Travis County v. King Iron Bridge & Mfg. Co.

• Decision Date: 14 March 1899
• Docket Number: 795.
• Citation: 92 F. 690
• Parties: TRAVIS COUNTY v. KING IRON BRIDGE & MANUFACTURING CO. [1]
• Court: U.S. Court of Appeals — Fifth Circuit

92 F. 690

TRAVIS COUNTY v. KING IRON BRIDGE & MANUFACTURING CO. ^[1]

No. 795.

United States Court of Appeals, Fifth Circuit.

March 14, 1899

The petition for certiorari alleges that the cou brought suit in the United States circuit court for the Western district of Texas against the King Iron Bridge & Manufacturing Company upon a certain indemnity bond for $47,000, executed and delivered by the bridge company to the county of Travis. The bond recited that on July 3, 1888, the bridge company entered into a contract with the representatives of the county of Travis to build a certain bridge across the Colorado river at Montopolis Ford, in the county of Travis, for the sum of $47,000, payable in 6 per cent. bonds of the county; $25,000 in said bonds having been issued to the bridge company leaving a balance of $22,000 unpaid. The indemnity bond further recited that a question had arisen as to the correct high-water mark of the year 1869 (the contract requiring the floor or bed of the bridge to be five feet above the highest flood level of that year). The indemnity bond recited that provided the county's representatives should issue and deliver to the bridge company the remaining bonds, amounting to $22,000, with certain interest, the bridge company guarantied the bridge 'for the term of ten years against the flood level of A.D. 1869, and, if the bridge continue to stand against said flood level of 1869 for a term of ten years,' the bond to be void; otherwise to remain in full force. The petition for certiorari proceeds to allege that in accordance with the indemnity bond the county executed and delivered to the bridge company the remaining 22 county bonds, amounting to $22,000, mentioned in the indemnity bond and that within about one month thereafter two spans of the bridge washed away, and several piers were damaged, in a flood in the Colorado river that did not rise as high, by several feet, as the flood level of 1869,-- the terms of the indemnity bond being thus broken, and the bridge company made liable to the county; that the that the bridge company refused to either pay anything or to repair the bridge, and the county was compelled to repair the bridge at a cost of $23, 910.50. The county brought suit for the amount of the indemnity bond, and, in the alternative, for the actual outlay in repairing the bridge. The bridge company set up as a defense, among other matters, that the indemnity bond sued upon was without good and valuable consideration in law, and was, therefore, of no binding force against it. By stipulation, the cause was tried by the judge sitting in the United States circuit court without a jury. The judge's conclusions of fact show: That the contract for the building of the bridge was entered into on July 3, 1888, the price being $47,000, to be paid in county bonds. That on May 13 1889, the bridge company tendered the bridge as being completed, and demanded payment in county bonds of the remaining $22,000 due on the bridge, 25 bonds of $1,000 each having theretofore been delivered. That the representatives of the county refused to accept the bridge, upon the ground that it was not as high as required by the contract. That a controversy thus arose, which was finally adjusted on July 3 1889. The controversy as to the height of the bridge was compromised by the execution on July 12, 1889, of the indemnity bond sued on. That shortly afterwards the county delivered 22 of its bonds of $1,000 each to the bridge company. That the bridge company sold the bonds, but the amount realized from them was not shown. That neither before the issuance of these bonds, nor at any reasonable time afterwards, did the county levy any tax, or make any provision whatever, for the payment of the interest on the bonds, or to provide a sinking fund for the payment of the principal. As conclusions of law the judge found that the 22 county bonds mentioned in the contract of guaranty of July 12, 1889, are null and void, as having been issued contrary to the constitution and laws of the state of Texas, and that, therefore, they are not binding on the county; that there was no consideration for the guaranty entered into by the bridge company, and such contract is void, and not binding on the parties. The petition for certiorari proceeds to show that on March 19, 1896, one Albert Wade brought suit in the United States circuit court for the Western district of Texas against the county of Travis on interest coupons attached to the bonds issued by the county in accordance with the indemnity bond of July 12, 1889, above mentioned. The suit was decided against Wade (72 F. 985), the judgment being, on writ of error, affirmed by this court (26 C.C.A. 589, 81 F. 742) on June 16, 1897. The petition for certiorari avers that the county of Travis was defeated in its suit against the bridge company, and was successful in defending the suit brought by Wade because of the construction then placed on the constitution of Texas by the highest court of that state, which construction was followed by the federal courts. The petition alleges that subsequently, on January 10, 1898, the supreme court of Texas, in the case of Mitchell Co. v. City Nat. Bank of Paducah, 43 S.W. 880, rendered a decision, the effect of which, as contended, is to declare county bonds, such as the bonds issued to the bridge company by the county of Travis, to be lawful and binding; that after the decision of the supreme court of Texas, Wade, who, as already stated, had been defeated in his suit on the interest coupons, applied to the supreme court of the United States for a certiorari to this court, upon the ground that since this court affirmed the judgment against him the supreme court of Texas had rendered the decision just mentioned; that Wade's application to the supreme court of the United States for certiorari was granted in March, 1898, and his suit is now pending in that court. The petitioner, the county of Travis, evidently in anticipation of a charge of laches on its part in not suing out a writ of error from this court in its suit against the bridge company, and in allowing a great lapse of time before applying for certiorari, alleges that the United States circuit court 'followed, and was bound in comity and the custom and practice of federal courts to follow, and jurisprudence of the supreme court of the state of Texas on the question at issue; and that petitioner, recognizing that the decisions of the Texas supreme court were, in effect, as held by the circuit court in this case, and further recognizing that the circuit court of appeals and the supreme court of the United States would likewise consider themselves bound to follow those decisions of the state supreme court, construing a provision of the state constitution, submitted to the decision of the circuit court, without seeking to have the same reviewed by the federal appellate courts. That petitioner could not have obtained relief in this court is conclusively shown by every decision on the same question since the judgment of the circuit court in this case, not only by the said circuit court and the Texas supreme court, * * * but also by this court'; citing numerous cases. The petitioner alleges that it would be a great hardship, brought about by no laches or negligence on its part, if Wade should succeed in his suit against it, and yet that it should have no relief against the bridge company. The petitioner further states: 'That, if...