S. L. Oarpenter, ,for plaintiff. Alvin Ma,rsh, for defendant.
Action of debt.
, PHIUPS, J. This is an action of debt to recover on interest coupons attach,ed to' fqnding bonds issued by the defendant in 1887. The bonds are p'ayable at the National Park Bank, New York,·fifteen years after date, or after five years, at the pleasure of the city; interest, 8 percent. The bonds and coupons were duly signed.by the mayor and clerk, and duly registered and recorded with the state auditor and the town treasurer. , A jury being waived, the cause was submitted for hearing before the court on thefollowing agreeci statement of facts, in their abbreviated sub. stance, .', , ' ,' ".
The town of Grenada was, incorporated as, a municipal.corporation in the month of July, 18H7. On the 1st day of October, 1887, Ii 'petition of 50 citizens and electors of the town was to the board of. trustees,praying . ffi>I: Jbe 3\PPJ"Qpriation of, a sum; not to exceed'$36,000, for pro6uhng water fol"' domestlC;purposes. ,At of the board on the 8th dayqf.Qctober, 1887, oomation it was ordered that an appropriation of the sum of $36,000 be made for of supplying the town with waterfor domestic purposes. On the .6,ql;l.Jay of, October, 1887, an waspltssed by the Mard numbered 10, concerning water-works, which prOVided, in substance. that, for the pur. pose of supplying the city with water suitable for'i!'l'igation, domestic, and , olhetpurpo'!Jes, a reservoir of not less than,l,Ooo barrels' capacity shall be built, \vatet supplied, therefrom from' the Arkansl;ls river, and that scrip. be issued to pay therefor. not to exceed $36,000, passed November 12, 1887, signed by the mayor,and attosted by the recorder, and duly published in the Grenadl':Exponent. At said meeting of one Thomas Doak submitted apl'opositiOll to construct water-works for the town for tpe sum of $36,000, upon condition that the board would first issue wa,rrants of the town, and> deliver the same to him, to said amount, to enable him to raise funds. upon sale of the same" for the purpose of constructing said works. . The proposition was accepted by the town, and warrants the amount of $36,000were issued and delivered to Doak. On the 1000h day of October, 1887, a petitionof 50'qualified electors, alleging that they had paid taxes the precedingyear;waspresl1nted to the board, requesting that a notice be published for ao days to holders' of wurrants to present and e'llChange the same for bonds. of said town, under the provisions of the act of the legislature entitled" An act to enable the several.towns and cities of the state to .fund their floating indebtedhess. .. In the recorded proceedings of the board the proper notice oeen given, duly certifle'dby Ed. Wal'!Jh,',the:cityclerk. It ill admitted that this record entry is false, as no such notice was in fact pubHshed. Ontbe'4th day of November. A. D.1887, saidDoak entered into a written a,greeJli!:lnt' with said board of trustees for the construction of said water-works, in follows: 'The said,DOak agreed to build a reservoir with the capacity Qf.J1.000barrels of water, from which water might be used for domestic. purposE's; said reservoir to be supplied with water through a,ditch to extend froll} ,the Arkansas river at some sllitable,point wE'sterly of said city to said "That saidc'ltt of Grenada shall 'pay and deliver to said Doak, his. ,heirs or, assigns, its legally. illsued scrip, to the full amount of$36,OOO. *, * III Said city shall also secure and grant to said Doak, his heirs or assigns, the:
NATIONAL BANK OF COMMERCE fl. TOWN OF GRENADA.
right of way through said city limits free of all expense to said Doak, so that in digging or constructing said ditch through said city said Doak, " etc., "shall be at no expense, either for right of way, damages, bridges, or any otht'r expense, except excavation. Said city hereby agrees to pay all expense, damages, or other demands made on said Doak, " etc., "in the digging or construction of said ditch through said city, except engineering and excavating. Said city shall also furnish with good and sufficient title to said Doak, his heirs or assigns, suitable lands, on or adjacent to the ditch, for the uses and purpose of a reservoir. Said Doak," etc., "shall locate said ditch in and through said city wherever he may choose, except said ditch shall be on or along some street, streets. alley,. or alleys. Said city shall at once proceed to refund said issued scrip into refunding bonds, bearing interest at eight per cent., payable semi-annually, and deliver same to said Doak, his heirs or assigns. Said Doak, his heil"s or assigns, to" begin work as required by law, and complete the same as soon as it is practicable so to do." . On the 7th day of November, 1887, a petition containing the same names as the former petition was presented to the board, petitioning it to submit to ·a vote a propositiOJl to fund $36,000 of the city indebtedness with 8 per cent. funding bonds. On the 10th day of November, 1887,Doak presented, at a meeting of the board, the $36,000 of warrants, and offering to accept in lieu thereof the funding bonds of the town, which was accepted. On the 11th of November, 1887, the board adopted the following ordinance: Section 1 directs the submission to the. qualified electors of the town to vote on the quesissue bonds thereof under the protion whether the Loard of said town visions of an act of the legislature of the state of Colorado entitled "An act to enable the several cities and. towns of the state to fund their floating in. debtedness," in exchange at par for warrants of said town issued prior to date of the fil"st publication of the notice heretofore published in this behalf, in accordance with the petition heretofore presented to s!ild board, etc.;· such question to be submittecl at the special election,at the usual place of holding elections, on t.he 12th da,J of December, 1887. Section 3 prOVided that if, upon the return of the canvass of the vote of said election, according to law, it should be found that a majority onhe electors who shall have pai\ltaxes upon propltyassessed to them insaid·town the preceding vear shall have voted in fathen the vor of said proposition, and the result of said election be so maYO!; and. clerk of said town were authorized and directed to exchange bonds of said to",n to the amount $36,000. and no more, at par, for and on account of certain warrants to the amount heretofore issued to one Thomas Doak, in payment for. the construction and operation of water-works within said town, as per the ordinance heretofore passed in that behalf. Section 4 directed that notice of said election be published according to law. This ordinance was not recorded in the ol"dinance book, nor signed by the mayor and clerk, nor published in any paper. It is admitted that no poll-tax was ever paid by the citizens of said town after its incOl.:poration, and that the total value of the real and personal property, as shown by tile legal assessment in said town, was $119,000. Notice was duly given of the special election ordered In said ordinance, which recited that the election was" for the purpose of voting upon the proposition to i.8sue $36,000 in bonds for water-works for the town of Grenada. Those voting for said bonds shall have written or printed upon their ballot, · For water-works bonds. Yes.' Those voting against the bonds will have written or printed upon their ballots, · For water-works bonds. No.''' At a meeting of the board of trustees held December 17, 1887, as a canvassing board, it was found that a majority of the electors of said town voted in favor of funding the town deht; Whole number of votes cast, 24; all in favor thereof, none against. At tniJ same meeting it was ordered that the mayor and clerk of the town btl au-