Marion County v. Coler

• Decision Date: 11 December 1894
• Docket Number: 239.
• Citation: 67 F. 60
• Parties: MARION COUNTY v. COLER et al.
• Court: U.S. Court of Appeals — Fifth Circuit

67 F. 60

MARION COUNTY v. COLER et al.

No. 239.

United States Court of Appeals, Fifth Circuit.

December 11, 1894

The courthouse and jail bonds sued upon were issued under an act passed by the legislature of Texas February 22, 1873. The provisions of this act which are material to the present controversy are found in sections 1, 2, and 3, which are as follows:

Section 1. Be it enacted by the legislature of the state of Texas That J. T. Veal, J. Wilbourn Young and John B. Ligon, be and are hereby appointed commissioners and trustees of the county of Marion, in the state of Texas, to procure grounds in a suitable location in the city of Jefferson, in the said county of Marion, upon which to erect a court house and jail for the use of said county, free of charge to said county. That said commissioners or any two of them may, after said grounds are secured, proceed as soon as practicable to cause said buildings to be erected for the use aforesaid, and to pay for the same with the bonds of said county as hereafter described, or to sell said bonds and pay for said buildings out of the proceeds arising from the sale of said bonds as to them may seem best.

Sec. 2. That when said grounds are selected by said commissioners and the sum ascertained to be necessary to pay for said buildings, said commissioners shall cause to be printed or engraved the bonds of said county, to become due and payable twenty years after the date thereof, to bear interest at the rate of eight per cent per annum from the date of said bonds and to have coupons attached to each of said bonds for each year's interest thereon, to become payable to bearer on the 1st day of July of each year after the date of their issuance. The total amount of said bonds shall not exceed the sum of seventy-five thousand dollars, and they shall be issued in sums not less than one hundred nor more than one thousand dollars each, which said bonds when so printed or engraved, as aforesaid, shall be signed by the presiding justice of the peace of said county, and countersigned by the clerk of the district court of said county, and attested by the seal of said court, and shall then be numbered and registered by the said clerk in the records of said county and endorsed by any two of said commissioners, with a memorandum as follows, viz: 'This bond is issued by the county of Marion, in the state of Texas, to pay for building a court house and jail for said county,' which said endorsement shall be dated and signed by said commissioners of any two of them, and without said endorsements said bonds shall be null and void. In case of a failure of any of the commissioners to accept this trust or to act as such, any two of said commissioners may appoint a third one by recording said appointment in the records of the district court of said county, but if no two of them shall act as such, then the county court shall appoint such number as may be required to fill the said commission.

Sec. 3. That when said bonds are signed and before they are issued the county or police court of said county shall levy and thereafter cause to be collected under general laws of this state, a poll tax of fifty cents on each male citizen of said county over twenty-one years of age, and a tax on all the real and personal property of the said county to raise a sum sufficient to pay the principal thereof, which sum when so collected shall be used for no other purpose than that for which the same is collected. That said tax shall be annually thereafter levied and collected and appropriated as aforesaid. That in the month of June of each year said county or police court shall advertise in a newspaper published in said county, that they will on the 1st day of July of said year be ready to pay off and take up the amount of said bonds, which the funds on hand may meet, and if the holder or holders of any of said bonds shall present the same for payment in a sum sufficient to take up the funds on hand, said court shall purchase or pay off such an amount of the same as they may be able to do with the funds in their possession collected and set apart for this purpose, and if none of said bonds are presented the said court shall select by drawing from the whole number of outstanding bonds a number of the same of an amount equal to the sum of money then on hand, and shall publish in said newspaper for one month, that they are ready to pay off and take up the amount of bonds aforesaid, and shall designate the number of bonds which have been drawn as aforesaid, and notify holder or holders thereof to deliver the same for payment, and if the said bonds designated as aforesaid be not presented and paid off they shall cease to bear interest forever thereafter.

The findings filed by the court were as follows:

Findings of Fact.

(a) Plaintiffs' petition was filed in the United States circuit court at Jefferson against defendant, Marion county on the . . . day of June, 1892, upon a large number of overdue coupons or obligations, cut from three kinds of bonds issued and sold by defendant, to with, coupons cut from what are known as 'Courthouse and jail bonds,' made June 30, 1873, bearing 8 per cent. interest, and to run twenty years from date, interest payable annually on July 1st of each year; also from coupons cut from a bond known as 'Marion county funding bond,' issued March 1, 1880, to become due March 1, 1900, and bearing 6 per cent. interest from date thereof, and payable March 1st and September 1st of each year; also coupons cut from a bond known as 'Marion county refunding bond,' issued . . . day of May, A.D. 1882, and to fall due July 1, 1902, and bearing interest payable July 1st and January 1st of each year. (b) That said defendant, under pleas and answers, denied the constitutional and legal right of Marion county to issue and sell the courthouse and jail bonds; that there was a failure of consideration; that fraud entered into the transaction; and that the bonds and coupons were void in the hand of the plaintiffs; and, as to the funding bonds, that the same in part was the funding of county registered scrip, and that there was fraud in this transaction, and an overissue to the extent of $ . . ., and these bonds were void to that extent. (c) Plaintiffs demurred, denied allegations of defendant, pleaded acquiescence and ratification by defendant, and estoppel. (d) The court finds that the courthouse and jail bonds, to the extent of seventy-five thousand dollars, were issued by defendant county June 30, 1873, bearing 8 per cent. interest, payable annually on July 1st of each year, and these bonds were issued under and by virtue of an act of the legislature approved February 22, 1873; that the said bonds were made and executed in strict conformity with said legislative act dated February 22, 1873; that at the January term of the commissioners' or county court of Marion county, 1874, an order was made and entered levying a tax to pay the interest and sinking fund of said bonds, and the taxes to pay the interest and sinking fund were collected until after 1876; that the funding bond was made and executed by defendant county under and by virtue of an act of the legislature approved March 25, 1879, and by orders of the commissioners' court of Marion county made in pursuance of said law, which authorized the issue thereof, and levied the tax for interest and sinking fund, and the said bonds funded indebtedness that existed prior to April 18, 1876, and included in part overdue coupons of the courthouse and jail bonds; that the greater part of the debt funded consisted of...