Page:Federal Reporter, 1st Series, Volume 3.djvu/65

 68 TEDERiL REPORTER. �neceBsary for hîm to examine further into the question as to whether the condition precedent bas been compiied with. Undoubtedly there must be statute authority for the issue of the bonds, and the provisions of the statute must be foUowed. A purchaser of the bonds, even though a honafide purchaser, is referred by the bonds themselves to the terms of the stat- ute. He there finds it enacted that the bonds may be issued by the commissioners if the consent in writing, as proved or acknowledged as provided, of tax payers of the town, to a specified number and amount, is first obtained, and that the afiSdavit of the assessors to that fact shall be proof of that faot for the action of the commissioners. �'"Although the authority of the commissioners to issue the bonds is made dependent on the condition that the required consent of the tax payers shall be first obtained, yet it is equally clear that the commissioners who are to issue the bonds are to ascertain and determine before issuing the bonds that the required consent bas been obtained, by receiving, as proof thereof, the affidavit of the assessors to the fact. The duty of ascertaining -whether the prescribed consent has been obtained is plainly vested by the statute in commissioners» and the form and nature of the evidence they are to act on as evidence of the fact are prescribed. The fact of the issue of the bonds shows that they ascertained and determined that the condition prescribed had been compiied with, and although the bonds do not, on their faces, refer in terms to the neces- sity or the fact of the consent, fio bona fide purchaser of the bonds can be required to go back further than the affidavit to which the statute refers as proof. It was made the duty of the commissioner to determine on special evidence whether the statutory prerequisite to an authorized issue of the bonds had been compiied with, and it was also made their duty to issue the bonds in the event of such compliance. The case in these respects is within the principles laid down in The Town of Coloman v. Eaves, 92 U. S. 484." �In the case of Phelps v. The Toivn of Lewiston the affidavit of the assessors was in ail essential respects in the aame worda of thô affidavits of the assessors in the present case. In that ����