Crow v. Township of Oxford/Opinion of the Court

This suit was brought in the circuit court of the United States for the district of Kansas, by Moses R. Crow against the township of Oxford, in the county of Sumner and state of Kansas, to recover the amount of 10 bonds, of $500 each, issued by that township, and 140 coupons, of $25 each, cut from those bonds, being in all $8,500. It was tried before the court without a jury, a special finding of facts was made, and a judgment was rendered for the defendant. The plaintiff has sued out a writ of error.

The defendant, on the fifteenth of April, 1872, made 20 bonds, for $500 each. Coupons cut from some of those bonds were the subject of the suit of McClure v. Township of Oxford, 94 U.S. 429. The bonds and coupons involved in the present suit are all of the forms of the bond and coupon set out in the report of the McClure Case, and each bond has indorsed on it, of the date of April 25, 1872, a certificate duly signed by, and attested by the seal of office of, the auditor of the state of Kansas, the certificate being in the form of that contained in the report of the McClure Case. The bonds were made for the purpose of aiding in the construction of a bridge across the Arkansas river at the town of Oxford, in the township of Oxford; and were issued and delivered in payment for 85 shares, of $100 each, of the stock of the Oxford Bridge Company, a corporation which erected the bridge, for which the township subscribed, and which it has ever since owned and held. The township paid inter st on the bonds up to April 15, 1877. It received dividends on the stock, amounting to about $650 per annum, from October, 1872, till June, 1876. The following proceedings were had and taken by the trustee, treasurer, and clerk of the township, on the following dates, as shown by the public records of the township:

'MARCH 8, 1872.

'Township board met. Present: George T. Walton, trustee, and     John H. Folks, clerk. The fact being known to the clerk that     an act authorizing a majority of the township board to issue      bonds for $10,000, and to subscribe stock in the Oxford Bidge      Company, after giving notice thereof, and the voters of      Oxford township voting thereon, was passed and approved on      the first day of March, 1872; and believing that _____, owing      to the danger of a June freshet, injuring or preventing work,      and increasing the cost of said bridge; and believing the law      only required 20 days' notice,-it was ordered that such      notice be given immediately; which notice was given by written notices posted on      Clark's store, on the post-office at Stanton's store, and at      the school-house in Oxford, believed to be three of the most      public places in the township.

GEORGE T. WALTON, Trustee.

'JOHN H. FOLKS, Clerk.'

'MARCH 24, 1872.

'At a special meeting of the board of Oxford township, held     this day,-George T. Walton, trustee, and John H. Folks,      present,-a copy of the ___ COMMONWEALTH WAS PRESENTED, IN      WHICH THE lAw relating to the bridge bonds was published, in      which it was made necessary to give 30 days' notice thereon. It was ordered that said election be held on the eighth day     of April, 1872, and additional notices were appended to the      original notice posted as above stated, so continuing the      time until the said eighth day of April.

'GEORGE T. WALTON, Trustee.

'JOHN H. FOLKS, Clerk.'

'APRIL 8, 1872.

'At a special election held in pursuance of notices, and of     the act of March 1, 1872, authorizing the trustee, treasurer,      and clerk, or any two of them, of the township of Oxford,      county of Sumner, and state of Kansas, to subscribe stock in      the Oxford Bridge Company to the amount of $10,000, to aid in      the construction of a bridge across the Arkansas river, at      Oxford, in said county and state, and to issue bonds of said      township in payment thereof,-George T. Walton, Edward Slay,      Sr., and James Thompson, judges, and James O. Carpenter and      W. H. Knapp, clerks: Whole number of electors voting, 140;      for the bridge and bonds, 126; against the bridge and bonds,      14. Walton to return poll-books.

'GEORGE T. WALTON, Trustee.

'JOHN H. FOLKS, Clerk.'

'APRIL 10, 1872.

'At a meeting of the trustee and clerk of Oxford township, to     take into consideration the subscribing of stock in the      Oxford Bridge Company,-present George T. Walton, trustee, and John H. Folks, clerk,-it was ordered that the said George T.      Walton, trustee, and John H. Folks clerk, do subscribe to the      capital stock of the Oxford Bridge Company for such amount of      capital stock as the ten thousand dollar bonds may purchase,      not to be less than eighty-three shares of said stock; and      the said George T. Walton and John H. Floks are further      authorized to vote the number of votes said township shall be      entitled to, at any meeting of stockholders of said bridge      company, during their continuance in office, in pursuance of      law. Also ordered, that a copy of said law be sealed in this     book.

GEORGE T. WALTON, Trustee.

'JOHN H. FOLKS, Clerk.'

'APRIL 12, 1872.

