No. 87.
SUPREME COURT OF WASHINGTON
September 17, 1890, Decided
Appeal from Superior Court, King County.
The facts are fully stated in the opinion.
Court: Judgment affirmed, with costs.
Syllabus: MUNICIPAL CORPORATIONS--WATER WORKS AND
SEWERS--BONDS--DATE OF ISSUE--ELECTIONS--ORDINANCES.
Although the charter of the city of Seattle (Laws Wash.
1886, p. 224) granting said city power to erect and maintain
water-works, provided that no such works should be erected
"until a majority of the voters of the city, at a general
election of the city, shall vote upon the same," which
clause is unrepealed by any later law, yet by the acts of
February 26, and March 26, 1890 (Laws 1889-90, pp. 225,
520), authorizing cities to extend their indebtedness and
construct, purchase and maintain water-works with the
proceeds of long-time bonds, a new power is conferred upon
said city, and the question of issuing bonds for such
improvements may be submitted at a special election held for
that purpose.
The act of March 26, 1890, entitled "An act authorizing
cities and towns to construct internal improvements, and to
issue bonds therefor, and declaring an emergency," under
which the legislature empowers cities to construct and
maintain water, light and sewerage systems, is not invalid
on the ground that the subject of the act is not expressed
in the title, as required by art. 2, § 19 of the
constitution.
The act of March 26, 1890, authorizing the city council or
board of trustees of any city or town to provide by
ordinance for submitting to vote of the people plans for
"either or both such water-works, or system of sewerage, or
plant or works for lighting purposes," is a general law
applicable to all incorporated cities and towns, and clearly
authorizes ordinances on this subject to be either single,
double or triple; and accordingly suspends the restrictive
clause in § 78 of the charter of the city of Seattle, that
"no ordinance shall contain more than one subject, which
shall be clearly expressed in the title."
The record of an ordinance was made by the city clerk from a
correctly printed copy, the original having been lost.
Subsequently the city attorney undertook to prepare a
substitute for the original, but by mistake he worded it
differently in some particulars. This substituted copy was
signed by the mayor and clerk, and placed on file in the
latter's office. Afterwards an assistant clerk, without
authority from any one, erased and interlined the recorded
ordinance to make it conform to the substituted copy. Held,
That showing these facts was not the impeachment of a
record, and that the ordinance, as originally recorded by
the clerk, before the erasures and interlineations were
made, was the true ordinance.
Where an ordinance provides that "if three-fifths of the
voters of said city of Seattle shall at said election vote
in favor of authorizing," etc., it does not require, in
order to carry the proposition, that three-fifths of all
those who may be entitled to a vote, should vote in favor
thereof, but only a three-fifths majority of those actually
voting.
Where the statute provided that, if the voters of a city
duly assented thereto, the city might issue bonds to cover
the cost of water, sewer and light systems, the bonds to run
for not more than twenty years, with interest at not less
than six per cent. per annum, principal and interest to be
payable at such place as may be designated, and an ordinance
of the city of Seattle submitting such a proposition to the
voters thereof, provided that the bonds should be sold at
par, bear five per cent. interest, and be payable at the
office of the city treasurer, and the proposition was
assented to by the voters of the said city in that form, the
city council of said city may subsequently, in the absence
of fraud, without again submitting the proposition to the
people, provide by another ordinance that the bonds shall be
sold at a discount, bear a greater rate of interest,
provided the same does not exceed six per cent., and be made
payable at a different place from that fixed in the original
ordinance.
Where the statute requires that such bonds "shall bear the
date of their issue," it is not a violation thereof for the
bonds to be prepared and dated July 1st, 1890, and not
negotiated until several months thereafter.
Where a statute required bonds to be signed by the mayor of
the city, the person holding that office when the occasion
arrived for executing them would be the proper party to
affix the official signature of the mayor, though the bonds
bore date prior to his entry into office.
Counsel: Preston, Albertson & Donworth, for appellants.
Thomas R. Shepard, for appellees.
Judge(s) STILES, J. HOYT, SCOTT and DUNBAR, JJ., concur.
ANDERS, C. J., not sitting.
