By an act approved April 4, 1870, the legislature authorized the several counties of this State to aid (under certain conditions and qualifications) in the construction of railroads by the issue of county bonds payable within twenty *304years, and bearing interest not to exceed seven per cent per annum. The second section of the act provides that before the granting of such aid the board of supervisors of the county-proposing to grant such aid shall submit to the qualified electors thereof the question whether such railroad aid shall be granted, and directs that a notice of the election as therein provided for shall be given. It further provides that no such aid shall be granted “unless a majority of the electors voting at such election shall cast their votes in favor of such aid.” In pursuance of the provisions of the act referred to, the board of supervisors of the county of Santa Cruz, at a regular meeting held on the 25th day of September, 1872, passed and duly entered in its minutes the following order:—
“ Whereas, the board of supervisors of Santa Cruz County, State of California, propose that said county shall aid in the construction of a railroad of not less than a three-foot gauge, and beginning at or near the Pajaro depot, on the Southern Pacific Railroad, in the county of Monterey, and running thence in the most practicably direct route through the county of Santa Cruz, crossing the Pajaro River near Watsonville, and crossing the San Lorenzo River between the county road leading to Soquel and the bay of Monterey, and thence along or near the coast to the boundary of said county, near the southeast corner of the Point New Year’s Ranch, by the issue of county bonds, payable within twenty years, and bearing interest, payable semi-annually, at the rate of seven (7) per cent per annum, to the amount of six thousand dollars per mile, but not exceeding in the aggregate the sum of two hundred and forty thousand dollars, such aid to be in lieu of the aid of one hundred thousand dollars heretofore authorized to be granted in the construction of a railroad connecting the town of Santa Cruz with the Southern Pacific Railroad; and, whereas, the Santa Cruz and Watsonville Railroad Company have agreed that the contract entered into by said company with the said county, dated January 18, 1872, and entered on the records of said board, in vol. 3, page 184, and following, shall be deemed canceled in case the railroad aid herein proposed shall be granted. Now, therefore, it is ordered, and notice is hereby given, that at the next general election, to be held on the 5th day of November, 1872, *305there shall be submitted to the electors of Santa Cruz County, the question whether the board of supervisors of Santa Cruz County, in lieu of the aid of one hundred thousand dollars, heretofore authorized to be granted in the construction of a railroad connecting the town of Santa Cruz with the Southern Pacific Railroad, at or near the town, of Watsonville, and upon the cancellation of the said contract of the said county with the Santa Cruz and Watsonville Railroad Company, shall be authorized to grant upon terms which appear to them advantageous to the county, the aid of the county of Santa Cruz in the construction of a railroad of not less than a three-foot gauge, on the route hereinbefore described, to an amount of not exceeding in the aggregate the sum of two hundred and forty thousand dollars, in the bonds of Santa Cruz County, as proposed by said board, to be issued at the rate of not more than six thousand dollars per mile, for every mile of main track actually constructed; all ballots cast in favor of said proposition shall contain the words ‘Railroad Aid, Yes/ all ballots cast against said proposition shall contain the words ‘Railroad Aid, No.’ Said election shall be held in all the election precincts in said county, .... which order Avas published for the period of thirty days in íavo neAvspapers printed and published in the county of Santa Cruz, in accordance Avith such notice.”
On the 5th day of November, 1872, a general election was held in the county of Santa Cruz, and at such election a majority of the electors voting cast their Arotes in favor of granting aid to the railroad mentioned in said order, and on the 11th day of that month the board of supervisors, after canvassing the votes, published and declared that a majority of the electors voting at such election cast their votes in favor of granting the railroad aid mentioned in said order, and thereupon caused the proper record thereof to be entered in the “Minute Book” of its proceedings. On the 15th day of June, 1873, the board of directors of the Santa Cruz Railroad Company (the same being a corporation duly organized and existing under the laws of this State) passed a resolution authorizing the president of the company to apply to the board of supervisors for aid in the construction of its road at the rate of six thousand dollars per mile in county bonds, and on the 4th day of August, 1873, the board *306of supervisors of the county of Santa Cruz and the Santa Cruz Railroad Company executed the following agreement: —
“ This contract made and entered into on the fourth day of August, A. D. 1873, by and between the .county of Santa Cruz, in the State of California, acting by and through the board of supervisors of said county, as the party of the first part, and that certain corporation, organized, acting, and existing under and by virtue of the laws of said State, and known, designated, and called the Santa Cruz Railroad Company, as the party of the second part.
