Mosher v. Ind. School Dist.

42 Iowa 632

• Court: Supreme Court of Iowa
• Decided: April 5, 1876
• Status: Published

Opinion

Day, J.

1. PLEADING: bonds: limit of indebtedness I. It is objected that the petition does not show the amount of taxable property in the district at the time of issuing the bonds, nor the amount of bonds issued, nor ^ie amount of former indebtedness of the district; that it does not show the holding of any election to vote upon any sum of money to be raised by the sale of the bonds; and that it does not show that the defendant received any consideration for the bonds and coupons, or: that they were issued for any cause authorized by law.

Article eleven, section three, of the Constitution provides that no political or municipal corporation shall be allowed to become indebted in any manner, or for any purpose, to an amount in an aggregate exceeding five per centum on the value of the taxable property within such corporation.

Chapter 98, Laws Twelfth General Assembly, authorizes independent school districts to issue negotiable bonds, to run any period not exceeding ten years, drawing a rate of interest not exceeding ten per centum per annum, which may be paid semi-annually. The same chapter provides that it shall be lawful for the school board of such district to submit to the voters thereof the question of issuing bonds as contemplated by the act, and, if a majority of votes be in favor of the loan, the board shall issue the bonds to the amount voted.

It is urged by appellee that it is incumbent upon plaintiff to allege and prove that the bonds in question were not issued in excess of this constitutional restriction; that the election required was held; that the bonds were issued for a purpose authorized by law, and that defendant received a consideration for them.

2.-: —: burden of proof. We know of no principle of law or rule of policy which would impose this burden upon the' plaintiff. Authority is conferred upon ‘ independent school districts for , . , . , certain purposes, and m a prescribed manner to issue their .negotiable bonds. These bonds are intended to be sold at not less than their par value. It would much impair their value in the market and the facility of their negotiation, if the holder must assume the burden of proving that they have, in all respects, been issued in conformity with law. As the district is authorized to issue them under certain circumstances, and for certain purposes, when they are placed upon the market in the proper form, executed by the proper officers, there is prima facie a presumption that they have in all respects been issuéd in the proper manner. The holder makes out a prima facie case when he introduces in evidence his bond. Any illegalit}' in its execution must be shown by the defendant as a matter of defense.

Appellee cites and relies upon section 2711 of the Code, which provides that “ Whenever a party claims a right derogatory from the general law, or when his claim is founded upon an exception of any kind, he shall set forth such claim or such exception in his pleading.” The error of appellee is in assuming that the party who seeks to- recover upon a bond issued by an independent school district,, claims a right derogatory from the general law. Such a party claims a right under the general law. The statute which authorizes independent school districts to issue bonds, is a public and general statute. It is as much a part of the general law as the law authorizing counties to levy taxes or to issue warrants. It is no less a part of the general law, from the fact that it has not existed from time immemorial.

The ease of Andover v. Grafton, 7 N. H., 298, cited and relied upon by apjiellee, is not in point. In that case the selectmen had no specific authority to bind the town by note, and the authority was inferred simply from the authority to contract. They had no specific power to issue paper possessing all the properties of negotiability.

We are clear that the court erred in sustaining the demurrer.

3. ___:demurrer: an other action, II. Another ground of demurrer is that there is another action pending, involving the same subject matter. Appellee urges that the Code, wisely or- unwisely, provides that the defendant may demur when there is another action pending between the same parties for the same cause of action. Citing section 2618. This is true; but the same section provides that the defendant may demur to the petition only when the ground of demurrer appears upon its face. This petition does not show that there is another action pending between these parties for the same cause.

The judgment is reversed, and the cause remanded, with directions to overrule the demurrer, and allow defendant to answer, 'if' so advised.

Reversed.