Opinion By: STILES
The opinion of the court was delivered by
STILES, J.--In this appeal the matter of the issuance of
the same bonds which were the subject-matter of the recent
case of Metcalf v. Seattle, ante, p. 297, was again in
controversy, the appellants seeking to enjoin the sale of
the bonds to purchasers approved by the city council of the
city of Seattle, upon the several grounds which will be
stated and discussed in order.
1. Appellants maintain that, inasmuch as § 12 of the act
incorporating the city of Seattle (Acts of 1886, p. 244)
grants power to that city to erect and maintain water-works,
provided that no such works should be erected "until a
majority of the voters of the city at a general election of
the city shall vote upon the same," the special election of
June 4, 1890, was an invalid election, their contention
being that, since the act of February 26, 1890, contains no
authority to erect water-works, and the act of March 26,
1890, has no clause repealing conflicting laws, this
requirement of submission at a general election still stands
as the law of that corporation. But even were we to hold
that there had not been a repeal of the quoted part of § 12
of the act of 1886, by reason of the rule that special acts
of this class are not to be taken as repealed by general
acts unless the intent to repeal is plainly apparent, it is
equally apparent that the act of 1886 did not provide for
the erection of water-works and the construction of sewers
with the proceeds of long-time bonds, which the acts of
February 26, and March 26, 1890, do. Thus a new and distinct
power is conferred by a method, the main and most beneficial
feature of which is the relief of the present generation of
taxpayers from excessive assessments, to pay cash for such
public improvements; and whenever that feature is sought to
be availed of, as it was in this instance, all the
safeguards accompanying it must be adopted. One of these is
the special election, and there was, therefore, no error in
the proceedings on that score.
2. It is objected that the act of March 26th is invalid
because the subject is not expressed in the title.
Constitution, art. 2, § 19. The title is: "An act
authorizing cities and towns to construct internal
improvements, and to issue bonds therefor, and declaring an
emergency," and the criticism is, that although there is a
subject expressed, it is not the subject treated of in the
body of the act, since water-works, sewers and artificial
light plants are not "internal improvements" within the
ordinary meaning of the phrase. Perhaps this is an original
use of the term "internal improvements." It has, certainly,
not been commonly applied to the improvements supposed to be
made by cities for the benefit of their inhabitants, but has
been employed more grandiloquently in reference to the
improvement of highways and channels of travel and commerce,
in the statutes of congress and the state legislatures. And
yet, when under it our legislature particularizes
water-works, sewers and light plants, which certainly are,
in fact, internal improvements, relatively to the cities of
the state, we do not deem the verbal criticism of sufficient
weight to set aside the act. The cases cited, Union Pacific
Railroad v. Colfax Co., 4 Neb. 450, and Dawson Co. v.
McNamar, 10 Neb. 276, 4 N.W. 991, are not in point, since
these were instances of the issuance of bonds for purposes
not particularized in the statute, which was a general one
authorizing counties to issue bonds in aid of railroad and
other internal improvements.
3. The act of 1886, § 78, contains the usual restriction
that "no ordinance shall contain more than one subject which
shall be clearly expressed in its title;" wherefore it is
asserted that ordinance No. 1343 was void because both in
its title and in the subject treated of it was double, in
that it provided for both water-works and sewers. And, in so
far as the double subject is concerned, our judgment is with
the appellants; for both in the constitution and the statute
water-works and sewers are distinct things; and it would
probably be better that in all cases, propositions for
either of these improvements, as well as for lighting
systems, should be submitted either at separate elections,
or separately at the same election, so that the voters might
be free to adopt one system without being forced thereby to
adopt the other, or to reject one without losing the other.
But the restrictive clause of § 78 of the act of 1886 has no
effect upon that portion of the act of March 26, 1890, which
provides for submitting propositions to the voters of
cities, since the latter act, by its own terms, contained in
§ 2, suspends the restriction. Section 2 says: "Whenever the
city council, or board of trustees, of any such city or town
shall deem it advisable that the city or town of which they
are such officers shall exercise the authority hereby
conferred upon them in relation to either or both such
water-works, or system of sewerage, or plant or works for
lighting purposes, the corporation shall provide therefor by
ordinance," etc. This is a general law applicable to all
incorporated cities and towns, and is to be executed in the
same manner wherever it is made use of. It has become a part
of the charter of each city and town; and on this subject
clearly authorizes ordinances to be either single, double or
triple.