“ Witnesseth, that the board of supervisors of said county having, by an order duly made on September 25, 1872, and recorded at large in volume 3, pages 236, 237, 238, of the minutes of the proceedings of said board, proposed that said county shall aid in the construction of a railroad of not less than a three-foot gauge, the route of which road is definitely described in said proceedings as beginning at or near the Pajaro depot on the Southern Pacific Railroad; thence running in the most practically direct route through the counties of Monterey and Santa Cruz, crossing the Pajaro River near Watsonville, and crossing the San Lorenzo River between the county road leading to So quel and the bay of Monterey; and thence along or near the coast to the boundary of said county near the southeast corner of the Point New Year’s Rancho, by the issue of county bonds, payable within twenty years, and bearing interest, payable semi-annually, at the rate of seven per cent per annum, to the amount of six thousand dollars per mile, but not exceeding, in the aggregate, the sum of two hundred and forty thousand dollars; such aid to be in lieu of the aid of one hundred thousand dollars heretofore authorized to be granted in the construction of a railroad connecting the town of Santa Cruz with the Southern Pacific Railroad; and the board of supervisors of said county, under and in pursuance of an act of the legislature of said State, approved April 4, 1870, and entitled ‘ an act to empower the board of supervisors of the several counties of the State to aid in the construction of a railroad in their respective counties,’ and of the Act of April 4, A. D. 1870, supplemental thereto, having, at the election held in said county on the 5th day of November, A. D. 1872, of which election at least thirty *307days’ notice was given by publication once a week in a newspaper printed and published in said county, which notice stated the day on which, and the places where, such election was to be held in said county, and the amount of bonds of said county to be issued for railroad aid, and definitely described the route of the railroad for which aid was proposed, submitted to the qualified electors of said county the question whether such railroad aid shall be granted by said county to aid in the construction of a railroad on the route hereinbefore described; and at such election a majority of the electors voting at such election having cast their votes in favor of such railroad aid, and the result of said election, after a full and fair canvass by said board, having been declared by said board to be in favor of granting such railroad aid, and the sum of two hundred and forty thousand dollars, authorized by the said votes as aforesaid, to be granted in and to such railroad, being less than five per cent of the. value of the taxable property of said county, and no aid whatever to any railroad ever having been granted by said county; and a certain agreement dated January 18, A. D. 1872, between said county and the board of supervisors thereof, and the Santa Cruz and Watsonville Railroad Company, having been fully and forever canceled and annulled, and said county released and discharged from all liability thereunder, and covenants therein; and the said party of the second part, having been heretofore duly organized as a corporation under the laws of said State for constructing and maintaining a railroad on the entire route first hereinbefore mentioned and described, and proposing to construct on said route, first, the section of such railroad between a point at or near said Pajaro depot and a point on the westerly side of said San Lorenzo River, and within the corporate limits of the town of Santa Cruz, which point last referred to is hereafter to be located by said party of the second part; and said party of the second part having solicited the said board to grant the aid of said county in the construction of such railroad, and the terms offered by said party of the second part appearing to said board to be advantageous to said county, and it appearing that said county will be greatly benefited by the construction of such railroad, or any part thereof; now, therefore, this contract witnesseth, that in consideration of the premises and of the *308agreements herein named, to be done and performed by said party of the second part, the said party of the first part has agreed and hereby does agree with said party of the second part, to issue, deliver, and donate unto said party of the second part, in aid of the construction of such railroad, bonds of the said county of Santa Cruz, in amounts and at the times, and upon the terms as herein stated; said bonds, as herein provided, shall be payable in gold coin to said party of the second part, and to the holders of such bonds within twenty years from the date of their issue, at the office of the treasurer of said county, and shall bear interest in like coin at the rate of seven per cent per annum, and the instalments of interest shall be payable semiannually on the first Mondays of January and July of each year on coupons to be issued and delivered with such bonds, and each of such bonds shall be of the denomination of not less than one hundred dollars, nor more than one thousand dollars, signed by the chairman of said board and by the treasurer and clerk of said county and under the seal of said county, the interest coupons to be signed by the treasurer and clerk of said county. Such bonds are to be prepared for signing in the following form, to wit: Number -. State of California. -dollars. Bond of the county of Santa Cruz,” etc., etc.
The contract further provides that when five miles of the road are completed, and a construction train has been run over the same, there shall be issued to the company bonds of the county to the amount of thirty thousand dollars, and upon the construction of every mile of the track thereafter, and the passage of a construction train over the same, there shall be issued to the railroad company bonds of the county to the amount of six thousand dollars. The contract then proceeds to provide for a notice to be given of the construction of the road as it-progressed, for an examination and inspection of the same,'for an acceptance thereof by the county, and for the issue of bonds as the road was built, at the rate of six thousand dollars per mile. There are numerous other clauses in the contract, which it is unnecessary to notice, for the purposes of this opinion.
