Board of County Commissioners v. Linn

Chief Justice Campbell (after stating the facts) delivered the opinion of the court. Two assignments of error are relied upon and argued by counsel for appellant: first, as to the correctness of the findings upon the evidence; second, the right to enter judgment for overdue interest on coupons attached to county bonds. 1. A number of actions upon this same series of bonds have heretofore been brought and determined in the state and federal courts. In Lake County v. Standley, 24 Colo. 1, this court, in an able opinion by Mr. Justice Goddard, in an action upon coupons of the same series of bonds, has declared the substantive law and established the principles by which this case is controlled. It was there said that an issue of county bonds based upon an indivisible contract and in excess of the amount of indebtedness which may be incurred under the constitution is void as to the whole issue; but the validity of any particular bond issued in compliance with the funding act of 1881 in exchange for outstanding valid county warrants is not affected by the fact that other bonds of the same — 453 — series were issued in exchange for invalid warrants. That is to say, although a part of the series of funding bonds issued in exchange for an outstanding indebtedness may be invalid, others of the same series may be valid. It was also decided that an issue of funding bonds by a county in exchange for outstanding warrants is not a creation of a new debt, and that when a county seeks to evade liability on the ground that its issue of funding bonds is in excess of the constitutional limit, it must assume the burden of facts showing their invalidity. According to this decision, also, the assessment of the preceding year furnishes the test by which the power of the county to incur indebtedness under the constitutional limit is to be determined. Under this rule September 1, 1879, is the time when the assessment of 1879 was completed, and it became the test by which the power to incur further indebtedness wras limited. By applying the principles of that decision to the case in hand, it is to be observed that when the plaintiff produced his bonds in evidence, regularly and in due form executed by the authorized officers of the county, and with its official seal affixed, the presumption was that they were valid, and when the warrants, similarly executed and attested, which became merged in these bonds were introduced by defendant, the same presumption attached to them. The validity of the bonds and the warrants being presumed, it was incumbent upon defendant to establish by a fair preponderance of the evidence that the alleged indebtedness which was merged in the bonds was invalid because contracted at a time when the county could not lawfully incur further indebtedness. Before taking up the evidence we call attention, to — 454 — some of appellee’s contentions. One of them is that the county is estopped to say that the alleged primary indebtedness was void because of the recital in the bonds that they were issued “under and by virtue of, and in full compliance with,” the funding act. And since that act limited the amount of bonds to be issued to the sum of the county indebtedness at a specified date, and the amount of that indebtedness was to be determined by the county commissioners and a certificate made of the same and entered in the records of the county, this recital, taken in connection with the other recitals in the bonds that “all the provisions and requirements of said act have been fully complied with by the proper officers in the issuing of this bond,” was, and is, on the principle that things which are equal to the same thing are equal to each other, necessarily a certificate that the bonds had been issued in compliance with, and not in violation of, the constitutional, as well as the statutory, limitation. To this proposition citation is made to The Board of County Commrs. v. Sutliff, 97 Fed. Rep. 270, 276, and authorities there collated; Hughes County v. Livingston, 104 Fed. Rep. 306; City of Pierre v. Dunscomb, 106 Fed. Rep. 611. There are decisions by the supreme court of the United States, like Sutliff v. Lake County Commissioners, 147 U. S. 230, to the effect that a recital in a county bond that all the provisions of the statute are complied with does not estop the county, whose defense to a suit on the bond is that it was issued in violation of the constitution, to prove that constitutional defect. The United States circuit court of appeals in the cases just referred to has drawn a distinction (at least has tried to do so) between the Sutliff case and the ones in which they sustained the plea of estoppel. We do not find it neces — 455 — sary to decide this point now, though we cannot pass it by without observing that the reasoning of the circuit court of appeals is persuasive, as an examination of its opinions will disclose. But the trial court permitted appellee, notwithstanding this recital, to introduce evidence touching the constitutionality of the alleged debt of the county. Objection was made by appellee to the introduction of evidence of what the records of the county were supposed to show respecting its indebtedness. He contends that while in the case of Sutliff v. Lake County Commrs., 147 U. S. 230, a purchaser of bonds was charged with notice of what the public records might show as to the public indebtedness, this was because the statute itself, under which the bonds were issued, expressly required the facts which constituted the statutory or constitutional conditions precedent to be made a matter of public record. But the case at bar, as were Lake County v. Graham, 130 U. S. 674, 682, and Chaffee County v. Potter, 142 U. S. 355, 363, is of another class where the bonds were issued in pursuance of an act which committed to the officers who issued them the determination whether the facts existed which constituted the constitutional and statutory conditions precedent, and did not require those facts tobe made matter of public record. Therefore, this evidence of the public record was inadmissible, for a pufchaser of bonds was not charged with notice of, or required at his peril to consult it. He might, on the contrary, rest content with a recital in the bond itself that the officers to whom the act committed the power to determine the conditions precedent had properly discharged their duties. A further objection was that no such public record was made of this indebtedness as to charge purchasers — 456 — with notice. The district court overruled all objections and heard the