4. The next proposition in the case embraces questions of
mixed law and fact. The complaint alleged that the ordinance
had never been published as required by § 79 of the charter
(act of 1886); but it was admitted at the hearing that a
publication had been made, excepting that, whereas § 6 of
the ordinance adopted by the council and approved by the
mayor, as appeared from the clerk's official record, had
provided that the proposed works should be entered upon, "if
three-fifths of the qualified voters of said city of Seattle
voting at said election vote in favor of authorizing" the
same; on the other hand, the attempted publication had
represented § 6 as conditioned that "if three-fifths of the
voters of said city of Seattle shall at said election vote
in favor of authorizing" the same.
The answer alleged, and the court below, over appellant's
objection, permitted the appellee to show that the ordinance
was passed and approved in the words of § 6, as admitted to
have been published, but that, through haste in procuring
publication, the city clerk had permitted the printer to
take the original sheets of the ordinance to be used as copy
for the newspaper type-setters, before the ordinance had
been copied into the record book; that the printer had
separated the sheets, perhaps cut them up, and ultimately
lost them; that the clerk had preserved one of the newspaper
copies, as officially published, and from that made his copy
in the ordinance record book; that some time after this,
through the frequency of calls for the original ordinance by
third persons, the attention of the mayor and city attorney
was drawn to the fact that it had been lost, and the city
attorney undertook to make a substitute original copy, which
was to be signed by the mayor and clerk, dated and filed as
of the date of the original, and to be to all appearances,
the original itself; that the city attorney mistook a
prepared draft for an ordinance which he had in his office,
for a verbatim copy of the one adopted, and prepared his
substitute copy from that, instead of from a printed copy;
that this substitute, containing the variations noted, was
signed by the mayor and clerk, and dated and filed as
proposed, and was for some time treated as the true
original; and that an assistant in the office of the clerk,
after the substitute copy had been deposited in the files of
the clerk's office, noticed the discrepancy between it and
the recorded ordinance, and without authority or instruction
from any one, interlined in the record the word "qualified,"
and erased the word "shall" and interlined the word "voting"
in its place. The appellant's objection to proof of these
facts was on the ground that the record of the ordinance
could not be collaterally impeached. Dill. Mun. Corp., §
297-299. But we hold that this was not a case of the
impeachment of a record, but merely to determine what was
the record. The substitute copy made by the city attorney
was certainly not a record; and no more were the
interlineations and the erasure made by the unauthorized
assistant clerk a part of a record. The testimony went to
show these facts, and to establish what was the true record,
viz.: the ordinance as copied into the record book by the
clerk, from the printed copy, before the erasure and
interlineations were made; and this, in our judgment, was
entirely competent. This leaves the ordinance reading: "If
three-fifths of the voters of said city of Seattle shall at
said election vote in favor of authorizing," etc., which, it
will be observed, is not the language of it as presented in
Metcalfe v. Seattle. Appellants, therefore, confidently
claim that, since it is admitted that there were over four
thousand persons in Seattle entitled to vote on the 4th day
of June, 1890, and less than eight hundred did, in fact,
vote, the authority to bond the city for water works and
sewers was not granted. But, under our construction of the
word "voter" in Metcalfe v. Seattle, and the authorities
there cited, we see no difference whatever in meaning,
between "if three-fifths of the voters shall vote," and "if
three-fifths of the qualified voters voting vote." The word
"qualified" adds nothing. Every voter is a "qualified"
voter. And if a voter is one who votes, then, at an
election, he is a "voter voting." It was competent for the
city of Seattle to be more particular than the statute and
provide that, before the proposition for public water works
and sewers pass, it should be authorized by the affirmative
vote of a majority of all the persons entitled to vote; but
unless it has done so in clear and indisputable language it
should be taken to have accepted the act of March 26th, as
the legislature enacted it; and, in view of the eagerness
with which the legislative body of the city have pursued the
matter, we deem it not likely that it would seek to make the
way to the issuance of these bonds more difficult than was
necessary under the law.
