Coler v. Board of County Com'rs of Santa Fe County

• Citation: 27 P. 619,6 N.M. 88,1891 -NMSC- 024
• Parties: COLER v. BOARD OF COUNTY COMMISSIONERS OF SANTA FE COUNTY.
• Decision Date: 12 August 1891
• Court: Supreme Court of New Mexico

27 P. 619

6 N.M. 88, 1891 -NMSC- 024

COLER v. BOARD OF COUNTY COMMISSIONERS OF SANTA FE COUNTY.

Supreme Court of New Mexico

August 12, 1891

Appeal from district court, Santa Fe county; WILLIAM H. WHITEMAN Judge.

Action by William N. Cole, Jr., against the board of county commissioners of the county of Santa Fe, to recover on interest coupons. Judgment for plaintiff. Defendant appeals. Affirmed.

Laughlin Gildersleeve & Preston, Thomas Smith, Dist. Atty., R. E Twitchell, and N. B. Field, for appellant.

Catron, Knaebel & Clancy, for appellee.

McFIE J.

This was a suit to recover the amount of overdue interest coupons on bonds issued by the appellant in aid of railroads. On the 31st of December, 1887, plaintiff filed in the district court in and for Santa Fe county a declaration containing ten counts. Nine of the ten counts were special counts in substantially the same language, and setting forth that the cause of action arose upon a large number of interest coupons, the different numbers and amounts being set forth in the several special counts, copies of the interest coupons being attached to and filed with the declaration. A demurrer was sustained to all the special counts, and the plaintiff elected to go to trial on the remaining count of the declaration, the common money count, the bill of particulars, and the stipulation as amendatory thereto. The defendant demanded the filing of a bill of particulars, and the rule was discharged by the plaintiff, by referring to the coupons on file with the declaration as a sufficient bill of particulars. The defendant filed six pleas: First, the general issue; second, plea of four years' statute of limitation; third, plea of six years' statute of limitation; and the fourth, fifth, and sixth pleas set forth substantially that the promises and undertakings alleged by the plaintiff, if any such were made, were illegal and void for want of authority in the probate judge and the county commissioners of Santa Fe county to call or hold an election for the purpose of granting aid to railroads; that the amount of the bonds issued was excessive; that the bonds bore an unauthorized rate of interest; that the county had no authority to issue or deliver the bonds; that they were not issued in accordance with the vote of the people; that the recitals did not recite the conditions upon which the bonds were voted; and that the railroad had not been constructed. The plaintiff joined issue on the first plea; replied to the second and third, in substance, that the obligations were not barred by the statute; and to the fourth, fifth, and sixth pleas of the defendant the plaintiff replied, in substance, that the action was founded upon coupons and contracts in writing for the payment of the interest upon certain bonds which on their face purported to be bonds of the county of Santa Fe, issued in full conformity to and compliance with the statutes of the territory of New Mexico, authorized by the vote of the qualified electors, and that the plaintiff had purchased said coupons for a valuable consideration, and without notice of the matters alleged in the defendant's pleas. Rejoinders to each of the replications filed by the plaintiff to the defendant's fourth, fifth, and sixth pleas were filed by the defendant, but demurrers were sustained to each of them, and the defendant afterwards filed amended rejoinders, in which it substantially rejoined, to each of the plaintiff's said replications, that the action was not founded upon certain coupons or contracts in writing, that the plaintiff did not purchase such coupons for a valuable consideration, and denied that the plaintiff purchased the same without notice. The plaintiff joined issue.

