Desmond v. City of Jefferson
| Decision Date | 18 January 1883 |
| Citation | 19 F. 483 |
| Parties | DESMOND v. CITY of JEFFERSON. |
| Court | U.S. District Court — Western District of Texas |
Thomas P. Young, for plaintiff.
Chas A. Culberson and H. McKay, for defendant.
This suit was filed in this court January 18, 1883. The plaintiff seeks to recover upon quite a number of bonds, with coupons attached, issued by the proper authority, viz., the mayor and attested by the recorder, and dated the third day of September, 1870. Of these bonds there were 54 for the sum of $100, and one for the sum of $50. These bonds were substantially as follows:
Fire Engine Bonds.
$100
To each of these bonds coupons were attached for the interest, as the same accrued by the terms of the bond, and they were as follows:
'The city of Jefferson will pay to the bearer ten dollars for 12 month's interest, due June, 1880, on bond. No. (say) 54, for $100.
(Signed)
'A. G. MALLOY, Mayor.'
Process issued and was served upon John Penman, the officer stating in his return that said Penman was the acting mayor of the city of Jefferson, Texas,--service made January 18, 1883. On the fourteenth day of February, 1883, this court then being in session, the said Penman filed a motion under oath to quash the service on the ground that he was not the mayor. The motion to quash was signed by counsel, and stated that the defendant appeared for the purpose of the motion only. On the same day, however, counsel for the defense filed in court special exceptions to the petition, and also filed answer to the merits. These pleadings, by way of caption, state in case the motion to quash is not sustained, then they rely upon the exceptions and answer to the merits. At that term of the court the entry upon the minutes shows that the cause was continued by consent of the parties, and no action had upon the motion to quash until the present time. I am of the opinion that if this motion could ever have been available it is too late at this time to press that question. I find answer to the merits filed-- action taken with the concurrence of the defendant's counsel, who are attorneys of this court. The motion to quash, therefore, is denied, as I find here in the case an appearance which binds defendant, whether properly served or not.
It is admitted that these bonds were used in the purchase of a fire engine for the city, and that if the city had authority to issue these bonds and coupons, that, upon the merits of the case, the plaintiff has a right to recover, and that there are no equities existing against the bonds and coupons. It is, however, contended that the plaintiff has not made out his case because he has not produced in evidence the ordinance referred to in the bonds themselves. These bonds recite upon their fact that they were issued in pursuance of an ordinance passed by the city of Jefferson, dated April 18, 1870, entitled 'An ordinance to provide for the issuance of bonds for the purchase of a steam fire engine. ' It is believed to be well settled that, if the power to issue these bonds existed in the corporation, the holder will be protected, and when, as in this case, the authority appears on the face of the instrument, the courts will presume that the authority was rightfully exercised.
This brings me to the consideration of the main question, viz whether the authority in fact did exist in the corporation to issue these bonds, with the interest coupons attached, which are in the nature of commercial paper. It may be remarked that in this case none of the evils which flow from the exercise of this power are present, as the bonds were disposed of for the very purpose mentioned in the bonds themselves. The engine was procured for and used by one of the organized fire companies of the city. Did the power to issue these bonds exist? The charter of the city of Jefferson was passed September 11, 1866. It confers upon the city the usual powers, such as contracting and being contracted with. * * * It gives power 'to organize a fire department, and to regulate the same, and to pass such other laws as may be deemed necessary for the prevention and extinguishment of fires,' etc. If there were no other grant of power, it would seem to me that it must be held from this that the right to purchase the engine was clearly granted, if not by specific grant, by necessary implication. But this is not all the power vested in the city by its charter. After enumerating the above and numerous other powers, it provides it may 'do such other acts and pass such other ordinances, not inconsistent with the constitution and laws of this state or of the United States, as may conduce to the interest and welfare of said city. ' This is a very large and, in the light of experience with reference to...
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State v. Babcock
...terms, and time of payment, and to give suitable acknowledgment of indebtedness by bond, note, or other contract. In Desmond v. City of Jefferson, 19 F. 483 (Texas), was held that where the charter of the city empowered it to organize a fire department and regulate the same, and adopt such ......