5. The ordinance, in addition to the systems of water
works and sewers set forth, declared the probable cost, and
proposed the issue of bonds for $ 955,000. This was required
by § 2 of the act of March 26th. But the ordinance went much
further, and enacted many other things not necessary to it
as a complete ordinance for submission. The place of payment
was fixed at the office of the city treasurer; the rate of
interest was made five per cent.; and it was ordered that
the bonds be disposed of at not less than par. Now, it is
contended by appellants that every feature of the ordinance,
by its submission to the voters, became a condition
precedent to the lawful issue of the bonds, under the
authority conferred by the result of the election. Were this
point held good, it will be seen that the whole scheme would
be very effectually blocked, for the present at least. It
appears that in accordance with the authority contained in
the ordinance, the mayor and the finance committee of the
council, as soon as the election of June 4th had ratified
the action of the council, prepared to have the bonds
lithographed, and advertised them for sale as bonds of date
July 1, 1890, running twenty years, at five per cent.,
interest on the first coupon from July 1st to delivery to be
deducted. The time set for receiving bids was July 8, 1890;
but neither at that time nor at any subsequent date could
any person be found to take the bonds on the terms offered,
the rate of interest being lower than the market commanded
for that class of securities. On the 19th of August,
however, one N. W. Halsey, who was in the employ of the firm
of N. W. Harris & Co., offered, on behalf of Harris & Co.,
to purchase the whole issue of bonds, providing that terms
could be made so that, in effect, the rate of interest could
be raised to about five and one-third per cent. The
experience of the mayor and finance committee had convinced
them and the council that a five per cent. bond could not be
negotiated at par, and they were willing to accept the offer
of Harris & Co. But both parties to the transaction were
fearful that the provisions of the ordinance were binding
upon all action taken in furtherance of the issue of these
bonds, and they therefore resorted to a series of clumsy
fictions to avoid the effect of the requirements as to the
rate of interest and selling at par, the excuse on the part
of the city officials being the pressing need of the people
for a larger supply of water and better sewerage, the delay
and expense of another election, and the fact that the
credit of the city had already been pledged to a large
amount for water machinery on the faith that the proceeds of
these bonds would be immediately available. Harris & Co.
offered to take the entire issue of $ 955,000, paying $
350,000 cash; $ 50,000 October 1st, $ 50,000 November 1st,
and $ 505,000 after January 1, 1891, in installments of not
less than $ 10,000 nor more than $ 50,000, as the funds
should be actually needed by the city, in paying for water
and sewerage work, on estimates to be furnished by the
engineers in charge, with fifteen days' notice of a call for
each installment; all interest coupons from the date of the
bonds, July 1, 1890, to remain attached to the bonds
uncanceled. They further required that a commission of two
per cent. of $ 955,000 be forthwith paid to Halsey, in a
warrant on the general fund of the city, and that a warrant
of the city of Seattle for $ 19,100 be accepted as part of
the first payment of $ 350,000 to be made by them. The place
of payment was to be changed to some national bank in the
city of New York.
We agree with the appellants that all of this maneuvering
was simply a scheme to give the bonds to Harris & Co. at a
discount, and the appellee substantially concedes such to be
the fact. In the first place the commission to Halsey, who
was the authorized agent of Harris & Co., was a rebate to
the purchasers of $ 19,100 from the face of the first $
350,000; and secondly, the retention of all coupons was an
advance payment of interest to the extent of some $ 43,000,
for a period during which Harris & Co. would still retain
the purchase money and have the full use of it; so that the
effect would be that the city of Seattle, in twenty years,
would pay about $ 62,000 more for the use of the money than
it would had the bonds been sold in strict accord with the
terms of the ordinance. This, doubtless, was the moving
cause of the appellants' suit, and is the most strongly
urged of all their grounds of complaint. The council, by
ordinance, to the formality of which no objection is raised,
accepted the proposition of Harris & Co., caused a warrant
for $ 19,100 to be drawn on the general fund in favor of
Halsey (which was immediately endorsed to Harris & Co,, and
by them, through Halsey, turned in on their first payment),
and were proceeding to the execution of the bonds when this
action delayed all further steps. Unless we hold that this
change of plan by the council was not expressly or
implicitly forbidden by the law governing their action, the
injunction asked should be granted. We observe, at the
outset of this part of the case, that no fraud whatever is
alleged against the council, or any of its members; nor was
there any attempt to avoid the effect of any part of the
statute, unless it be what is claimed to be its unwritten
part, binding the council to every provision of ordinance
No. 1343.