It appears from the evidence in the case that the railroad company commenced work on the first section of its road, and *309prosecuted the work thereon with reasonable diligence until the same was completed from the city of Santa Cruz to the Pajaro depot; that the company built a bridge over and across the San Lorenzo River; that the road was constructed in the manner provided for and in accordance with the contract ; that a construction train was run over the road; that it was inspected by the board of supervisors; that it was duly accepted, and the board of supervisors, on the 9th day of December, 1874, ordered that thirty thousand dollars of the bonds of the county be issued to the company.
It further appears that on or about the 11th day of December, 1874, a suit was commenced by one William H. Patterson in the District Court of the Twentieth Judicial District against the board of supervisors of the county of Santa Cruz, praying for an injunction to restrain and enjoin the defendants from issuing to the railroad company any bonds on account of the construction of said road, and thereupon an injunction was issued in pursuance of the prayer of the complaint. The case of Patterson v. The Supervisors was afterwards tried upon its merits, and on the 23d day of February, 1876, a decree was entered therein declaring that the proceedings of the board were legal and valid; that the issuance of the bonds should not be in any manner restrained or enjoined, and thereupon the injunction previously issued was dissolved.
After the judgment of the Twentieth District Court, dissolving the injunction referred to above, that is to say, on or about the 25th day of February, 1876, the board of supervisors of Santa Cruz County issued and delivered to the Santa Cruz Railroad Company thirty thousand dollars of bonds, each of which was in the following form: —
“In pursuance of an act of the legislature of the State of California, entitled ‘ an act to empower the board of supervisors of the several counties of the State to aid in the construction of a railroad in their respective counties/ approved April 4, 1870, and of an act supplemental thereto, approved April 4, 1870, and in accordance with the terms of a contract entered into by the board of supervisors of said county on the 4th of August, 1873, with the Santa Cruz Railroad Company, which said contract is entered upon the minutes of the board of *310supervisors in volume 3, pages 279, 280, 281, 282, 283, 284, 285, 286.
“ The county of Santa Cruz owes and will pay at the office of the county treasurer in the town of Santa Cruz, State of California, to. the Santa Cruz Railroad Company, or the holder of this bond, within twenty years from the date of these presents, the sum of one thousand dollars in United States gold coin, with interest thereon at the rate of seven per cent per annum in like gold coin, from the date hereof until paid; interest payable semi-annually on the first Mondays of January and July of each year, on the surrender to said county treasurer of the coupon for said interest.”
The coupon attached to each of the bonds is in the following form:—
“ Coupon No. 41. On the 23d day of February, A. D. 1896, the county of Santa Cruz will pay to the Santa Cruz Railroad Company, or bearer, at the county treasurer’s office, ten and twenty-one one-hundredths dollars in United States gold coin, interest due on bond No. 1.”
On the 20th day of March, 1875, and at divers times between that date and the 15th day of November of that year, the Santa Cruz Railroad Company presented and filed with the board of supervisors written notices and communications informing them of the completion of fourteen additional miles of the road, and thereupon proceedings were regularly taken by.the board to inspect and examine the sáme, and after such examination and inspection the following order was passed: —
“ It is therefore ordered by the board of supervisors of the county of Santa Cruz, that there be issued and delivered to the Santa Cruz Railroad Company bonds of said county of Santa Cruz to the amount of eighty-four thousand dollars, in sums of one thousand dollars each, payable within twenty years of their date in United States gold coin, and bearing interest in like coin, at the rate of seven per cent per annum from their date, and interest payable semi-annually on the first Mondays of January and July of each year, in pursuance of the terms of said contract between the county of Santa Cruz and the Santa Cruz Railroad Company, and that said bonds be signed by the chairman of this board and by the county treasurer and county *311clerk, and. under the seal of said county, and the interest coupons to be signed by said treasurer and said clerk.
It is further ordered that each of the bonds issued to the said railroad company under said contract shall be of the denomination of one thousand dollars.”
In pursuance of the above order, bonds were issued to the Santa Cruz Railroad Company to the amount of eighty-four thousand dollars. These bonds were in form similar to the bonds for thirty thousand dollars previously issued to the railroad company
All of these bonds were, within three months from the issuance thereof, sold and disposed of by the railroad company, and on the 2d day of August, 1879, they were purchased and paid for by the plaintiff, the Nevada Bank of San Francisco, in the ordinary course of business, at the rate of ninety-five cents on the dollar, arid were purchased under the belief that the same were legal and valid.
