every member of its city council, and many, if not all, of its citizens, knew that these bonds were issued to pay void warrants which evidenced no debt. Why did not the city council write the truth into these bonds? Why did it not write “issued for the purpose of paying the void warrants.put forth by the city of Huron to elect itself the capital of the state” ? The reason is obvious. The truth would not have persuaded investors to purchase the bonds. The words “floating indebtedness” have a clear and well-understood meaning in the commercial world. They do not mean void paper semblances of obligations which neither create nor evidence a debt. They mean “that mass of lawful and valid claims against the corporation, for the payment of which there is no money in the corporate treasury specifically designed, nor any taxation or other met»
A municipal corporation is estopped from defending an action by an innocent purchaser to collect its negotiable bonds which recite that they were issued for the purpose of funding the bonds, warrants, or floating debt of the corporation, either on the ground that the warrants or bonds which they were issued to satisfy were void, or that the apparent debt which they were issued to pay was fictitious. See the cases cited above, and Ashley v. Board, 16 U. S. App. 656, 675, 8 C. C. A. 455, 466, and 60 Fed. 55, 66; Meyer v. Brown, 65 Cal. 583, 26 Pac. 281; Moran v. Commissioners, 2 Black. 722; Hackett v. Ottawa, 99 U. S. 86, 96; Ottawa v. Bank, 105 U. S. 342, 343.
The fact that a municipal corporation has diverted the proceeds of its negotiable securities from the lawful purpose for which they appear on their face to have been issued to an unlawful purpose is no defense to an action upon them by an innocent purchaser'who liad no knowledge of or part in the diversion or waste. National Life Ins. Co. v. Board of Education, 27 U. S. App. 244, 255, 30 C. C. A. 637, 644, and 62 Fed. 778, 784; West Plains Tp. v. Rage, 32 U. S. App. 725, 733, 16 C. C. A. 553, 556, and 69 Fed. 943, 946; Commissioners v. Beal, 133 U. S. 227, 240, 5 Sup. Ct. 433; Cairo v. Zane, 149 U. S. 122, 137, 13 Sup. Ct. 803; Maxey v. Williamson Co. Ct., 72 Ill. 207.
Another proposition which is zealously argued in this case is that these bonds are void because they create a debt in excess of the limita
The truth is that where an innocent purchaser buys, of others than the municipality or its agents, negotiable bonds, which recite that they
Another objection to these bonds is that tbe city of Huron was without power to issue them. The position is not entitled to extended consideration, because tbe power granted by tbe charter of tbe city of Huron is plenary. It was general, not special. It was not limited to specified purposes, but was to borrow money and issue bonds for all municipal purposes. It was “to borrow money, and for that purpose to issue bonds of tbe city in such denominations, for such length of time, not to exceed twenty years, and bearing such rate of interest, not to exceed seven per cent, per annum, as tbe city council may deem best.” Charter of Huron, pt. 32. Tbe whole is greater than any of its parts, and includes them all. Tbe power to borrow money and issue bonds for all municipal purposes includes the power to do so to pay or refund tbe indebtedness of tbe municipality. Portland Sav. Bank v. City of Evansville, 25 Fed. 389; Simonton Mun. Bonds, § 126; City of Quincy v. Warfield, 25 Ill. 317; Morris & Whitehead v. Taylor (Or.) 49 Pac. 660; City of Galena v. Corwith, 48 Ill. 423; Village of Hyde Park v. Ingalls, 87 Ill. 13; Rogan v. City of Watertown, 30 Wis. 259, 268. There is nothing in the cases of Police Jury v. Britton, 15 Wall. 566; Merrill v. Monticello, 138 U. S. 673, 684, 11 Sup. Ct. 441; Heins v. Lincoln (Iowa) 71 N. W. 189, 191; New Orleans v. Clark, 95 U. S. 644; City of Waxahachie v. Brown, 67 Tex. 519, 4 S. W. 207; State v. Board of Liquidation, 40 La. Ann. 398, 4 South. 122; Middleport v. Insurance Co., 82 Ill. 565; Bogart v. Lamotte Tp. (Mich.) 44 N. W. 612; Brenham v. Bank, 144 U. S. 173, 182, 12 Sup. Ct. 559; Coffin v. Kearney Co., 12 U. S. App. 562, 6 C. C. A. 288, and 57 Fed. 137; or Shannon v. City of Huron (S. D.) 69 N. W. 598, — in conflict with this conclusion.' ' No court-has held in any of these cases that the unlimited power to borrow money and issue bonds for all municipal purposes ex-
It is insisted, however, that the power granted by the charter to the city council to pay current expense warrants of the city by a levy of a tax implies the exclusion of the power to fund ouch warrants by the issue of negotiable bonds. The contention would be worthy of serious consideration if the express power to issue negotiable bonds was not also granted to the city council by this charter, but the charter grants to the council authority “to appropriate money and provide for the pay* ment of the expenses and indebtedness of the corporation,” and gives it both the power to levy taxes, and the power to borrow money and issue bonds for this purpose. It cannot be that the grant of both these powers excludes either, and the choice of the method by which the indebtedness of the city should be paid is left to the discretion of the council. That discretion has been exercised, and now tiiat bona fide purchasers have bought the bonds in reliance upon its exercise, it is too late for the courts to review it.
Another position of counsel for the plaintiff in error is that the unlimited power to issue bonds granted to the city council in 1883 by the charter of this city was revoked or restricted to the power to issue them for the specified purposes of erecting public school buildings and other buildings for city purposes, procuring Ore apparatus, putting in waterworks, sinking public wells and cisterns, putting in sewers and improving streets, named in the general law of 1887. Comp. Laws Dak. p. 257, §§ 1149, 1150. The position is untenable (1) because the charter of the city of Huron is a special act, and the act of 1887 is a general law, and powers and privileges granted by a special act or charter are not affected by general legislation on the same subject, but the special charter and the general laws must stand together, the one as the law of the particular case, and the other as the general law of the land (Gowen v. Harley, 12 U. S. App. 574, 584, 6 C. C. A. 190, 196, and 56 Fed. 973, 979; Dill. Mun. Corp. [4th Ed.] § 87; State v. Stoll, 17 Wall. 425, 436); and (2) because the act of 1887 carries a proviso which expressly declares that it shall not be construed to limit or restrict the powers theretofore conferred by any special charter upon the council of any city or municipal corporation. The conclusion of the whole matter is that the bonds and coupons, together with the facts that the defendant in error purchased them for value in the ordinary course of busiuess, and that the coupons were not paid, established
A single error in the trial of the case was well assigned. It was that the trial court admitted in evidence proof, and found as a fact, that the city clerk of the city of Huron issued a certificate on August 14,1889, of the amount of the assessed valuation of the property within the city of Huron, and of the amount of that city’s indebtedness. That certificate was immaterial, and should not have been received in evidence or noticed. It does not appear that the defendant in error ever saw or relied upon it, and it could in no way affect the rights of the parties to this litigation. The findings of the court, however, are ample to sustain its judgment after discarding its reference to this certificate, and it conclusively appears from the record and the findings that its admission in evidence could not have prejudiced the plaintiff in error. Error without prejudice is no ground for reversal. Smiley v. Barker, 55 U. S. App. 125, 28 C. C. A. 9, and 88 Fed. 684, 687. The trial below was conducted without prejudicial error; the judgment was founded in reason, and sustained by authority; and it must be affirmed.