RECTOR
District Judge.
In this
case the plaintiff sues the defendant on 18 coupons, of $80
each, detached from bonds 6, 7, and 8, of $1,000 each, issued
by Nolan county on or about April 10, 1882, and delivered to
Martin, Byrne & Johnson. Plaintiff also sues, in this case
on 24 coupons, of $80 each, detached from bonds 1, 2, 3, and
4, issued by Nolan county, and delivered to Mathews &
Whitaker, each of said bonds calling for $1,000, and dated
April 10, 1882. Plaintiff also sues on 18 coupons, of $80
each, detached from bonds 24, 25, and 26, for $1,000 each
issued by Nolan county on June 21, 1882, and delivered to
Wernse & Diechman. Plaintiff also sues on 6 coupons of $80
each detached from bond No. 27, issued by Nolan county, dated
June 21, 1882, for the sum of $1,000, and delivered to
Flippen, Adoue & Lobit.
The
defendant answered by a general denial, and further pleads
that, before any of said bonds were executed or delivered,
defendant had already created, and there were then existing
and outstanding against it, other debts fully equal to its
lawful power to make debts. Defendant charges that, among the
debts so existing and outstanding against it, are four bonds,
of $1,000 each, issued on the 5th day of April, 1882, to
Martin, Byrne & Johnson, numbers 1 to 4, inclusive, and now
owned by the state of Texas, and five bonds, for the sum of
$1,000 each, numbered 10, 11, 12, 13, and 14, referred to in
the orders of the commissioners' court of said county, of
the dates February 18, 1882, March 22, 1882, and April 15,
1882, and that said five bonds are now owned by the state of
Texas. That all of said nine bonds were void in their
inception, but they were validated from their original issue,
in favor of the state of Texas, by the act of the legislature
of said state approved the 25th day of May, 1885. Then
defendant says the total assessed value of its taxable
property, as shown by its assessment rolls, was as follows:
For the year 1881, $361,770; for the year 1882, $908,276;
for 1883, $1,684,615; for 1884, $1,953,755; for 1885,
$1,855,278.
2. A
jury was waived. The agreed statement of facts in this case
is as follows:
'Quaker City National Nank v. Nolan County.
'Now comes the Quaker City National Bank, plaintiff, by
Williams & Butts, its attorneys, and Nolan county, defendant,
by Leake, Henry, Miller & Reeves and Cowan & Fisher, its
attorneys, and, for the purpose of a trial of the
above-stated cause, agree to the following facts, to wit:
'(1) The county of Nolan, defendant, was organized in
January, (10th,) 1881, and thereupon became, and ever since
hath remained, and still is, a body corporate and politic,
and the first term of its commissioners' court was held
on the 28th day of January, 1881.
'(2) The total assessed value of property, as assessed
for the county of Nolan for the year 1881, was $361,770.00;
for the year 1882, $908,276.00; for the year 1883,
$1,684,615.00; for the year 1884, $1,953,755.00; for the year
1885, $1,855,278.00; for the year 1886, $1,756,814.00; and
for the year 1887, $1,757,061.00.
'(3) By statute law, in force in Texas from 1876 to the
present time, the assessment of all property for taxation in
the several counties is required to be made by the assessor
between the 1st day of January and the 1st day of June of the
current year, with reference to the quantity held or owned on
the 1st day of January in the year for which the property is
required to be listed or rendered. The assessor is required
to submit all lists of property rendered to him prior to the
first Monday in June to the board of equalization, which is
composed of the county commissioners' court of his
county, on the first Monday in June, or as soon thereafter as
practicable, for their inspection, approval, and correction,
or equalization, and, after that board shall have returned
the approved lists to the assessor, he shall then make out
his rolls in triplicate, one of which is required to be filed
in the county clerk's office, and one in the office of
the state comptroller, and one to be delivered to the county
collector, which must be done on or before the 1st day of
October of the year, if possible, at which time the
collection of taxes begins.
'(4) On February 14, 1881, the county commissioners'
court of Nolan county entered an order of record, levying a
tax of one-fourth of one per centum for courthouse purposes,
and a tax of one-fourth of one per centum for jail purposes.
At this time Nolan county owed no courthouse debt.
