208 F. 101 | 8th Cir. | 1913
“It is certified that this issue of bonds is for the purpose of purchasing waterworks for fire and domestic purposes, and further, that all the provisions of said ordinance and said act have been complied with, and that all acts, conditions and things requisite to be done, precedent to and in the issuing of said bonds have been done, happened and performed in regular and due form as required by law.”
The acts of the Legislature recited in the bonds granted to the officers of the town plenary power to issue and sell the bonds and coupons for waterworks. They did so and levied taxes to pay and paid the coupons on these bonds for many years. Before they were issued the hoard of trastees of the town passed an ordinance to the effect that the town issue the bonds for the waterworks and that “the mayor and other officers of the town * * * are hereby directed and instructed to issue said bonds in tlie name of the town and to carry out the terms and provisions of this ordinance.” The statutes of Colorado provided that the mayor should preside at all meetings of the board of trustees and that the clerk should make a true and accurate record of all the proceedings, rules, and ordinances made and passed by the hoard of trustees (Mills’ Ann. Statutes of Colorado, § 4511); that all ordinances should be published in a manner specified in the statutes; that they should not take effect or be in force until the expiration of five days after their publication; that as soon as
The argument against the estoppel by the recital and certificate from proving that the ordinance was not’published is twofold. The first runs in this way: In the absence of an ordinance neither the town nor its officers had any power to issue the bonds or to make the recital and certificate therein. The ordinance never was published; therefore it never went into'effect; and the bonds, the recitals, and certificates were issued without authority and are void. In support of this contention counsel cites Post v. Pulaski County, 49 Fed. 628, 1 C. C. A. 405; National Bank of Commerce v. Town of Granada, 54 Fed. 100, 104, 105, 4 C. C. A. 212, 216, 217; Hinkley v. City of Arkansas City, 69 Fed. 768, 773, 16 C. C. A. 395, 400; Town of Aurora v. Hayden, 23 Colo. App. 1, 126 Pac. 1109; Peck v. City of Hempstead, 27 Tex. Civ. App. 80, 65 S. W. 653; and other less pertinent opinions. But the validity of this contention is no longer open to debate in the national courts. It ignores the vital distinction between that total want of power which no act or recital of the municipality or quasi municipality may remedy and the total failure to exercise or the inadequate exercise of a lawful authority. It ignores the essential difference between a total lack of power under the laws under all circumstances and a lack of power which results merely from the absence of the exercise or the inadequate exercise of the power. The former, it is true, cannot be affected by the estoppel of recitals or certificates, but the latter may be.
“As therefore the recitals in the bonds import compliance with the city’s charter, purchasers for value, having no notice of the nonperformance of the conditions precedent, were not bound to go behind the statute conferring the power to subscribe and to ascertain, by an examination of the ordinances and records of the city council, whether those conditions had in fact been performed. With such recitals before them they had the right to assume that the circumstances existed which authorized the city to exercise the authority given by the Legislature.” Evansville v. Dennett, 161 U. S. 443, 16 Sup. Ct. 617, 40 L. Ed. 760.
By the same mark the purchasers of the bonds of this town were not bound to inquire whether the requisite ordinance had been passed or whether or not it had been published. They had the right to assume that it had been duly passed and lawfully published in reliance upon the certificate in the bonds that “all acts, conditions, and things requisite to be done precedent to and in the issuing of said bonds have been done, happened, and performed in regular and due form as required by law.” The petition to the city council praying that it subscribe for the" stock by two-thirds of the resident taxpayers was as essential to the power of the city of Evansville to issue its bonds under its charter as the publication of the ordinance was to the power of this town to issue those in suit, for the charter of Evansville ex--pressly prohibited the subscription to the stock which conditioned the city’s power to issue the bonds in these words:
‘Trovided that uo stock sliall be subscribed or taken by the common council in any such company, unless it be on the petition of two-thirds of the residents of such city who are freeholders of the city, distinctly setting forth the company in which stock is to be taken, and the number and amount of shares to be subscribed.”
After the decision of the Supreme Court in Evansville v. Dennett, and after a careful reconsideration in the light of all the authorities of the question decided in National Bank of Commerce v. Town of Granada, 54 Fed. 100, 4 C. C. A. 212, Hinkley v. City of Arkansas City, 69 Fed. 768, 773, 16 C. C. A. 395, and Post v. Pulaski County, 49 Fed. 628, 1 C. C. A. 405, this court, as early as 1898, overruled its decision in those cases, followed the decision of the Supreme Court, and declared the law upon this subject to be this: The recital in mu
The opinion of the Court of Appeals of the state of Colorado in Town of Aurora v. Hayden, 23 Colo. App. 1, 126 Pac. 1109, to the effect that this court has never overruled its decision in National Bank of Commerce v. Town of Granada, 54 Fed. 100, 4 C. C. A. 212, and that the decision in that case is right and in harmony with the decision of the. Supreme Court in Evansville v. Dennett, has received a careful reading and deliberate consideration, but for tlie reasons stated in this opinion and in the other cases in this court cited, notably in Hughes County v. Livingston, 104 Fed. 306, 43 C. C. A. 541, and because the Supreme Court of the United States, whose decisions it is our pleasure and duty to follow, still adheres to the views this court lias expressed (Quinlan v. Green County, 205 U. S. 410, 419, 27 Sup. Ct. 505, 51 L. Ed. 860; Presidio County v. Noel-Young Bond Co., 212 U. S. 58, 65, 29 Sup. Ct. 237, 53 L. Ed. 402), this court is not persuaded that it is in error upon this subject and it declines to depart from the position it has maintained for more than a decade. The town of Aurora cannot escape from the estoppel of its certificate in the bonds that all the acts required by its enabling statutes to be done before the issue of the bonds had been performed because an ordinance of its board which it might have published was required by those statutes to be published before the bonds were issued and it omitted to publish it.
The second argument against the estoppel is: The mayor, treasurer, and recorder, the officers who issued the bonds, derived their power to issue them and to make the recital and certificate therein from the ordinance. The ordinance did not take effect or have force until it was published, and it never was published. Therefore these
The result is that the contentions of counsel for the town in this case cannot be sustained, and the judgment below must be affirmed. It is so ordered.