REPORTER,"vol; 41; ,
under section 27, (3342,) which, as already explained; is not applicaD1& to the relators' demand ·. It is not true, as counsel contend, that n' grant, of power to a municipal corporation toincur indebtedness necessarily carries with it an implication ,0Lp'Owertolevytaxes sufficient to meet,theobligation when due. It is 'certainly not so when, as in this case, ,the' general taxing power is the act under which the obligation was inGurred <lonfersa Of taxation; alElo limited. The questi<;m is fully covered by the decisions of the supreme court in U. S. v. Macon GJ.,99U. S. 582, andRallB OJ. Gourtv. U. S;,105 U. S. 733. Suchsituations are often met, by new loans, under a power granted to renew or to fund existing liabilities, and it may be that the defendant town has such power,--a question which does not arise here,-but that it has npUhepower of taxa.tion asserted by therelatoTs ,seems clear. ,The recital in the bond,:it is contended, constitutes an estoppel against thedenilil ofauthoritYi ,but if the recital purported to contain an assertion ofauthoritYtexcept as,given.in the, act referred to,-and it certainly does not purport to:. assert more,-it would be ineffective. Recitals in such instrnmentscan' be only in respect to, matters of fact, and not in respect to matters, of law, of which all alike are bound ,to take cognizance. Authority in SUPP!>Tt of this proposition need not be cited; certainly none can be cited against it. lt iSJlUgge&ted that in some of,theyears past the town has omitted to levy the special tax providedl for in the act of 1873, and that the relators have the right now to havEdhose omiEisions made good.! do not find that the recotd presents this question, but in the absence of a showing that the omissions .were not acquiesced in by the creditol'at the time, and timely steps taken to enforce literal compliance with the statute each year, which were defeated byreaspn of the" delays of the law "or other cauee beyond the controlQf the cre<:iitor, such remedy, as it seems to me, is not allowable, even if it could be had under any circumstances. The gelleral rule seems to be that:the:courts will compel, and can com" pel, the exercise of only the powers given by statute, and the express words of this statute arethatthe'special. tax" shall not in any year exceed 50 cents,," etc. i'aodso it would seem that ifa creditor in any Yflarpermits,-certainly,' I think,· if .heacquiesces in,-Mtn omission of the levy, there can be no recovery by mandamus of the lostground. Theobligatiolls upon which the relators obtained judgment contain a,. promise to.pny, h withoutl'elieffromthe valuation or.appraisement laws oftne state of Indiana/and on the strength of this the relators insist that they are entitled to have the tax. levies allowed by law, upon the same, valuation of property which. existed in the town when the bonds were issued. This expreSsion is the,one commonly in promissory notes and other ohligatitms made in Indiana, or with reference to the laws of .the state, whereby the debtor waives the benefit ofvallilation orappraisemant incase the obligation' shall be enforced by execution at law; and liS used in municipal bonds it bftS never been supposed, I think, that the expression had any other significance.' It may be that a sale of mu- .
NATIONAL BANK 'OF COMMBRCE V. TOWN' OF GRE.NADA.
nicipal property upon execution cannot be had, but; nevertheless, the clause is not without force in the bond, in case relief.should be sought against an indorser. Besides, by the same statutes which give corporate existence and powers to the town, and authorize the incurring of liabilities like those in judgment, .provision isp}ade for stated valuations of erty, upon which the tax levies are required to be ·and upon any other basis there is no authority for any levy whatever. It follows that the relators are not entled to relief in this action.
NATIONAL BANK OF CoMMERCE V.TOWN OF GRENADA.
January 16,189Q:) ,
. lJDder. Gen. St. ColO. § 25, statute on town ordinances, providing thatMlion ordinalicessball, as soon as may be after their passage. be recorded in a book kept for that. ,pu.i'pose..an.d b.6. authe.nticated. bY the sig na.t,ure.Qfth.6> P reSidmg to.moor ... . an ao;tioll 01). bonds. that, * * * and the. olerk, it is no defense in pursuance of, whiCh they. reclte that they were Issued was not,so recorded and authenticated,'. such acts are not required to give effeot to'the ordinance. . . ,:.;,. ..' ,,' . ' i .· , · '
. ,It is not necessary··to the v"Udity of such (lrdinance, thaqt'lIh(luld
in with tlle,lU',0V1siol).. of said 25, tbat bl-law!! of a ,genetai or permanent hature, and those impOSIng any fiile,'" * *. shall. be pUblished in Bome newepapel', , * . * * and it shall be deemed alluffioient'def'e11se to any' suit or, prosecution. for·sucbfine . It ... i * to D;1ade; aud s)1l'bb',lawsand *<Ull. e:J;plratlOnof fl,ve after they have been published, ,j as that provisio.n relates to penal enactments. . , ,,' . . '.' . .. .
'3. ElA.:n-BONA FroE ·lIOt,1JER .L:.REOITALB m BONDs.
,Where bonds recite'that they were issued for.the pUtpDs.e of funding the eltillty ing deb.t o.f, the C.it. ", . a nd t.he city is. auth.omed to is.,tWe alloh bondll1 it is. estoppEli1, . . bO'ltq. fide the antecedentlndebtedness . Under Gen. St. Colo. 84,19 et seq., the issueof.bonds to fund the.fioat-
'-. SAMll":'FuNriiNG DEBT-NOTICE TO WARiANT HOLDERS·
.inK' debt, of lJ!lunicipaliti.ea,and requiring ppbhoation of notice, to. warrant ho14ers,
ftJollure to the
the, prescribed notice not rend!lr the bonds warrants presented and aoceptedfOl"the- bonds.
. . .
Objection that the petition to fund the debt was not presented by 50 tax-payers, lIlI required by said aot,ie untenable :against a bO'ita fl,de holder, where the're.QQrds stI1-te tllat tJ;1e. .of qUali1led citizens hard petiti(med, and the (lrdi. the election the presentation of the petition '1)1 qulillfted .Where the ordinance for the election aho,ws tbat the questionto be l\ubmitWdwas wbethElr.the floating indebtedness should be funded, alldthe record of the canvassing' board states that ainil.jof.ity of theeleetors voted il). favor of funding debt, and there Is nothing of record to show that the notice of .election was defelltive,tbe bonds are not invalid, though the notioe published wSsifor,election on the propositiOI). to iilsU8water-worksbollde.. .
6. SAME-CURING DE11'ECTS.