'At a meeting of the board of Oxford township, George T.     Walton, trustee, T. E. Clark, treasurer, and John H. Folks,      clerk, were present, and subscribed the said bonds to the      Oxford Bridge & Ferry Company, and participated in the      stockholders' meeting of said company, for and on behalf of      the said township; and George T. Walton, T. E. Clark, and      John H. Folks were elected directors of said Oxford Bridge &      Ferry Company. Said township board authorized William J.     Hobson to procure the printing of suitable bond, and also      authorized said William J. Hobson to contract the sale of      said bridge bonds at not less than 83 cents, and such higher      amount as he may be able to procure; and it was further      agreed by said William J. Hobson, in behalf of C. Baker &      Co., that, if he shall not be able to sell said bonds for 83      cents or over, the said C. Baker & Co. will take said bonds,      in payment for the township stock, at 83 cents on the dollar,      and make a good and sufficient bond to Oxford township,      conditioned that said company will build said bridge, in all      respects, in conformity to contract this day signed by the      said C. Baker & Co. and the directors of said Oxford Bridge &      Ferry Company; said bond to be delivered to the township      board of Oxford township, and the bridge bonds to be      delivered to said William J. Hobson as soon as may be after      said bonds are printed.

GEORGE T. WALTON, Trustee.

'JOHN H. FOLKS, Clerk.' No other proceedings were had or taken by or before the township board in respect to issuing the bonds, except that on April 8, 1872, an election was held in the township on the question, with the result set forth on the face of the bonds. The bridge was erected by the corporation, and was maintained as a toll-bridge until it was destroyed by water on June 9, 1876. The plaintiff owns and holds the bonds and coupons sued on, having purchased them before their maturity, for value, without actual notice of any defense to them, or of any defect or infirmity in the proceedings for issuing them.

The petition of the plaintiff alleged that the bonds were issued in pursuance of an election held in the township in conformity with an act of the legislature of Kansas passed March 2, 1872, c. 68.

A special act of the legislature of Kansas, approved March 1, 1872, c. 158, entitled as set forth on the face of the bonds, authorized the trustee, treasurer, and clerk of Oxford township (or any two of them) to issue the bonds of the township, to the amount of $10,000, for the purpose of aiding in building such bridge. It required that the bonds should be in sums not less than $500, payable in 10 years from the date of issuing, with interest at the rate of 10 per cent. per annum, payable semi-annually, in the city of New York; that interest coupons should be attached, signed by the trustee and attested by the clerk; that the bonds should contain a statement of the purpose for which they were issued, and the result of the vote of the inhabitants of the township on the question of issuing the bonds; that, before any of the bonds should be issued, the question of issuing them should be submitted to the legal voters of the township at an election for that purpose; that the time and place of holding the election should be designated by the trustee, treasurer, and clerk, (or any two of them,) 'by giving at least thirty days' notice, by posting written or printed notices thereof in three of the most public places in said township; and that if, at the election, a majority of the votes should be for the bridge and bonds, the bonds should be issued.' Section 7 of the act was as follows: 'This act shall take effect from and after its publication in the Kansas Weekly Commonwealth.' It was published in the Kansas Weekly Commonwealth, March 21, 1872.

The act passed March 2, 1872, c. 68, referred to in the petition as the act in conformity with which the election was held in pursuance of which the bonds were issued, was an act approved March 2, 1872, section 24 of which provided that it should 'take effect and be in force from and after its publication in the Kansas Weekly Commonwealth.' It was published in the Kansas Weekly Commonwealth, March 7, 1872. It bore the title set forth in the auditor's certificate indorsed on the bonds, and was the act therein referred to. It was a general law, applicable to all counties, cities, and townships. It embraced bridges, railroads, and water-power. It authorized the issuing of bonds to build bridges, and also as donations, a d to pay for stock in aid of railroads and bridges. It graded the amount of bonded debt by taxable property. It allowed bonds of not less than $100, required them to be payable in the city of New York, in not less than 5 nor more than 30 years from their date, with interest not to exceed 10 per cent. per annum, payable semi-annually, on coupons; the bonds, if issued by a township, to be signed by the township trustee and attested by the township clerk. The bonds could not be issued unless ordered by a vote of the qualified electors of the township. To procure such vote, a petition was required, signed by at least one-fifth of the voters of the township, to be presented to the trustee, clerk, and treasurer, asking for a vote; and they were to call an election, to be held within 30 days thereafter, and to give notice of it by publication, for at least three consecutive weeks, in each newspaper published in the township, and, if none were published, by posting up written or printed notices in at least 5 public places in each voting precinct in the township, for at least 20 days preceding the election; the notice to set forth the time and place of holding the election, the bridge proposed to be built, and whether the aid was to be by donation or taking stock.