'(5) On May 11, 1881, the county commissioners' court
of Nolan county ordered that bids to build a jail, to cost
not exceeding $10,000.00, be advertised for. On May 11, 1881,
the county commissioners' court advertised for bids to
build a jail, not to exceed in cost $10,000.00; and on June
14, 1881, plans of Martin, Byrne & Johnson for the said jail
were adopted, and contract awarded them, at a cost of
$8,755.00, to be paid in coupon bonds of the county, and, on
October 4, 1881, a committee was appointed by the county
commissioners' court of Nolan county to see that the
contract for jail and courthouse combined was properly
carried out.
'(6) On April 5, 1882, an order was entered on the
minutes of the county commissioners' court, receiving the
jail, as built by Martin, Byrne & Johnson, and authorizing
the county judge (who was Wm. Barnett) to receive the keys
and settle for the same. Some time after this, about April
10, 1882, Wm. Barnett, as county judge, and W. C. Johnson, as
county clerk, issued nine bonds in the name of said county,
eight of them for the sum of one thousand dollars, and the
other for the sum of seven hundred and fifty-five dollars,
and delivered the said bonds to the contractors, Martin,
Byrne & Johnson, in payment for the said jail. There is no
order on the minutes of the commissioners' court of said
county, authorizing the county judge and county clerk, or any
one else, to issue and deliver the said bonds, unless the
above, in connection with the orders mentioned in the fifth
clause of this agreement, is construed to be such authority,
which is a question left open, to be decided by the court on
the trial of this cause. The bonds first mentioned in
plaintiff's petition as numbers 6, 7, and 8, being three
of these bonds. Following is a copy of one of said bonds, all
of which are of the same tenor
and effect, and contain the same recitals, save as to amount,
date, time of maturity, and serial number:
"United States of America.
"No. 5.
$1,000.00.
"Courthouse Coupon Bond.
"Nolan County, State of Texas.
"Know all men by these presents, that the county of
Nolan, in the state of Texas, acknowledges itself indebted
unto Martin, Byrne & Johnson, or bearer, in the sum of one
thousand dollars lawful money of the United States of
America, which sum the said county promises to pay, for value
received, at Sweetwater, Nolan county, Texas, ten years after
the date hereof, but redeemable at any time at the pleasure
of said county, together with interest thereon at the rate of
eight per centum per annum, payable annually, on the 10th day
of April in each year, on presentation and surrender of
coupons hereto attached, as they severally become due and
payable. This bond is issued in accordance with the
provisions of an act of the legislature of the state of
Texas, entitled 'An act authorizing the county
commissioners' court of the several counties of this
state to issue bonds for the erection of a courthouse, and to
levy a tax to pay for the same,' approved February 21st,
1879.
"In testimony whereof, I hereunto affix my official
signature, and official seal of said county, at Sweetwater,
Texas, this the 1st day of December, A. D. 1881.
William Barnett,
"Judge County Court, Nolan County, Texas.
"[Seal of Commissioners' Court.]
"Countersigned:
"W. C. Johnson, Clerk County Court, Nolan County, Texas.
"Registered 10th day of January, A. D. 1882.
"J. H. Fowler, County Treasurer, Nolan County
Texas.'
'(7) On February 18, 1882, the county commissioners'
court of Nolan county entered an order of record that a
courthouse should be built at the county seat, during the
year 1882, at a cost of not less than $20,000.00, and that
$20,000.00, in 15-year coupon bonds, bearing interest at the
rate of eight per centum per annum, be issued, and at once
sold, and the proceeds applied to the building of the
courthouse, said bonds to be redeemable at the pleasure of
the county at any time after ten years from date, and J. W.
Posey was appointed the agent of the county to sell said
bonds at a commission of ten per cent. for his services,
which commissions were to cover all costs of lithographing
and disposing of said bonds.
'(8) On March 29, 1882, it was ordered by said court that
the cost of the courthouse should not exceed $23,000.00, and
said Posey was continued as the agent of the county to sell
the bonds, authorized to fill in the blank spaces with the
names of the purchasers, and ten per cent. commissions
awarded him, which commissions were to cover all discounts
and cost of selling, as well as preparing, the bonds. On
April 15, 1882, the county commissioners' court amended
the order of February 18, 1882, so as to make the bonds
redeemable at the pleasure of the county at any time after
ten years, which redeemable clause has been interlined in the
previous order also. The $20,000.00 15-year, 8 per cent.
coupon bonds, that had been printed under the original order,
were returned and destroyed, and it was ordered that 20 8 per
cent. coupon bonds, of $1,000.00 each, be lithographed and
substituted
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