evidence. With the exception of the oral testimony of the witness Pearce the character of evidence by which the defendant sought to discharge its burden was precisely the same as that introduced by the same defendant in Board of Commrs. v. Keene, Five-cents Savings Bank, 108 Fed. Rep. 505. The action there was upon coupons clipped from other bonds of the same series, and in that case, in an opinion by Mr. Justice Sanborn, it was held that the evidence offered to which we have just adverted was improperly received by the trial court. Caldwell, circuit judge» dissented, holding that such evidence at least tended to prove the unconstitutionality of the debt and should have gone to the jury, its weight to be passed on by that body. Here, however, the trial court admitted the evidence there rejected, and if this evidence does not sustain the burden imposed on defendant it is not necessary for us to inquire if its rulings admitting the evidence were erroneous. The case at bar is not stronger for defendant by the testimony of the witness Pearce, than was the case as made for the county in defending the action of the Keene Savings Bank, supra. It is uncertain, and itself shows that the custom which it was sought thereby to prove was subject to many exceptions. The witness himself did not pretend to have any independent recollection of the method of procedure and so, very little, if any, weight should be attached to his uncertain recollection. At all events, it is as favorable to the view of plaintiff as to that of defendant. The question, then, upon the main issue is whether the evidence before the court established the fact — 457 — that the primary indebtedness of the county, or any part thereof which is now represented by the bonds involved in this case, was illegal and void as being beyond the power of the county to contract within the limits prescribed by the constitution. In argument counsel admit that the evidence on this issue is not the best evidence or conclusive, but it is the best that can be produced after the lapse of nearly twenty years. We think both propositions are true. That it is the only evidence within control of the county is its misfortune, not the fault of plaintiff. But because it is the only evidence is no reason why we should hold it sufficient to establish the invalidity of the debt. If its officers had gathered the necessary data and embodied the same in its public records and they had been properly kept and preserved, the county might have furnished conclusive evidence, if such was the fact, that the indebtedness on which the bonds in suit were founded was contracted after the constitutional limit had been exceeded. The failure in this respect does not absolve it from the ordinary rules which relate to the sufficiency of proof, or cast the burden upon its adversary who is not responsible for the county’s omission to preserve the evidence, or for its loss or destruction, if such occurred. In the answer the county alleges that it is impossible to trace any particular warrant, and of course any particular debt, into any particular bond involved in this suit. Merely because some illegal consideration for some one or more of the bonds of this series may have been given, is not sufficient to invalidate the entire series; and though some illegal consideration may have entered into all, or some, of the other bonds of the series than those herein involved, still unless that taint can be traced into the bonds in ques — 458 — tion, the defendant may not escape liability thereon. As already said, the defendant in its answer avers that it is impossible to trace any particular warrant into any particular bond in suit, and the evidence by which it sought to do this very thing, in our judgment signally fails to establish the identity now asserted. Indeed, we think upon that allegation of the answer, the court, had it been requested to do so, might properly have ordered judgment on the pleadings to be entered in favor of the plaintiff. That, however, is not now important, for the parties submitted the case upon evidence which, in the judgment of the trial court, was not sufficient to establish the alleged invalidity of the debt. Possibly it may be true that, as counsel for defendant assert, the whole, or part, of the series of bonds is invalid, but if so, it is the misfortune of defendant or the result of the neglect of its own officers, that it has not been able to establish that fact in court. Under the doctrine of the Standley case and the case of the Keene Five-cents Savings Bank, supra, and People v. May, 9 Colo. 404, there were two classes of valid warrants which the county might have issued» and which it might have had outstanding on January 2, 1882, when these bonds were exchanged for warrants: First, those issued in exchange for debts contracted prior to September, 1879; and, second, those issued after that date for the current expenses of the county for each year against taxes levied to pay those current expenses. The defendant, confessedly, except by mere inference not founded upon clear or satisfactory evidence, has failed to show that the bonds in suit here were not, or might not have been, exchanged for one or both of those classes of warrants. In any event, after a careful examination of — 459 — the evidence we cannot say that the findings of the trial court are not sustained. 2: It has been decided by this court that interest on interest, or compound interest, may not be recovered. Filmore v. Reithman, 6 Colo. 120; Hochmark v. Richler, 16 Colo. 263; Denver B. & M. Co. v. McAllister, 6 Colo. 261. In Illinois the same ruling has been made. But in that state, from which our interest statute was taken, it has been held that interest may be recovered upon unpaid coupons belonging to, or cut from, a municipal bond, such as the coupons upon which this action is founded. The decisions of the supreme court of the United States are to the same effect, and we think the court below was justified under section 2252 Mills Ann. Stat. in awarding interest The following authorities sustain this ruling: Walnut v. Wade, 103 U. S. 683; Gelpcke v. City of Dubuque, 1. Wall. 175; Hollingsworth v. City of Detroit, 3 McLean 472; Aurora City v. West, 7 Wall. 82; Harper et al. v. Ely et al., 70 Ill. 581; Humphreys v. Morton et al., 100 Ill. 592; Smith v. Luse, 30 Ill. App. 37; Benneson v. Savage, 130 Ill. 352; Bowman v. Neely, 32 Ill. App. 356; Ibid, 46 Ill. App. 139; Cook v. Ills. Trust & Sav. Bank, 68 Ill. App. 478; Hughes County v. Livingston, 104 Fed. Rep. 306, 322. Perceiving no error in the judgment, it is affirmed. Affrmed.