The question of the validity of the bonds involved in the McClure Case was there passed upon by this court. No question was there presented as to their validity under the act of March 2, 1872, or as to their having been issued under that act, and not under the act of March 1, 1872. It was there held that as the act of March 1, 1872, did not go into effect till it was published and it was not published till March 21, 1872, and required 30 days' notice of the election, and as the bonds were dated April 15, 1872, and stated that the election was held April 8, 1872, and gave the title of the act, and the date of its approval, their invalidity appeared on their face, in connection with the terms of the act, because 30 days had not elapsed between the time the law took effect and the day of the election.

It is contended for the plaintiff in the present case that as the act of March 2, 1872, took effect on March 7, 1872, the day before the commencement of the proceedings for an election, and there was an interval of full 30 days between March 8, 1872, and April 8, 1872, the day of the election, there was legislative authority under the act of March 2, 1872, for all that was done. It is urged that in the McClure Case no reference was made in the record, or in the arguments of counsel, to the latter act, and that the question as to the validity of the bonds under that act is not controlled by the decision in the McClure Case. The whole point of the contention in favor of the validity of the bonds is based on the proposition that the bonds were in fact issued under the authority of, and in compliance with, the provisions of the act of March 2, 1872, instead of the act of March 1, 1872.

The plaintiff, being referred by the bonds to the act of March 1, 1872, as the statute under which they were issued, was bound, as was said in the McClure Case, to take notice of the statute, and of all its requirements. If, finding the bonds invalid under that statute, as he is held by law to have done, he claims the right to refer to the act of March 2, 1872, as the source of authority, because that act was in force from March 7, 1872, he was bound to take notice of the requirements of that act. Looking at them, he was met by the fact that that act required that the proceedings should be initiated by a petition of voters to the trustee, clerk, and treasurer of the township, and be followed by the publication of the notice of election for three consecutive weeks in each newspaper, if any, published in the township, and, if none were published, then by the posting of written or printed notices in at least five public places in each voting precinct in the township, for at least twenty days preceding the el ction. These proceedings were all variant from those to be had under the act of March 1, 1872, which did not require any prior petition of voters, nor any newspaper publication of the notice, but only a posting of notices, and those only in three public places in the township, and not in five public places in each voting precinct in the township. Looking at the public records of the township, he was met by the following facts: The proceedings made no reference to the act of March 2, 1872, or to any petition of voters, but stated that they were taken under the act of March 1, 1872, and that the officers gave thirty days' notice of election by posting written notices in only three public places in the township. Even though the plaintiff purchased the bonds and coupons, as the finding of fact says, 'before their maturity, for value, without actual notice of any defense to them, or of any defect or infirmity in the proceedings for issuing them,' he was, in the absence of such recitals in the bonds as would protect him, bound by the information open to him in the official records of the officers whose names were signed to the bonds The recitals in the bonds could not avail him, because as to the only act recited, that of March 1, 1872, that act was not in force long enough before the election to allow the required notice to be given; and as to the act of March 2, 1872, the records, which showed proceedings not in conformity with it, and the bonds, by the absence of all reference to it, and by their recitals as to the act of March 1, 1872, excluded the possibility that the town officers issued the bonds, or intended to issue them, under the authority of, or in pursuance of the act of March 2, 1872. The statement in the bonds that they were issued 'in pursuance of a vote of the qualified electors of said township, had at an election held therein on the eighth day of April, A. D. 1872, which said election resulted in a majority of 112 in favor of issuing said bonds, in a total vote of 140,' can refer only to an election held under the act of March 1, 1872, before recited in the bond by its title and date, which was an illegal election for want of due notice; and the records showed that the election was held under that act.

The case of Anderson Co. v. Beal, 113 U.S. 227, S.C.. 5 Sup. Ct. Rep. 433, is relied on by the plaintiff, but does not aid him. In that case, although the bonds recited the wrong act, the records of the county officers who issued the bonds did not show any want of compliance with the later act, but showed a substantial compliance with it, and in fact the proceedings were had, and were intended to be had, under it. The reference in the bonds to the earlier act as a source of authority was thus a mere clerical error. In the case at bar the reference in the bonds to the act of March 1, 1872, was not a clerical error, and the proceedings were intended to be had under that act, and the records show a failure to comply with the act of March 2, 1872, and an attempt to comply only with the act of March 1, 1872. In the Anderson Co. Case, legislative authority having been given for the issue of bonds by a statute under which the authorities in fact acted, the recital in the bonds that the bonds were issued in pursuance of the vote of the electors was effective to cover any irregularity as to notice which did not appear of record, but was sought to be proved aliunde. In the present case no such doctrine is applicable.

