HUE'Y II. lIfACONCOUN1'Y.
JONES V. SAME.
(OVrcuit Oourt, E. D. Mi8souri, N. D. May '28,1888.)
RAILROAD VARIANCE. BONDS-AcTlONSON BONDS-PLEADING-
Where the proof shows that the county court had power to issue the bonds under any law, a variance between the allegations and the proof. as to the particular law under which the bonds were issued, is immaterial; it being the duty of the court to allow the to bl' amended to conform to the proof. Where a county issues railroad bonds, the coupons thereto attached are sub· jectto the same period of limitation as the bonds. and. that time having elapsed from the date of the maturity of the coupons, they are barred, al· though not detached from the bonds.
SAME-INTEREST ON COUPONS. OF ACTION.
Ooupons bear interest from the date of their maturity; and in an aption thereon in Missouri coupons payable out of the state will be allowed the same. rate of interest as those payable in the state, no proof of the rate of interest in the foreign state being offered. ,
At Law. Macon county, and by Joseph E, Action by John E. Huey Jones against same, upon railroad bonds and coupons issued by defendant. Sanders Bowers, for plaintiffs. . R. G. Mitchell and Dysart, for defendant. ,THAY];R, J. In these cases plaintiffs are entitled to a judgment on the bonds by them severally sued upon, and on all the coupons except coupons Nos. 6, 7,and 8, attached to each of bonds Nos. 3, 12, 13 and 14. 1. The only defense aflecting an of the causes of·action is that of a' variance between the proof and allegations. It is claimed that the respective plaintiffs have alleged that the bonds in suit were issued uooer section 17 of the general railroad law,in force in the year 1866, whereas it is contended that the proof shows that the bonds were issued under the thirteenth section of a special act, approved February 20, 1865, to incorporate the Missouri & Mississippi Railroad. The defense cannot. prevail, for two reasons: First. Because there is, no variance. The dec;. laration does not aver that the bonds were issued under the general railroad law. The allegation is that "plaintifls bought the bonds in relianoo upon that law, and that it was in force when the bonds were issued." Other portions of the declaration, however, show that the bonds were issued under the special act of February 20, Second. But even if there was a 'variance of the kind,supposed , (that is to say, a failure to state accurately the particular law under which the county court deriVed' v.35F.no.7 -31
its power to make the subscription,) variance could not be regarded as material. If the proof showed (as it does in this case) that power existed under any law to make the subscription and issue the bonds, it would be the duty of the court to allow the pleadings to be amended to conform to the"proof.. Suchlellve is necessar.y , however, in this case, the declaratIon in effect shows that the county court acted under the speciallaw of February 20, 1'865. To cover any possible doubt on the subject, the court. will insert a f;inding in the judgment that the bonds were issued ,under the specIal 'act last mentioned. Such is the proof, and such is also, the allegation. , 2. The plea of the statute of limitations in the elise of Huey v. Macon 9<Junty iii! sustained as to coupons 6, 7, and 8, maturing February 1st in the years 1875,1876, and 1877. on each ,of bonds Nos. 3, 12, 13, and 14. JUdgment for defendant will therefore be entered on the counts embracing those' coupons. It is settled by the decision in Amy v. Dubuque, 98 U. S. 470, that the statute ofHmitations begins to run against coupons of muniCipal bonds ftom tpe 'time they mature, although they remain to the bonds., IJ,ltpe two cases of Oity v. Lamson, 9 Wall. 482, and City of Lexington v. Butler, 14 Wall. 296, it was held that So suit on will be barreid by the same period that bars an action o1\thebonds't(j :Which It was ,not held in either of those cases, however, (as ,defendant's counsel seems to suppose,) that the statute of limitations is suspended, in so far as' it' affects coupons, and will not run until the bond matures. That view was expressly disapproved inClarlvv. Iowa Oity, WaJl. 583, and Amy v. Dubuque, 98 U. 474 r same,periQdof ti.me has elapsed after the maturity or So coupon th'atwill bar an action on the bond, the coupon is barred., In this instance 10 years have elapsed since the maturity of some of the coupons, and, as that period is sufficient to bar an action on the bonds, the coupons above mentionea are barred. 