Municipal corporations are almost invariably invested with
the power to borrow money. Very eminent jurists have
maintained that this power was inherent with the idea of a
corporation, and needed not to be granted specially. But the
rule is settled otherwise, and now, aside from
constitutional and statutory limitations, courts demand some
charter provisions on this subject before they will
recognize indebtedness of this kind. The power to become
indebted being made apparent, however, courts are liberal in
their construction of statutes and constitutional provisions
couched in general language, so long as the purposes for
which indebtedness is created are clearly seen to be
municipal in their character. The standard for a county is,
however, measured by the objects of its incorporation; that
of a school district by an entirely different set of
objects; and that of a city or town by the peculiar and
infinitely varied needs of their inhabitants, circumscribed
by reasonable bounds. Usually the wisdom of incurring debt
by these corporations is delegated to the legislative
authority of each, though there have been exceptions, in
which corporations have been required by the legislature to
issue bonds for purposes foreign to their organization, and
there is a numerous class of instances in which it is common
to submit propositions to the electors of the corporation,
and thus delegate to the body of the people the power to say
whether a debt shall be incurred or not. This latter class,
however, is generally limited to cases where the object to
be promoted is not within the purview of legitimate
corporate purposes, though it is of a quasi public nature.
Our constitution, in the most positive terms, has cut off
from every municipal corporation every subject of expense
and indebtedness excepting those which are within the
legitimate intendment of its organization; and so far as
cities are concerned, it has gone to the extreme of
restriction, by fixing the one and one-half per cent. limit,
beyond which the legislative bodies of those corporations
cannot incur valid indebtedness without the assent of their
constituents. The act of February 26, 1890, undertakes to
confer upon existing cities the power to become indebted up
to the limit prescribed by § 6, art. 8, of the constitution;
and, upon examination, we find that until the five per cent.
limit is reached the council have delegated to them the
whole matter of how, and for how long, and at what rate of
interest loans shall be negotiated, and all of the details;
and this is with reason, since these are business
corporations, acting, as a general rule, only through their
legislative head, and it is not practicable to submit
details to the body of voting inhabitants. True, when one
and one-half per cent. has been reached, the people must be
consulted as to further borrowing of money or contracting
indebtedness, but the method and other details are entirely
left to the council, unless water-works, sewers or light
plants are contemplated, when the act of March 26th makes
some modifications.
Now the power is thus delegated to the municipal
legislature, with the assent given, to proceed and "borrow
money" or "contract indebtedness," it being the sole judge
of the proper method, whether by bonds, or warrants, or open
account, confidence being reposed in the wisdom and honor of
its members that they will act for the best interest of the
community. No citizen or taxpayer can question, in the
courts, the uncorrupted action of his city council in these
particulars, as no stockholder can dispute the doings of the
board of directors of a private corporation of which he
holds stock, in the absence of fraud. Nor does the law
permit the council of a city to delegate to the popular vote
the determination of any matter before it, unless the right
to so delegate it has been expressly conferred or enjoined
by statute. Ministerial agents, with certain limited
discretion, it may appoint, but that is all. Now turning to
the act of March 26th, we find that the legislature saw fit
to enlarge somewhat on the requirement that the assent of
voters should be secured to the proposition to borrow money
or become indebted for water-works, sewers or light plants,
and prescribed that before the vote should be taken the plan
of operation should be adopted and the probable cost
estimated and certified to by the council, in the form of an
ordinance. Here is a mandatory delegation to the popular
voice by the legislature itself. It is not in the discretion
of the council to submit the question to vote or not; the
council is merely the medium by which the wish of the people
in the matter is recorded. Therefore, we conclude that the
council could lawfully submit to vote only those matters
directed to be submitted by its superior authority, the
legislature.