In Commissioners v. January, 94 U.S. 202, an act was recited in the bonds which had been repealed by a later act. The order for the election was made while the earlier act was in force. The election was held after its repeal, and after the new act went into force, but there was no new order of election. Otherwise all the proceedings after the new act went into force were in conformity with it. It was held that a recital in the bonds that they were issued 'in pursuance of, and in accordance with, the vote of a majority of the qual fied electors of the county,' 'at a regular election held on' a day named, estopped the county from raising the objection of the want of an order under the new act, although the old act, and not the new act, was recited in the bonds as the statute authority. We think that case is distinguished from the present one by the fact that in it all the proceedings after the new law took effect were in conformity with it, while in the case at bar none of the proceedings were in conformity with the act of March 2, 1872.

Another question is presented in the case before us. Section 14 of the act of March 2, 1872, provides that the holder of bonds issued under it shall, within 30 days after their delivery, present them to the auditor of state for registration; and that he shall, on being satisfied that the bonds have been issued according to the provisions of the act, and that the signatures thereto of the officers signing the same are genuine, register them in a book, 'and shall, under his seal of office, certify upon such bonds the fact that they have been regularly and legally issued; that the signatures thereto are genuine; and that such bonds have been registered in his office according to law.' As each of the bonds in suit has indorsed on it a certificate under the hand and seal of office of the auditor of the state of Kansas, dated April 25, 1872, certifying that it 'has been regularly and legally issued; that the signatures thereto are genuine; and that such bond has been duly registered' in his office in accordance with the act of March 2, 1872, giving its title, it is contended, for the defendant, that this certificate concludes all questions as to the regularity and legality of the issuing of the bonds.

In McClure v. Township of Oxford, although the record set forth at length the certificate of the auditor on the bonds, and the brief of the plaintiff in error contended that such certificate was a final and conclusive determination that the bonds were regularly and legally issued, according to the provisions of the act of March 1, 1872, this court, in its opinion, made no reference to that point. It was argued in that case, for the defendant in error, that the act of March 2, 1872, as to registration, did not apply to the bonds as bonds issued under the act of March 1, 1872, and that, if it did, the registration could not, as a recital, aid the want of authority disclosed by the face of the bond.

But now it is contended that the provision for registration in the act of March 2, 1872, settles the question that the bonds were bonds issued under that act, and were 'regularly and legally issued,' according to the provisions of that act. The case of Lewis v. Commissioners, 105 U.S. 739, is cited as sustaining that view. But we do not so regard it. In that case section 14 of the Kansas act of March 2, 1872, was under consideration in regard to the bonds of a county in Kansas, issued in fact, under that act, each of which had indorsed on it a certificate by the state auditor that it had been 'regularly and legally issued,' and that it had been registered in his office according to law. A defense was set up against a bona fide holder of the bonds, that they had been issued in violation of a condition contained in the popular vote, and were fraudulently parted with by the person in whose hands they were put, to be deposited with the state treasurer in escrow, to await a compliance with the condition. This court held, as to the effect of the registration, that the determination by the auditor involved an investigation as to every fact essential to the validity of the bonds; that the bona fide purchaser was not bound, under the circumstances disclosed in that case, to find out whether the auditor had ascertained all the facts; and that the auditor was authorized by the statute to inquire whether the bonds were, as a matter of fact, of the class which, under the act, should have passed through the hands of the state treasurer (it being required by the act that some should do so, and others not,) and also whether the conditions on which they were deliverable had been performed. But there is nothing in the decision which carries the doctrine further than that the auditor is authorized to ascertain whether the facts exist which the statute requires should exist to make a valid issue of bonds. That this is so is shown by the case of Dixon Co. v. Field, 111 U.S. 83; S.C.. 4 Sup. Ct. Rep. 315. In that case there was an innocent holder of bonds of a county in Nebraska, and on each bond was indorsed a certificate of the state auditor that the bond was 'regularly and legally issued.' As against an objection that the bonds were issued in violation of a restriction in the constitution of the state as to the amount of bonds to be issued, it was held by this court, under a registration statute like that in the present case, that no conclusive effect was given by the statute to the registration or to the certificate; that the certificate was no more comprehensive or efficacious than the statement in the bond; that such statement did not extend to or cover matters of law; and that 'a certificate reciting the actual facts, and that thereby the bonds were conformable to the law when, judicially speaking, they are not, will not make them so, nor can it work an estoppel upon the county to claim the protection of the law.'

As the recitals in the bonds here are of no avail to the plaintiff, as before shown, so the certificate of the auditor does not aid him. The bonds on their face excluded the possibility of their having been issued under the act of March 2, 1872; and as the public records showed that the proceedings were not taken under that act, and as the auditor was authorized by section 14 of that act only to register bonds issued under that act, and as these bonds did not fall within the purview of bonds authorized to be registered by him under section 15 of that act, it follows that the auditor had no right to decide, as matter of law, that the bonds were bonds of the kind which he was authorized by the act of March 2, 1872, to register and certify, when, as a matter of law, they were not.

Judgment affirmed.