On the 3d day of January, 1881, the coupons on the bonds which fell due on the first of that month, were presented to the defendant, the treasurer of the county of Santa Cruz, and payment thereof was demanded, which was refused by the defendant, although he at that time had sufficient funds on hand specially provided by law for that purpose, to pay said coupons; and this is an application to the court for a peremptory writ of mandamus to compel the defendant as treasurer of said county to pay such coupons.
There are other facts presented by the pleadings and report of the referee to whom this case was referred for the purpose of taking aud reporting the facts therein, but we deem it unnecessary to consider them.
The question presented for our decision is simply this: Are the bonds in the hands of the plaintiff, claiming the same as a bona fide purchaser for value, valid and binding upon the county of Santa Cruz ?
The Act of April 4, 1870, as appears from its title, as well as from its clearly expressed object, was intended to “ empower the-board of supervisors of the several counties of the State to aid in the construction of a railroad in their respective counties,” and the only restrictions imposed upon the board were that the *312bonds to be issued for such aid should not exceed five per cent of the value of the taxable property of the county, and further that the question of granting such aid should be submitted to the qualified electors of the county in pursuance of section -2 of the act. The question of granting such aid was submitted to the voters of the county of Santa Cruz, and the proposition xvas for a road “ beginning at or near Pajaro depot on the Southern Pacific Railroad in the county of Monterey, and running thence in the most practicably direct route through the county of Santa Cruz, crossing the Pajaro River near "Watsonville, between the county road leading to Soquel and the bay of Monterey, and thence running along or near the coast to the boundary of said county, near the southeast corner of Point New Year’s Ranch,” and the order was:—
“ Now, therefore, it is ordered and notice is hereby given that at the next general election to be held, etc., there shall be submitted to the people the question whether the board of supervisors shall be authorized to grant, upon terms which may appear to them to be advantageous to the county, the aid of the county of Santa Cruz, as folloxvs: When five miles of said first section of said railroad shall have been constructed and a construction train run over the same, there shall be issued and delivered to said party of the second part by the said party of the first part, bonds of said county to the amount of thirty thousand dollars, and upon the construction of every mile of track thereafter of such railroad, and the passage of a construction train over the same, there shall be issued and delivered as last aforesaid, to the said party of the second part, bonds of said county to the amount of six thousand dollars, and so on until the construction of said railroad is completed”; and it xvas provided in the proposition submitted to and adopted by the vote of the people, that bonds should be issued at the rate of not more than six thousand dollars for every mile of main track actually constructed. It is claimed on behalf of defendant, first, that the contract was an unilateral one, and therefore not binding upon the county; second,- that the board of supervisors had no poxver to enter into a contract for the construction of a railroad xvhich did not extend over the entire route from Pajaro depot on the south to Point New Year’s Ranch on the north; *313and third, that the Act of 1870 was repealed before the bonds were issued.
If the contract did not contain any stipulation on the part of the railroad company to build the road or to do any other act, we can see no good reason why the party of the first part should not be bound by its promise or agreement, provided the railroad company, acting upon such promise or agreement, proceeded to construct the road in accordance with the conditions set forth in the contract. It may be that the county could have withdrawn its promise of aid at any time before work was done on the faith of the promise; but after the work was done and the contract was executed, the county could not escape from its liability on the ground that the company did not in the first instance obligate itself to construct the road. If A. promise B. to pay him a stipulated sum for a certain service, and B. renders the service without any contemporaneous promise to do so, can it be doubted that A. will be bound by his promise? The following authorities are referred to in support of the point that the contract was binding on the county after performance by the company even if it was unilateral. (Barnes v. Perine, 9 Barb. 211; Robertson v. March, 3 Scam. 198; Chitty on Contracts, 64; Train v. Gold, 5 Pick. 379; White v. Baxter, 71 N. Y. 254.)
But is it true that the railroad company did not agree or promise to do anything on its part? The contract contains the following agreement or promise by the company: “And the said party of the second part (the company) has agreed and hereby does agree to and with the said party of the first part, to build, construct, and finish such last-named bridge (across the San Lorenzo River), and to lay the track of said railroad from the easterly bank of said last-named river to a point on the westerly side thereof within three hundred feet of said bay, in three months after said bonds of said county to the amount of ninety thousand dollars shall have been issued and delivered to said party of the second part.” There is also a clause in the contract to the effect that the aid is granted in lieu of a former aid of one hundred thousand dollars, which is surrendered and canceled by the express terms of the contract. Here we find a sufficient consideration, if any were necessary, for the promise on the part of the county.