Appellants urge that to be consistent with our decision in
Metcalfe v. Seattle we must hold with them, since in that
case we said, in reference to the act of March 26th: "The
intention of the act was, that the people who would have to
furnish the means should be fully apprised of the whole
scheme, and that there should be a definite, well considered
and practicable scheme presented for their rejection or
adoption," they maintaining that the "scheme" submitted was
to borrow $ 955,000, net, running at five per cent.
interest. But in using the word "scheme" in the former
opinion we had no reference to any matter connected with the
bonds themselves. Nothing of the kind was involved in the
case, and our use of the term was as a synonym for the
phrase, "system or plan" employed in § 2 of the act, and
related wholly to the physical features of the proposition,
not to the financial means of accomplishing them. Touching
that point, the people have a guaranty in the further
provisions of the statute that bonds must be payable in not
more than twenty years, and bear interest not exceeding six
per cent.
It follows that we hold the rate per cent., the sale at
par, and the place of payment not to have been necessary to
the ordinance; but the question remains whether having been
placed there, they must remain as the unchangeable rule of
the council's action. We are cited to a number of cases
which are presented as sustaining the affirmative. State of
Illinois v. Delafield, 8 Paige Ch. 527, held that a sale of
bonds, nominally at par, but allowing accrued interest to
the purchaser, was not really a sale at par, where the
statute expressly required the par value to be realized. We
have held that the plan here proposed would not be a sale at
par. Cowdrey v. Caneadea, 21 Blatchf. 351, 16 F. 532, fairly
represents the other cases cited, all of which, without
exception, are cases growing out of the issue of municipal
bonds in aid of railroad or other quasi public corporations;
and the judge in that case clearly states the ground of
difference in the treatment of bonds of that class, and
those issued for purely municipal purposes. He says: "The
authority of a majority of the tax-payers of a town to
incumber the property of a minority against their will, in
aid of a railroad or other corporation, receives no
countenance from the principles of the common law. Every
step, therefore, required by the statute must be in strict
conformity therewith." In Lawson v. Schnellen, 33 Wis. 288,
the statute required the written proposition of the railroad
company to be submitted to a vote of the people, and the
court held that if the proposition was assented to it became
a contract which could not be altered by county
commissioners. Douglas Co. v. Walbridge, 38 Wis. 179, was of
the same character. Jackson Co. v. Brush, 77 Ill. 59, held
that railroad aid bonds should not be delivered until the
conditions precedent, which had been made a part of the
contract between the county and the company, had been fully
complied with.
The remarks of High on Injunctions, vol. 2, § 1289, and of
Dillon on Municipal Corporations, § 91, and Dillon on
Municipal Bonds, § 6, et seq., are all directed to this
class of corporation aid bonds, the latter volume being
entirely devoted to them; and the gist of these cases and
authorities so far as they have any bearing here, is, that
if a railroad or other company is aided by such bonds, the
propositions submitted to the vote of the people, whether
originating in the statute or with the municipal agents, or
from the corporation, became a part of the contract between
the two corporations, and follow the bonds as the law of
their issuance. But here we have no element of contract
whatever, and the authority of a majority of the voters to
encumber the property of the minority, even against their
will, in furtherance of municipal objects and improvements,
receives the broadest countenance from the principles of the
common law. There is no reason, which commends itself to our
judgment, for holding that those parts of ordinance 1343
referring to the details of the negotiation should be
inviolate, and not subject to amendment in the manner
adopted when it was found that no one would take five per
cent. bonds at par. We still have to consider the alleged
post-dating of the bonds; but, aside from that, it is
conceded that the motive of those engaged in the transaction
was fair, and the actual result to the city of Seattle was a
rate of interest higher by about one-third of one per cent.
per annum, and two-thirds of one per cent. less than the
rate recognized by the statute. It would certainly have been
far better had the council, seeing their dilemma, met the
fact that five per cent. bonds could not be marketed at par
with a new ordinance authorizing their negotiation at the
best rate obtainable under six per cent. They would have
been subjected to far less criticism, and the record here
would have been much less involved.
