Fulton v. Town of Andrea
| Decision Date | 13 December 1897 |
| Docket Number | 10,689--(69) |
| Citation | 73 N.W. 256,70 Minn. 445 |
| Parties | FREDERICK R. FULTON and Another v. TOWN OF ANDREA |
| Court | Minnesota Supreme Court |
Action in the district court for Wilkin county to recover $ 160, the amount due upon coupons numbered 4 and 5 of two certain bonds issued in the name of the defendant town and signed by one Perry C. Heath, as chairman of its board of supervisors. The answer denied the execution and delivery of the bonds and alleged that at the time of their pretended execution and delivery one Philip Heider was chairman of its board of supervisors. The answer also set up that in an action in the same court between one Weiser, former owner of these coupons and this defendant to enforce payment of coupons numbered 1 2 and 3 of the same bonds, judgment was entered in favor of this defendant, that said bonds and coupons were void and of no effect. From a judgment that the bonds and coupons mentioned in the complaint were null and void, entered pursuant to findings and an order of C. L. Brown, J plaintiffs appealed. Reversed.
Judgment reversed.
Ezra G. Valentine and Burke Corbet, for appellants.
If the township board believed that a vacancy existed, under G. S. 1894, § 962, it had a right to fill the vacancy thus assumed to exist. Nichols v. MacLean, 101 N.Y. 526, 538; Gregg v. Jamison, 55 Pa. St. 468; Ellison v. Aldermen, 89 N.C. 125; Diggs v. State, 49 Ala. 311; Watkins v. Inge, 24 Kan. 612; McLean v. State, 8 Heisk. 22; Carli v. Rhener, 27 Minn. 292; Boardman v. Halliday, 10 Paige, 223. Heath was an officer de facto of the township and so far as his acts concerned the purchasers of the bonds and interest notes, they are valid and will bind the township. King v. Philadelphia, 154 Pa. St. 160; Magneau v. City, 30 Neb. 843.
If different proofs are required to sustain two actions, a judgment in one of them is no bar to the other. Stone v. U.S. 64 F. 667, 671; Fishburne v. Engledove, 91 Va. 548. No man ought to be bound to proceedings to which he was a stranger. Greenleaf, Ev. §§ 522, 528. To constitute res adjudicata the judgment should have been pronounced between the same parties. Herman, Est. § 85. Separate coupons have the effect of separate notes or securities and as such are separate causes of action. 2 Daniel, Neg. Inst. § 1489. Cromwell v. County, 94 U.S. 351; Nesbit v. Independent, 144 U.S. 610; Town v. Jordan, 119 U.S. 680; County v. Marcy, 97 U.S. 96; Carroll v. Smith, 111 U.S. 556. Not only may a suit be maintained upon an unpaid coupon in advance of the maturity of the principal debt, but the holder of the coupon is entitled to recover interest thereon from its maturity. Amy v. Dubuque, 98 U.S. 470.
Houpt & Baxter, for respondent.
G. S. 1894, § 892, subd. 4, provides under what circumstances an office becomes vacant, and section 963 directs how a vacancy shall be filled. It is the rule that purchasers of municipal bonds must take the risk of the official character of the persons who execute them. Bissell v. Spring, 110 U.S. 162. Two persons cannot be officers de facto for the same office at the same time. Carli v. Rhener, 27 Minn. 292. This action is barred by the former action and the judgment rendered therein as set forth in defendant's answer. Snowman v. Harford, 57 Me. 397; Leslie v. Bonte, 130 Ill. 498; Cromwell v. County, 94 U.S. 351; Aspden v. Nixon, 4 How. 467.
This action was brought to recover the amount due on several coupons attached to a couple of bonds of five hundred dollars each issued by the town of Andrea, defendant herein, dated June 18, 1887, under the provisions of Sp. Laws 1883, c. 135, and the acts amendatory thereof.
These bonds were issued upon the petition, duly signed, of two-thirds of the legal voters of the town, asking, for the purpose of raising the sum of one thousand dollars for the construction of public roads within the township, that the town issue and sell its bonds, with coupons attached, and that the money obtained from the sale thereof be used under the direction of the supervisors in the purchase of a New Era road grader. After due trial of the grader it was purchased for the consideration of said bonds, which were delivered to the agent of the New Era Manufacturing Company, and for value, before maturity, it sold said bonds to these plaintiffs, who sold them to one Weiser, and subsequently plaintiffs repurchased them, and are now the holders and owners thereof.
During the years 1887 and 1888 this grader was used by the road and district officers of said town and by the citizens thereof upon the roads of said town, and it has remained in said town ever since. There is no question of fraud or failure of consideration or defect in the construction or operation of the grader, but some time in 1888 the then chairman of the board of supervisors refused to give his consent to the use of the grader on the ground that the town did not own it, and the defendant town refuses to pay the past-due coupons attached to said bond.
Its refusal to pay these coupons and further to use the grader, is based upon the following facts: In March, 1887, one Philip Heider was duly elected to the office of chairman of the board of supervisors of the town of Andrea, Wilkin county, in this state, and thereafter duly qualified as such officer, and entered upon the discharge of the duties of said office. On June 15, 1887, Heider departed from the state of Minnesota on a "prospecting tour" throughout the West, with the expressed intention, when he left, to remove permanently from this state in case he could find a more suitable location elsewhere; otherwise he intended to return to and remain a resident of this state and said town. In about three weeks after his departure he returned to said town, and ever since has remained a resident thereof.
On June 18, 1887, and after said taxpayers had presented said petition to the board of supervisors, said Heider being absent from the state, the duly-constituted appointing board of said town was convened, and, assuming that a vacancy existed in the office of chairman of said board of supervisors, appointed one Perry C. Heath to said office, who immediately thereafter qualified and discharged the duties of said office. After the appointment of said Heath as aforesaid, and on June 18, 1887, the said town board of supervisors, said Heath acting as a member thereof, met at the office of the town clerk of said town for the purpose of considering the said petition. Said board then and there voted to issue the bonds of said town, with interest coupons attached, in the sum of one thousand dollars, for the purchase and in payment of a New Era road grader, manufactured and sold by the New Era Manufacturing Company. Pursuant thereto the said Heath, acting as chairman of said board, and C. H. McCausland, the duly elected and qualified clerk of said town, executed the bonds set forth and described in the complaint, and deposited them with the said town clerk to abide the result of the trial of said road grader.
Several legal questions have been raised and discussed in the briefs of the respective counsel, but only two seem necessary for us to pass upon in the determination of this case, and one of them is this: Was Perry C. Heath, at the time he signed these bonds as chairman of the board of supervisors of the town of Andrea, an officer de facto? If so, the judgment entered in the trial court in favor of the defendant must be reversed.
On reading the vast number of decisions, both English and American, as to what constitutes an officer de facto, one would naturally suppose that this question had been definitely placed at rest, notwithstanding the numerous difficult questions to which it has given rise.
In modern cases the generally accepted definition of an officer de facto is that given by Lord Ellenborough, as follows "One who has the reputation of being an officer he assumes to be, and yet is not a good officer in point of law." Rex v. Corporation, 6 East, 356. While some of the courts, as a corollary from this definition, hold that "there must be some color of an election or appointment or an exercise of the office, and an acquiescence on the part of the public for a length of time which would afford a strong presumption of at least a colorable election or appointment," other decisions recognize a broader rule, tending to...
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