(after stating the facts as above). There might be ground for saying that the bonds in question are payable only out of the special assessments upon the property benefited by the improvement, were it not that such contention is set at rest by the decision of the supreme court of Wisconsin in Fowler v. City of Superior, 85 Wis. 411, 54 N. W. 800. That court held with respect to like bonds that the city is bound to pay in any event, and that the conclusion is inevitable that on its face the bond imports an absolute indebtedness and a general liability of the city.
The principal question urged at the bar is whether the recitals of the bond estop the city from asserting that the constitutional provision that before or at the time of incurring the indebtedness the city should provide for the collection of a direct annual tax sufficient to pay the interest of the debt as it falls due, and to pay and discharge the principal within 20 years from the time of contracting the debt, had not been complied with by the city at or before the issuing of these bonds. It is urged for the plaintiff in error that the assessment upon the property benefited is a sufficient “annual tax,” within the meaning of the constitution. It is an interesting question whether the term “assessment” is synonymous with “tax,” as there employed. The conclusion to which we are constrained upon another branch of the law renders unnecessary the consideration of the question. In the discussion, counsel have diligently explored the whole field of decisions with reference to recitals in bonds. The defendant in error insists that the effect of the decisions is that, if the precedent condition which has not been performed is a legislative requirement, a general recital that all conditions precedent have been complied with will estop the municipality, but if the condition is required by the constitution the recital must be specific. It is insisted for the plaintiff in error that where an act. is required, to be done by a municipality, either by the constitution or by the statute, or
“The estoppel does not arise except upon matters of fact which the corporate officers had authority by law to determine and to certify. It is not necessary, it is true, that the recital should enumerate each particular fact essential to the existence of the obligation. A general statement that the bonds have been issued in conformity with the law will suffice, so as to embrace every fact which the officers making the statement are authorized to determine and certify. A determination and statement as to the whole series, where more than one is involved, is a determination and certificate as to each essential particular. But it still remains that there must be authority vested in the officers by law as to each necessary fact, whether enumerated or non-enumerated, to ascertain and determine its existence, and to guaranty to those dealing with them the truth and conclusiveness of their admissions. In such a case the meaning of the law granting power to issue bonds is that they may be issued, not upon the existence of certain facts to be ascertained and determined whenever disputed, but upon the ascertain*117 ment and determination of their existence by the officers or body designated by law to issue the bonds upon such a contingency.”
It is true that in the Rollins Case there was a specific recital that the total amount of the issue did not exceed the limit prescribed by the constitution. But the principle enunciated seems to us to be applicable here, for the condition precedent—the levy of the annual tax— was an act to be done by the city, and it had the power to certify that it had done it.
In the case of Waite v. City of Santa Cruz (decided Feb. 24, 1902) 184 U. S. 302, 22 Sup. Ct. 327, 46 L. Ed. 552, the bonds contained a recital to the effect that they were—
“Issued to refund the bonded indebtedness of the city in pursuance of and in conformity with the constitution of the state of California and the ordinances of the city of Santa Cruz, and in pursuance of and in conformity with the vote of more than two-thirds of all the qualified electors of said city of Santa Cruz voting at a special election duly and legally called and held and conducted in said city, as provided under said act, on Tuesday, the thirteenth day of March, 1894, notice thereof having been duly and legally given and published in the manner as required by law, and after the result of said election had been canvassed, found, and declared in the manner and as required by law. And it is hereby certified and declared that all acts, conditions, and things required by law to be done precedent to and in the issue of said bonds have been properly done, happened, and performed, in legal and due form, as required by law.”
It will be observed that this last recital is nearly totidem verbis with the recital in question. It was objected that by the constitution of California there was no power granted to incur indebtedness exceeding in any year the income and revenue provided for such year, unless upon a two-thirds vote of the qualified electors—
“Nor unless, before or at the time of incurring such indebtedness, provision shall be made for the collection of an annual tax sufficient to pay the interest on such indebtedness as it falls due, and also provision to constitute a sinking fund for the payment of the principal thereof on or before maturity, which shall not exceed forty years from the time of contracting the same. Any indebtedness or liability incurred contrary to this provision shall be void.”
The court, speaking by Mr. Justice Harlan, after a review of the cases, said:
“Applying to the present case the principles heretofore announced by this court, is there any escape from the conclusion that the city of Santa Cruz is estopped to dispute the truth of the recitals in the bonds in suit, which stated that they were issued in pursuance of the act of 1893, as well as in conformity with the constitution of California, authorizing it to incur indebtedness or liability with the assent of two-thirds of the qualified voters at an election held for that purpose, and that all acts, conditions, and things required by law to be done precedent to issuing the bonds had been properly done and performed in due and lawful form as required by law? We think not”
The precise question here involved was before the circuit court of appeals for the Eighth circuit in the case of National Life Ins. Co. v. Board of Education of City of Huron, 10 C. C. A. 637, 62 Fed. 778. It was there resolved that there was no distinction to be made as to the conclusiveness of a recital, whether it was of a fact required by constitutional law or by statute law. In this opinion we concur.
The judgment is reversed, and the cause is remanded, with direction to the court below to grant a new trial.