3. The questions l'elatingto interest, which have been disc:ussed in these cases, are equally well settled. Couponsbearinterest from the day when they are payable, even though no demand for payment is made on thll-t day. Gelpckev. Dubuque, 1 Wall. 206; Aurora Cityv. West,7 Wall. 105; Tuwn.of.GflMav. Woodruff, 92U. S. 502; Walnut v. Wade, 103 U. So ,696. Theoontract evidenced by a coupon is so far separate from the CQntract evidenced by the bond to ,which it is attached, that it may be Qatred by limitationbefore·thebond matures. The holder of such con.. tracts should accordingly be allowed interest for money due thereon from thtttime it becomes payable. In making up the judgment, interest will be allowed on allthe coupons from maturity to the date of judgment, at the rate of.6 per cent. per annum, and the judgment will thereafter bear interest at thesatne rate. No distinction in this regard will be made between coupons payable,in NewY9rkand those payable in St. Louis, as the rate ofint.,rest in Ne,v York was not proven. Interest on the bonds will be computed after maturity at the same rate borne before maturity, and thejudgment will bear the same rate of interest from the date of entry
UNITED ST&'l'ES·. v.,MA.CON· OOtirNTY COURT.
MACON 90UNTY COURT.
Oourt, E.: J). Missouri,
R.ILROAD COMP.NIES-MuNICIPAL DAMUl!l TO LEVY SPECIAL TAX.
Ma.y 28, 1888.
ON ANNUAL TAX-MANC
ThoUKh a judgment has been obtained on coupons of county bonds issued under 13 of of februlIry20, 1861>, incorporating the Mis'souri& Mississippi HA,i1l'oRd, which provided that the amount of the special tax to be levied ID any line year for their payment should not exceed onetwentieth of one per cent.; mandamus will not lie to compel the levy a higher special tax to pay such judgment, as tbe holders of sucllllonds !!ore chargeable with notice of the provisions of the statute underwl1ich they are issued. ' , ,
Original Proceeding in Mandam'U8. Sanders Bowers, for, R. G. Mitchell, Pros. Atty., and Guthrie
Dysart, for respondents.
THAYER, J. This a mandamus proceeding to compel the respondents to levy a special tax to paya judgruent.recoveredagainst Macon county, in the central division of the Western district of Missouri, on November 25.1884, in the sum of $8,974.39. The case has been submitted in this district on, the and On a stipulation conceding ,certain facts. It will suffice to say that from the pleadings and stipulation it appears that the judgment referred to was baEed on coupons of bopds issued by Macon county pursuant to power conferred by the thirteenth section of an act passed on February 20, 1865, to incorporate the Missouri & Mississippi Railroad. That section (as is well known) authorized the issue of bonds without a popular vote, but limited the. amount of the special tax that might be levied in anyone year for their payment to one-twentieth of one per cent. It is conceded that Macon county has thus far levied one-twentieth of (lne per cent. annually, to meet the bonds that were issued under the act in question, and that the proceeds ofthe tax have been properly applied to the payment of the interest on the bonds. Upon this state of facts it is obvious that the case is controlled by the decision in the case of U. S. v. Macon (h'i 99 U. S. 589, and the peremptory writ prayed for must be refused. It was held in that case (following the general rule on t1}e subject) that pur«hasers of municipal bonds are chargeable with notice of the statute under which they are issued. It was furthermore held that if the statute under which bonds are issued limits the rate of special taxation for their payment, the bondholder cannot by mandam'U8enforce the levy of a higher special tax. That decision determines the present controversy. In the case of U. S. v. Olark Co., 96 U. S. 211, it was held that bonds issued under the thirteenth section of the act to incorporate the Missouri & Mississippi Railroad Company are debts of the county, as fully as any other liabilities, and that for any balance due on t1W same after the special tax of of one per cent. is exhausted,. the holder is entitled to a warrant payable out of the funds of theoounty