Before proceeding to the trial of the cause, and as bearing upon the question of pleading, a stipulation was filed, as follows: "William N. Coler, Jr., vs. The Board of County Commissioners of Santa Fe County. In the district court, county of Santa Fe, July term, 1889. It is hereby stipulated by the respective parties to the above-entitled action as follows: The defendant admits that bond No. 45, produced by the plaintiff, is one of the bonds from which the coupons in question are detached, said bonds being issued in several series, and all of them in form, tenor, and recitals substantially like said bond No. 45. The pleadings, bill of particulars, and other proceedings shall be deemed and considered as hereby amended so as to embrace the plaintiff's claim on coupons clipped from the bonds aforesaid, to the amount of $19,915.00, of which $4,165.00 matured January 1st, 1888; $5,250.00, January 1st, 1889; and $5,250.00 January 1st, 1889; and $5,250.00 matured July 1st, 1889, with the interest thereon from said several and respective dates of maturity, as well as the plaintiff's claim already specified in the papers on file herein, and also so as to conform to the facts as to the form and recitals of the said bonds, as hereinbefore referred to. The defendant also admits that the county of Santa Fe levied taxes for the years 1881, 1882, 1883, 1884, 1885, 1886, and 1887 expressly for the payment of the interest accruing in those years upon and according to the tenor of the bonds, to which the said coupons were attached; that such taxes amounted to $88,579.00; that of the proceeds of such taxes $36,400.00 were paid on account of the said interest, the said county upon such payment taking up and canceling coupons for a like amount, clipped from the said bonds; that a large sum of money, part of the proceeds of such taxation, was, by the said county, diverted from the purpose aforesaid for which it was raised, and appropriated to other county purposes; that the levy of the said taxes in each of the said years is evidenced by the written records of said county, subscribed in its behalf by its county commissioners, and attested by the proper clerk; that the said bonds and attached coupons were, upon their delivery to and acceptance by the New Mexico & Southern Pacific Railroad Company, sold by that corporation for value, and purchased by divers persons, and in the year 1883, and from time to time thereafter, the plaintiff acquired the said coupons and bonds for value. R. E. TWITCHELL, District Attorney. N. B. LAUGHLIN, THOMAS SMITH, GILDERSLEEVE & PRESTON, of Counsel. CATRON, KNAEBEL & CLANCY, Plaintiff's Attorneys."

Upon the issues thus made up the cause proceeded to trial on the 16th day of August, 1889. The trial resulted in a verdict for the plaintiff, under the instructions of the court, and a judgment was entered upon the verdict for the sum of $78,395.02. To reverse this judgment the appellant brings the cause to this court.

The legislative assembly for the territory of New Mexico, in the year 1872, passed an act to encourage the building of railroads in the territory of New Mexico, and authorizing the counties of the territory to issue bonds, or other evidence of debt, to aid in the construction of railroads, and to receive stock or other securities for the benefit of such counties. The act is as follows: "An act authorizing counties to aid in the construction of railroads. Be it enacted by the legislative assembly of the territory of New Mexico. Section 1. That it shall he lawful for the people of any county in this territory to pledge the credit of such county to borrow money, to issue bonds or other evidences of debt, to assist in the construction of any railroad passing through all or a portion of said county, for such amount or amounts of money, not exceeding for any such road five per centum of the assessed value of the real and personal property of such county, as the electors of said county may determine in meetings or elections that may be held in the various precincts of such county for that purpose, and at said meetings or elections the terms and conditions of such pledge of credit may also be determined as hereinafter provided in this act. The amount of bonds or other evidences [of debt] that may become due in any year shall not exceed two per centum of the assessed value of the property of such county at the time of issuing such bonds or other evidences of debt. Nor shall the rate of interest upon such bonds or other evidence of debt be more than ___ per centum per annum. Sec. 2. It shall be the duty of the probate judge or commissioner who may be hereafter provided by law, as the case may be, to call a meeting or election of the electors of the various precincts of said county who own taxable property, upon the written or printed, or in part written or printed, request of fifteen owners of property, electors and tax-payers of such county, which request shall specify the amount which has to be raised or pledged, and the manner of raising and pledging the same by bonds or otherwise, the rate of interest which has to be paid, the time or times of the payment, and such other matters as they may consider for the welfare and security of the people of the county, and in publishing notices of the meetings or elections to be held in such county there shall also be published with such notice a copy of the request and names upon the same, for which they call the meetings or elections. The questions submitted to the electors shall be those contained in the call for the meetings or elections, and those who vote upon the question of aid shall vote a ticket upon which is written or printed or part written and part printed, the words, 'Aid for railroads, yes;' and those who vote in the negative shall vote a ticket on which is written or printed, or part written or printed, the words, 'Aid for railroads, no.' The elections or meetings to determine the question of aid shall be held at the usual places of voting in the precincts of the county, to be called in the same...