Town of Decatur v. Brogan
| Citation | 185 So. 809,184 Miss. 402 |
| Decision Date | 30 January 1939 |
| Docket Number | 33545 |
| Court | United States State Supreme Court of Mississippi |
| Parties | TOWN OF DECATUR v. BROGAN |
APPEAL from the circuit court of Newton county HON. D. M. ANDERSON Judge.
Suit by Andrew Brogan against the Town of Decatur to recover the amount of water system bonds with accrued interest. Judgment for plaintiff, and defendant appeals. Affirmed.
Affirmed.
R. H Day and Stone & Stone, all of Decatur, for appellant.
A void judgment or decree may be assailed in any court and in any action.
Pease & Dwyer Co. v. Somers Plant Co., 130, Miss. 147; Lbr. Mfg. Co. v. Quitman County, 166 Miss. 396; Smith v. Deas, 158 Miss. 111.
All persons buying municipal bonds are presumed to know the law are presumed to know that the authority of a municipality to issue bonds at all is an authority delegated by the legislature; and they are presumed to know the conditions imposed upon the mayor and aldermen to make the bonds legal. They are presumed to know that the records of the mayor and aldermen of the Town of Decatur will reflect what authority, if any, the board had to issue the bonds sued on. Can they rely upon the recitals in the bonds signed by the two officers or agents of the municipality, and refuse to look to the municipal minutes where the law requires a record to be kept showing the facts disclosing the truth or falsity of the recitals in the bonds? We concede that an individual would be estopped to deny recitals in his contract upon which he received money and would be required to pay. But the board of a municipality is contracting for the taxpayers to pay the bonds out of their own funds; and the statute provides that this cannot be done without statutory notice to them and an opportunity for them to act thereon.
10 R. C. L. 706, sec. 34; Sykes v. Mayor of Columbus, 55 Miss. 115; Katzenberger v. City of Aberdeen, 30 L.Ed. 911.
A municipal board has no authority to bind the taxpayers to the payment of an issue of bonds without first giving to such taxpayers notice of its intention to issue bonds, and an opportunity to be heard. The board's delegated authority is conditioned upon this, and we insist that the condition is a jurisdictional one. We further insist that the attempted ratification of said bonds is without effect because the Chancellor had no jurisdiction of either the subject matter or the parties sought to be required to pay the bonds, when the decree was rendered.
W. M. Hutto, of Waynesboro, for appellee.
When the Chancery Court enters an order validating bonds for a county, municipality or school district, and if no appeal taken or if the Supreme Court affirms the decree of the Chancellor, the validity of bonds so issued shall be forever conclusive against the county, municipality or school district, and shall never be called into question in any court in this State. In our opinion Section 314, Chapter 10, Laws of 1930 settles this case insofar as between the appellee and the appellant in all the courts of Mississippi.
Where bonds issued by county, municipality or school district, even though without authority, under the law, are binding and valid and without attack as to validity.
Parker v. Grenada County, 125 Miss. 617, 88 So. 172.
No inquiry can be made into proceedings to validate bonds, where certain lands were left out by the board of supervisors.
Prentiss County v. Holley, 141 Miss. 432, 106 So. 644.
Where a void recital in a municipal bond is made, said void recital does not render the municipal bond void.
Pontotoc v. Fulton, 79 Miss. 511, 31 So. 102; Lexington v. Union National Bank, 75 Miss. 1, 22 So. 291.
Bona fide holders of municipal bonds, regular on their face, are protected against informalities and irregularities in proceedings authorized in the issuance of the bonds from mistakes made by the municipal authorities.
Green v. Rienzi, 87 Miss. 463, 40 So. 17.
We submit that all that the appellant are complaining of in this case is mere mistakes, informalities and irregularities, not jurisdictional, made by the Mayor and Board of Aldermen of the Town of Decatur in the issuance of the bonds sued on in this case, a wrong if any made, made by themselves, perpetrated upon the public, in which they are now trying to take advantage of, and the above case, decided by this court, clearly prohibits them from taking advantage of their own mistakes, to do otherwise would be a travesty upon justice.
Where the former decree of the Chancery Court, following the pleadings and the proof, and adjudicating all matters in litigation, includes all matters, that might and should have been pleaded and proven, precludes the defendants from attacking the former decree, in a subsequent proceeding, and if the matters complained of had not been pleaded, considered and adjudicated by the lower court, it should have been pleaded and adjudicated, and is res adjudicata. This is the well established rule of law in Mississippi.
Vinson v. Colonel & U.S. Mfg. Co., 76 So. 827.
It was the business of the town of Decatur to see to it that all things necessary to be done in the issuance of the bonds should have been done and all things necessary adjudicated by the Chancery Court, and they now cannot be heard to collaterally attack, the decree, validating the bonds in question. The matter in issue in the first decree is concluded and is res adjudicata.
Sculley v. Lowenstein, 56 Miss. 652.
The matters and things involved in the record in the former case and being so involved might have been liftgated between the interested parties and is res adjudicata.
Hubbard v. Flynt, 58 Miss. 266; 38 Wisc. 651.
Under the doctrine of estoppel the defendant will be prohibited to take advantage of...
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