6. The statute requires that such bonds shall "bear the
date of their issue," and it has become a question in this
case what the date of issue is, since the bonds were
prepared with the date July 1, 1890, and the contract with
Harris & Co. requires that the coupons remain intact from
that date, although none of the bonds have been delivered,
and some of them will not be delivered for many months. In
financial parlance the term "issue" seems to have two phases
of meaning. "Date of issue," when applied to notes, bonds,
etc., of a series, usually means the arbitrary date fixed as
the beginning of the term for which they run, without
reference to the precise time when convenience or the state
of the market may permit of their sale or delivery, and we
see no reason why the act of March 26, 1890, should not have
that interpretation. When the bonds are delivered to the
purchaser, they will be "issued" to him, which is the other
meaning of the term. Usually the question of interest from
the date of issue to the time of sale of bonds is adjusted
by payment of the face and interest by the purchaser, or the
removal of coupons. But here the contract stipulates that
the coupons shall remain uncanceled; it was a fair contract,
and there can be no wrong done if the term of some of the
bonds in the hands of purchasers is something less than
twenty years. No officer has sought to evade any statute
affecting these bonds which came into operation since the
date of issue, as was the case in Anthony v. County of
Jasper, 101 U.S. 693, 25 L. Ed. 1005; nor did a person, not
an officer of the corporation at the time of signing, affix
his name to the bonds, as an officer, to avoid the refusal
of the acting officer to sign, as occurred in Coler v.
Cleburne, 131 U.S. 162, 33 L. Ed. 146, 9 S. Ct. 720. Under
the circumstances, the date July 1st was not an unreasonable
date, and complied with the law in that respect.
7. The act of March 26th, among other formalities,
required the bonds to be signed by the mayor of the city;
but pending the disposal of bonds a municipal election was
held July 14th, at which Harry White was elected mayor. As
he was not the mayor July 1st, appellants maintain that he
cannot consistently sign them under that date of issue. But
if the bonds are valid, although not executed and delivered
at the precise date of issue, it follows that the officer in
office when the occasion arrived for executing them would be
the proper party to affix the official signature of the
mayor. In Weyauwega v. Ayling, 99 U.S. 112, 25 L. Ed. 470,
the bonds of a town bore date June 1st, and were signed by
the chairman of the board of supervisors, and by the town
clerk; but the person signing as clerk did not sign until
July 13th, at which date he had ceased to be town clerk.
Still the supreme court held the bonds good, presuming that
the bonds were delivered with the assent of the then clerk;
certainly a far more extreme case than that under
consideration. Coler v. Cleburne, 131 U.S. 162, 33 L. Ed.
146, 9 S. Ct. 720, seems to be, in some of its features at
least, on all fours with this case. The city of Cleburne,
Texas, in September, 1883, contracted to pay city bonds for
the erection of water-works, the bonds to bear date January
1, 1884. The works were not ready for acceptance until July
3, 1884, when the person who had been the mayor on January
1st, had gone out of office, and his successor was acting.
The statute of Texas required such bonds to be signed by the
mayor; but the city council argued that the mayor at the
date of the bonds should sign them, even though he had gone
out of office, and they passed a resolution requesting him
to sign them, with which he complied. An innocent holder had
brought suit upon unpaid coupons of these bonds; but the
supreme court held, without dissent, that no person but the
mayor of the city could lawfully sign the bonds, although
thus formally requested to do so by the council, and that
they were therefore void. The court, however, nowhere hints
that, because the term of the mayor in office January 1st,
had expired in April, no bonds bearing date January 1st,
could be issued by the city of Cleburne, and we have found
no authority sustaining such a proposition.
Upon all this branch of the case, we can frame no better
reason for our judgment for the appellee than is contained
in § 6 of the act of March 26th, in the words, "such bonds
shall be sold in such manner as the corporate authorities
shall deem for the best interest of the city or town."
The judgment of the superior court is affirmed, with costs
to appellee.
HOYT, SCOTT and DUNBAR, JJ., concur.
ANDERS, C. J., not sitting.