*314The second point made on behalf of the defendant involves an attack upon the contract, on the ground that the board of supervisors had no power to make it, because it did not provide for, and the Santa Cruz Railroad Company was not bound under it to construct the road along the entire route.
In this connection it is proper to notice the fact that the Act of April 4, 1870, does not provide for a contract between the county and the railroad company, but simply empowers the county to aid in the construction of railroads upon certain terms. The aid authorized by the law, and intended by the parties, was to be granted as the work progressed, in order to assist and enable the company to pay for the work and construct the road, and it never was contemplated that the entire work should be completed and paid for by the company before the bonds should be issued. (Kenicott v. Supervisors, 16 Wall. 466.) This would not be aiding the company in the construction of the road, but would simply be reimbursing the company, in Avhole or in part, its money expended in building the road. This vieAV is fortified by the proposition submitted to the electors, which Avas, that the county should aid the railroad company in the construction of its road by issuing and delivering to it bonds “ at the rate of not more than six thousand dollars per mile for every mile of main trade actually constructed.” The bonds should have been issued for every mile Avhen constructed (after the completion of the first five miles), and it is fair to presume that they would have been so issued if the board had not been enjoined by the order of the Twentieth District Court.
The Bank of Nevada purchased the bonds for value, Avithout notice of any infirmity in them, and the only question is one of power in the board to issue them. (Cromwell v. The County of Sac, 96 U. S. 51; 1 Dillou Muni Corp. § 515, and authorities there cited.) If the board did not have the power to issue the bonds there could be no such thing as a bona fide holder of them, as any purchaser Avould be held to have notice of the fact, where there was a total want of authority.” (Township of East Oakland v. Skinner, 94 U. S. 258.) “The folloAving doctrines are too well settled to be any longer open to question. A bona fide purchaser of negotiable paper for value before maturity takes it freed from all infirmities in its origin, .unless it is absolutely *315void for want of power in the maker to issue it, or its circulation is by law prohibited. Municipal bonds payable to bearer are subject to the same rules as other negotiable paper.” (1 Dillon on Mun. Corp. § 113, and authorities there cited.) Speaking further on this subject, the same author says: “ The Supreme Court of the United States has upheld the rights of the holders of municipal securities with a strong hand, and has set a face of flint against repudiation.” (1 Dillon on Mun. Corp. § 518.) “It [the Supreme Court of the United States] has adopted when necessary to protect the bona fide holders of such securities, liberal construction of statutes and charters authorizing the creation of such debts. Against such holders it has given no favor to defenses based upon mere irregularities in the issue of the bonds or non-compliance with preliminary requirements, not going to the question of power to issue them.” (1 Dillon on Mun. Corp. § 515.)
It is claimed in the case now under consideration that there was a want of power on the part of the board of supervisors to make any contract or to issue any bonds for a portion of the road, and that is the only ground upon which the question of power can arise. There is no charge of fraud or unfair dealing on the part of the board, and the most that can be said against its action is that it provided in the first place for the construction of that section of the road lying between the city of Santa Cruz and the Pajaro depot. In this we can perceive no just cause of objection or complaint, for that was the most important section of the road; and its completion brought a large portion of the county of Santa Cruz into direct communication with the Southern Pacific Hoad, and thereby opened a lengthy line of travel north and south with other portions of the State.
It does not appear that there was not an intention on the part of the board of supervisors to extend the road in a northerly direction from Santa Cruz to its northerly, terminus, and after appropriating one half of the two hundred and forty thousand dollars of the bonds to the first section of the road—about one half of the entire route— there remained to be issued a corresponding amount of bonds to aid in the construction of the other half of the railroad.
It remains only for us to say that in our opinion the bonds *316were not issued without power, that they were valid when issued, and are good and binding upon the county in the hands of the plaintiff.
There is but one other question to be determined, and that relates to the effect of the Act of January 14,1874, repealing the Act of April 4, 1870. This question has been passed upon in several cases. It is found in the report of the referee that the Santa Cruz Bailroad Company commenced work on its road, under the contract between it and the county, on the 25th day of October, 1873, and prosecuted the same Avith reasonable diligence; but the repealing act Avas not passed until January 14, 1874. In vieAAr of the facts of this case the validity of the bonds Avas not affected by the repeal of the Act of April 4, 1870. (Town of Concord v. Savings Bank, 92 U. S. 630; Steamship Company v. Joliffe, 2 Wall. 450; Montgomery v. Masson, 16 Cal. 189.)
Let the Avrit issue.