State v. Sch. Dist. No. 50 of Barnes Cnty.

• Decision Date: 13 March 1909
• Parties: STATE v. SCHOOL DIST. NO. 50 OF BARNES COUNTY.
• Court: North Dakota Supreme Court

18 N.D. 616

120 N.W. 555

STATE

v.SCHOOL DIST. NO. 50 OF BARNES COUNTY.

Supreme Court of North Dakota.

March 13, 1909.

Syllabus by the Court.

When the settled statement of case in an action properly triable to a jury contains no proper specification of errors as required by Rev. Codes 1905, § 7058, the same must be disregarded by this court, as said section expressly provides that: “If no such specification is made, the statement shall be disregarded on motion for a new trial and on appeal.” No proper specification being found in the settled statement in this case, this court is restricted to a review of such errors, if any, as appear upon the face of the judgment roll proper.

The municipal bonds of defendant school district which are sued upon in this case were issued without first submitting to the electors of the school district the question of their issuance, and, furthermore, the school district had no power to issue the same by the express provisions of the act under which it is claimed they were issued as there were not 25 legal votes cast in such district at the preceding annual school election therein. Chapter 11, p. 39, Laws 1887, under which plaintiff contends such bonds were issued, is printed upon the back of the bonds, and section 9 thereof expressly provides that the question of refunding prior indebtedness shall be first submitted to a vote of the qualified electors of the district after giving certain notice therein prescribed of an election for such purpose, and that the proposition to issue such bonds must receive the affirmative votes of at least two-thirds of all the votes cast; also, that no school district in which less than 25 legal votes were cast at the annual school election next preceding the issuance of such bonds shall avail itself of the provisions of this act. Held, for these reasons, that such bonds are void.

The bonds in suit contain a recital to the effect that they are issued for the purpose of refunding present indebtedness “as authorized by act of the legislative assembly approved March 11, 1887” (Laws 1887, p. 39, c. 11), entitled “An act to provide for refunding the outstanding indebtedness which existed prior to July 30, 1886, of any incorporated board of education or school district in the territory of Dakota.”

Held, that such recital does not estop the school district from urging the defense, even as against an innocent purchaser, that such bonds were illegally issued.

Every purchaser of municipal bonds acquires and holds them charged with full notice of the possession, or absence, of power in the first instance on the part of the public corporation to issue them; and the question of the authority of a public corporation to issue negotiable bonds cannot be concluded by mere recitals, even as against innocent purchasers thereof.

The school district possessed no implied authority to issue such bonds on account of the fact that they were refunding bonds and issued in lieu of presumably valid obligations of the district, because by the express provisions of section 9 aforesaid their issuance was prohibited because of the fact that less than 25 legal votes were cast at the preceding annual school election.

Appeal from District Court, Barnes County; Edward T. Burke, Judge.

Action by the State of North Dakota against School District No. 50 of Barnes County. From a judgment for defendant and an order denying a new trial, plaintiff appeals. Affirmed.T. F. McCue, Atty. Gen., and Andrew Miller, Asst. Atty. Gen., for the State. Turner & Wright, for respondent.

FISK, J.

This litigation arose in the district court of Barnes county, and plaintiff's cause of action is based upon 13 alleged negotiable bonds claimed to have been issued by defendant school district on June 28, 1892, aggregating the sum of $5,700, payable to one Miller, or bearer, and purchased before maturity for value by plaintiff, which bonds, it is claimed, were issued in accordance with the provisions of an act of the legislative assembly of the territory of Dakota, approved March 11, 1887 (Laws 1887, p. 39, c. 11), entitled “An act to provide for the refunding of the outstanding indebtedness which existed prior to July 30, 1886, of any incorporated board of education or school district in the territory of Dakota”; a copy of such act being printed on the back of such bonds. Among other defenses relied upon, defendant denies that the alleged bonds were issued to refund outstanding indebtedness of the defendant, and alleges that they were signed by the president of the defendant, and by another person pretending to be the clerk thereof, fraudulently and unlawfully, and with no consideration whatever received by the defendant school district therefor. The answer further alleges that no election was had for the purpose of determining the question of the issuance of said bonds, and that the same were signed and delivered without the authority either of the voters of the district as expressed at an election or by resolution or other expression of the board of directors of the district, and it is further alleged by defendant that it was wholly without authority to issue said bonds for the reason that at the annual school election next preceding the pretended issuance thereof less than 25 legal votes were cast. A jury was waived, and, at the close of the testimony, the trial court, among other things, found as a fact the following: “That each of said bonds purports on its face to have been issued by school district No. 50, Barnes county, state of North Dakota, for the purpose of redeeming present indebtedness as authorized by act of the legislative assembly approved March 18, 1887, entitled ‘An act to provide for refunding the outstanding indebtedness which existed prior to July 30, 1886, of any incorporated board of education or school district in the territory of Dakota.’ That a copy of said act is printed in full on the back of each of said bonds. The court further finds as a matter of fact that at the time of the purported execution of the bonds, to wit, on January 28, 1892, James E. Walks, who signed his name to said bonds as clerk of the defendant, did not reside within the territorial limits of the defendant, and did not at any time, either before or subsequent to that date, reside within the territorial limits of the defendant school district. * * * The court further finds that the question of issuing said bonds or of refunding the then existing indebtedness of the defendant school district, if any, was never submitted to a vote of the qualified electors of said school district. The court finds that less than 25 legal votes were cast at the annual school election next preceding the issuance of said bonds, and that less than 25 legal votes were cast at every school election held in said school district prior to the 28th day of January, 1892.”

The trial court also made conclusions of law as follows:

“(1) The court holds as a matter of law that the above-named James E. Walks was not the clerk of the defendant nor authorized to act as such at the time of the purported issuance of said bonds, nor at any time theretofore or thereafter.

(2) That said bonds are wholly void as against the defendant upon the ground that the question of their issuance or of refunding the indebtedness of the district was not submitted to a vote of the qualified electors, and upon the further ground that the said school district was wholly without authority to issue said bonds in any event because of the fact that less than 25 legal votes were cast at the preceding annual election held therein.”

Pursuant to such findings and conclusions, judgment was ordered and entered in defendant's favor dismissing the action and for costs. In due time a statement of case was settled, and a motion for a new trial was made and denied, and this appeal is from the judgment and also from the order denying such motion.

In disposing of this appeal, we are not at liberty to review any alleged error, unless it appears upon the face of the judgment roll proper. The statement of the case as settled contains no proper specification of errors of law occurring at the trial nor of the particulars in which it is claimed that the evidence is insufficient to sustain the findings. That such omission is fatal has repeatedly been held by this court. The statute (section 7058, Rev. Codes 1905) is explicit in requiring such specification of particulars to be incorporated in the statement, and that, “if no such specification is made, the...