Brinkworth v. Grable

63 N.W. 952, 45 Neb. 647, 1895 Neb. LEXIS 265

Opinion

Ragan, C.

In 1889 and 1890 the city of Beatrice was a city of the second class having more than 5,000 and less than 25,000 inhabitants, situate in Gage county, then under township organization. In August, 1889, at an election held for that purpose, the electors of the city of Beatrice voted to issue-its bonds in the sum of $50,000, to aid in the construction of the Kansas City & Beatrice railroad. In August, 1889,, the proper authorities of said city duly executed fifty of the bonds of said city, of $1,000 each, drawing interest at the rate of six per cent per annum, payable semi-annually. The bonds were to run twenty years and bore date November 1, 1889. The interest was evidenced by coupons-attached to the bonds. One thousand five hundred dollars-of these coupons matured on the 1st of May, 1890, and a like sum at the beginning of each six months thereafter. The bonds were a donation on the part of the city to the railroad company. There is no question in the case as to the validity of these bonds, nor that the railroad company was entitled to them. In December, 1889, the bonds were presented to the auditor of state for registration and certification. About this time an injunction suit was instituted by a taxpayer of the city of Beatrice, and the auditor and the secretary of state, the city of Beatrice- and its mayor and council were enjoined, — the auditor and secretary of state from registering and certifying the bonds, and the city and its officers from levying a tax to pay the interest thereon. This injunction continued in force until January 1, 1891, when it w'as dissolved. And thereafter on the 2d of January, 1891, the auditor and • secretary of state duly registered and certified the bonds. When the bonds were first presented to the auditor for registration in December, 1889, there were $1,500 of coupons attached to said bonds which would mature before a tax could be lawfully levied and become due with which to pay the same, and when the auditor and secretary ofstate actually registered and certified the bonds, January 2, 1891, there were $3,000 of matured coupons on said bonds, and $1,500 of coupons attached to said bonds which would mature before a tax could be lawfully thereafter levied and become due to pay the same. At the time the auditor actually registered the bonds in question on the 2d of January, 1891, he did not detach from said bonds any coupons whatever. In June, 1891, the proper authorities of the city of Beatrice levied a tax, not only for the payment of the coupons which would mature on the 1st of November, 1891, after said levy, but also a sufficient tax to pay the coupons which matured in May and November, 1890, and May, 1891. The tax so levied was collected by the treasurer of the city of Beatrice, and out of this tax and before the bringing of this suit he paid and discharged the coupons which matured May 1, 1890. This action was brought by James C. Brinkworth, a citizen and taxpayer of said city, to enjoin the latter from paying any of the coupons on said bond which matured prior to the 1st day of May, 1892. The court rendered a decree dismissing the petition of Brinkworth, and he has appealed. Section 37, chapter 9, Compiled Statutes, 1893, provides: “ That whenever a bond of any county, city, town, township, precinct, village, school district, or other municipality, shall be presented to the auditor of public accounts for registration, the auditor shall examine the interest coupons thereto attached, and shall detach as many of them as shall mature before the first taxes levied to meet the same, shall become due and collectible, and stamp said coupons ‘ Detached by the auditor of public accounts/ and send to the treasurer of the county from which said coupons .were issued.” To reverse this decree it is insisted that taxes levied upon the property of the citizens of the city of Beatrice become due and collectible on the 1st day of January after their levy, and that the officers of the city of Beatrice and the county authorities of said Gage county could levy no tax for the payment of these interest coupons after the time at which the auditor actually registered them, January 2, 1891, which tax would be collectible until January, 1892, and therefore it was the duty of the auditor to detach all the coupons which matured in May and November, 1890, and May and November-1891. But counsel is mistaken as to the time when taxes levied upon the property of the city of Beatrice become due and collectible. Such taxes become due and collectible on the 1st day of October after their levy. (See secs. 83, 91, ch. 77, Compiled Statutes, 1893.)

