Clarke v. Town of Northampton

WAEEACE, Circuit Judge. We agree with the opinion of the court below that the bonds in suit are void because created without any authority by the officers who issued them to represent the town of Northampton, and that the long-continued payment of interest upon the bonds by the town did not validate them by ratification or estoppel. That the bonds were created without any authority is conclusively settled by the decision in Rich v. Mentz, 134 U. S. 632, 10 Sup., Ct. 610, 33 L. Ed. 1074. In answering in that case the first and second questions certified by the court by the judges of the Circuit Court, the court adjudged that a petition in form and substance such as the one in the present case was not sufficient to authorize the county judge to take jurisdiction of the proceeding under which the bonds purported to have been created. The bonds in that case, as in this, purported to be issued under the same statutory authority, the statute of this state of May 18, 1869, as amended in 1871; and, a distinct answer having been given by the court to the distinct question whether [662] the county judge could take jurisdiction and proceed to render an adjudication, it is impossible to escape the effect of that answer as a controlling decision in the present case. It follows inexorably that the adjudication of the county judge was void, that the officers appointed by him to carry the adjudication into effect never became the agents of the town for that purpose, and that the statutory authority by which alone the town was empowered to lend its credit was never brought into existence. If the bonds had been issued irregularly by the agents of the defendant, within the doctrine declared in many adjudications, the payment of interest upon them for a series of years would amount to a ratification by the defendant, notwithstanding the interest was raised by taxation. But this doctrine is not applicable in cases where there is a total want of authority on the part of the town to issue obligations. Parkersburg v. Brown, 106 U. S. 487, 1 Sup. Ct. 442, 27 L. Ed. 238; Cowdrey v. Town of Caneadea (C. C.) 16 Fed. 532. “The objection to them is not- that they were issued irregularly, but that there was no power to issue them at all. They are to be made good, if at all, not by waiving irregularities in the execution of an old power, but by the creation of a new one.” Katzenberger v. Aberdeen, 121 U. S. 172, 178, 7 Sup. Ct. 947, 950, 30 L. Ed. 911. Under these circumstances, any attempted ratification by the town was nugatory, and it could not estop itself even by the most solemn promise, unless made with statutory sanction. The judgment is affirmed.