Assuming for the moment the correctness of the contention of appellant’s counsel, that the auditor at the time he actually registered these bonds, January 2,1891, should have detached therefrom all coupons which had then matured and which would mature before a tax could be levied and become due for the payment of the same, the auditor should have detached only the coupons which matured on the 1st of May and November, 1890, and the 1st of May, 1891, as the proper city and county authorities could have levied a tax in June, 1891, for the payment of the coupons which fell due November 1,1891, and this tax would have fallen due on the 1st of October of said year and been available for the payment of the coupons maturing in the following November. But these bonds were presented to the auditor for registration on the 21st of December, 1889. It was his duty to register and certify them at that time, and the record shows he would have done so but for the fact that he was prevented from so doing by the injunction proceedings hereinbefore mentioned. The auditor and secretary of state then, when they did register and certify these bonds in January, 1891, should have registered and certified them as of the 21st of December, 1889, when they were received for registration, and it would have been entirely proper to have made the certificates of registration and certification show that the registration had been delayed by injunction proceedings, and for that reason the bonds were registered and certified as of December 21,1889. Counsel for the appellant insists that the auditor and secretary of state could not do this, and that as the bonds were not actually registered until January 2, 1891, and as no taxes could be levied after that time for the payment of the coupons on these bonds, and which tax would mature prior to October, 1891, that it was the duty of the auditor to detach not only, the coupons which would mature in May, 1891, but to detach the coupons which had matured in May and November, 1890, as no tax had been levied at the time the bonds were actually registered for the payment of such coupons. No authority is cited to sustain this contention; and with our knowledge of the well known legal ability of counsel for the appellant we rely with perfect confidence on the presumption that no such authority can be found. On the other hand, counsel for the appellees insist that the auditor should not have detached from these bonds any coupons whatever, as said section 37 of the statute quoted above has no reference to bonds issued by a city to aid a work of internal improvement. We do not agree with this contention. The statute applies to all bonds, and it is settled law that a municipal corporation has no power to issue its bonds in aid of a work of internal improvement unless expressly authorized by statute to do so. (Young v. Clarendon Township, 132 U. S., 340.) The object of the enactment of the statute, said section 37, was to prevent the municipalities of the state from executing and putting upon the market their obligations for the payment of money which would by their terms mature before a tax could bg legally levied and become due for the payment of the same. Indeed, we think this is the spirit of all the statutes of the state authorizing municipal corporations to issue bonds. The law authorized the city of Beatrice to issue its municipal bonds to aid a work of internal improvement, but it had no authority to issue and deliver an interest coupon which would mature before a tax could be lawfully levied and become due for its' payment. The coupons on these bonds which matured in May, 1890, were issued without authority of law. They were absolutely void even in the hands of an innocent purchaser. (Marsh v. Fulton County, 77 U. S., 676.) These bonds then were, as a matter of law, registered December 21, 1889, and it was the duty of the auditor, under said section 37 of the statute just quoted, to detach from said bonds the coupons which matured May 1, 1890, and return them to the county treasurer of Gage county. After the injunction proceedings were dissolved it was the duty of the city of Beatrice, in Gage county, in June, 1891, to levy taxes for the payment of the coupons which would mature on the 1st of November, 1891, and for the coupons which had matured in November, 1890, and May, 1891, and for the payment of which no provision had been made by reason of the pendency of the injunction proceedings; or, in the language of section 79, chapter 77, Compiled Statutes 1893, it was the duty of the city authorities of Beatrice in June, 1891, to include in their levy of taxes a sufficient sum to pay the amounts then due upon all legal and valid bonds outstanding against the city. The coupons which matured November 1, 1890, and May 1, 1891, were legal and valid obligations outstanding against the city; but the coupons which matured on May 1, 1890, were not legal, valid, or binding obligations of the city, and the city authorities in June, 1891, should not have included in their levy any sum of money for the payment of such coupons.

We have said that the treasurer paid the coupons which matured on the 1st of May, 1890, before the bringing of this suit. The record shows: “ And now, on this 28th of March, 1892, came the plaintiff and files his petition,” etc. This petition was sworn to on the 27th of May, 1892, and at the end of the petition is the following: “ Filed May 28, 1892. R. W. Laflin, Clerk of the District Court.” The amended answer on which the action was tried, and the only one in the record, was sworn to on the 12th of April, 1893, but the record does not recite when this answer was filed. There is nothing in the record to show that any summons was ever served upon the treasurer, nor that any tempoz’ary injunction or restraining order was ever served on him. The case was heazd on the 27th of May, 1893, and the decree recites that by stipulation the hearing was to be a final one, and the court authorized, after hearing the evidence, to enter a final decree instead of a temporary order of injunction. With the record in this shape we must presume that the treasurer paid the coupons which fell due on May 1, 1890, before the bringing of this action. We conclude, therefore, (1) that the bonds in controversy were registered and certified, in contemplation of law, on the 21st of December, 1889; (2) that the auditor should not have detached from said bonds any coupoizs except tizóse which matured on the 1st of May, 1890; (3) that the authorities of the city of Beatrice in the levy of taxes made by them in June, 1891, properly included in such levy a sum sufficient to pay the coupons which matured on the 1st day of November, 1890, and the 1st day ot May, 1891. The decree of the district court is, therefore, in all things

Affirmed.