This was a suit to recover the amount of overdue interest coupons on bonds issued by the appellant in aid of railroads. On the thirty-first of 'December, 1887, plantiff filed in the district court in and for Santa Fe county a declaration containing ten counts. Nine of the ten counts were special counts in substantially the same language, and setting forth that the cause of action arose upon a large number of interest coupons, the different numbers and amounts being set forth in the several special counts, copies of the interest coupons being attached to and filed with the declaration. A demurrer was sustained to all the special counts, and the plaintiff elected to go to trial on the remaining count of the declaration, the common money count, the bill of particulars, and the stipulation as amendatory thereto. The defendant demanded the filing of a bill of particulars, and the rule was discharged by the plaintiff, by referring to the coupons on file with the declaration as a sufficient bill of particulars. The defendant filed six pleas: First, the general issue; second, plea of four years’ statute of limitation; third, plea of six years’ statute of limitation; and the fourth, fifth, and sixth pleas set forth substantially that the promises and undertakings alleged by the plaintiff, if any such were made, were illegal and void for want of authority in the probate judge and the county commissioners of Santa Fe county to call or hold an election for the purpose of granting aid to railroads; that the amount of the bonds issued was excessive; that the bonds bore an unauthorized rate of interest; that the county had no authority to issue or deliver the bonds; that they were not issued in accordance with the vote of the people; that the recitals did not recite the conditions upon which the bonds were voted; and that the railroad had not been constructed. The plaintiff joined issue on the first plea; replied to the second and third, in substance, that the obligations were not barred by the statute; and to the fourth, fifth, and sixth pleas of the defendant the plaintiff replied, in substance, that the action was founded upon coupons and contracts in writing for the payment of the interest upon certain bonds which on their face purported to be bonds of the county of Santa Fe, issued in full conformity to, and compliance with, the statutes of the territory of New Mexico, authorized by the vote of the qualified electors, and that the plaintiff had purchased said coupons for"a valuable consideration, and without notice of the matters alleged in the defendant’s pleas. Bejoinders to each of the replications filed by the plaintiff to the defendant’s fourth, fifth, and sixth pleas were filed by the defendant, but demurrers were sustained to each of them, and the defendant afterward filed amended rejoinders, in which it substantially rejoined to each of the plaintiff’s said replications, that the action was not founded upon certain coupons or contracts in writing, that the plaintiff did not purchase such coupons for a valuable consideration, and denied that the plaintiff purchased the same without notice. The plaintiff joined issue.
Before proceeding to the trial of the cause, and as bearing upon the question of pleading, a stipulation was filed as follows:
“William N. Coler, Jr., v. The Board of County Commissioners of Santa Fe County. In the district court, county of Santa Fe, July term, 1889.
“It is hereby stipulated by the respective parties to the above entitled action as follows: The defendant admits that bond number 45 produced by the plaintiff, is one of the bonds from which the coupons in question are detached, said bonds being issued in several series, and all of them in form, tenor, and recitals substantially like said bond number 45. The pleadings, bill of particulars, and other proceedings shall be deemed and considered, as hereby amended so as to embrace the plaintiff’s claim on coupons clipped from the bonds aforesaid, to the amount of $19,915, of which $4,165 matured January 1, 1888; $5,250 matured July 1, 1888; $5,250, January 1, 1889; and $5,250 matured July 1, 1889, with the interest thereon from said several and respective dates of maturity, as well as the plaintiff’s claim already specified in the papers on file herein, and also so as to conform to the facts as to the form and recitals of the said bonds, as hereinbefore referred to. The defendant also admits that the county of Santa Fe levied taxes for the years 1881, 1882, 1883, 1884,1885,1886, and 1887, expressly for the payment of the interest accruing in those years upon and according to the tenor of the bonds, to which the said coupons were attached; that such taxes amounted to $88,579; that of the proceeds of such taxes $36,400 were paid on account of the said interest, the said county upon such payment taking up and canceling coupons for a like amount, clipped from the said bonds; that a large sum of money, part of the proceeds of such taxation, was, by the said county, diverted from the purpose aforesaid for which it was raised and appropriated to other county purposes; that the levy of the said taxes in each of the said years is evidenced by the written records of said county, subscribed in its behalf by its county commissioners, and attested by the proper clerk; that the said bonds and attached coupons were, upon their delivery to, and acceptance by, the New Mexico & Southern Pacific Railroad Company, sold by that corporation for value, and purchased by divers persons, and in the year 1883, and from time to time thereafter, the plaintiff! acquired the said coupons and bonds for value.
“R. E. Twitchell, District Attorney.
“N. B. Laughlin, Thomas Smith,
“Gtldeesleeve & Peeston of Counsel.
“Cateon, Knaebel & Clanoy,
“Plaintiff’s Attorneys.”
Upon the issues thus made up the cause proceeded to trial on the sixteenth day of August, 1889. The trial resulted in a verdict for the plaintiff, under the instructions of the court, and a judgment was entered upon the verdict for the sum of $78,395.02. To reverse this judgment the appellant brings the cause to this court.
The legislative assembly for the territory of New Mexico, in the year 1872, passed an act to encourage the building of railroads in the territory of New Mexico, and authorizing the counties of the territory to issue bonds, or other evidence of debt, to aid in the construction of railroads, and to receive stock or other securities for the benefit of such counties. The act is as follows: “Chapter 30. An act authorizing counties to aid in the construction of railroads. Be it enacted by the legislative assembly of the territory of New Mexico: Section 1. That it shall be lawful for the people of any county in this territory to pledge the credit of such county to borrow money, to issue bonds or other evidences of debt, to assist in the construction of any railroad passing through all or a portion of said county, for such amount or amounts of money, not exceeding for any such road five per centum of the assessed value of the real and personal property of such county, as the electors of said county may determine in meetings or elections that may be held in the various precincts of such county for that purpose, and at said meetings or elections the terms and conditions of such pledge of credit may also be determined as hereinafter provided, in this act. The amount of bonds or other evideuces [of debt] that may become due in any year shall not exceed two per centum of the assessed value of the property of such county at. the time of issuing such bonds or other evidences of debt. Nor shall the rate of interest upon such bonds or other evidence of debt be more than —;— per' centum per annum. Sec. 2. It shall be the duty of the probate judge or commissioner who may be hereafter provided by law, as the case may be, to call a meeting or election of the electors of the various precincts of said county who own taxable property, upon the written or printed, or in part written or printed, request of fifteen owners of property, electors and taxpayers of such county, which request shall specify the amount which has to be raised or pledged, and the manner of raising and pledging the same by bonds or otherwise, the rate of interest which has to be paid, the time or times of the payment, and such other matters as they may consider for the welfare and security of the people of the county, and in publishing notices of the meetings or elections to be held in such county there shall also be published with such notice a copy of the request and names upon the same, for which they call the meetings or elections. The questions submitted to the electors shall be those contained in the call for the meetings or elections, and those who vote upon the question of aid shall vote a ticket upon which is written or printed, or part written ánd part printed, the words, ‘Aid for railroads, yes; ’ and those who vote in the negative shall vote a ticket on which is written or printed, or part-written or printed, the words, ‘Aid for railroads, no/ The elections or meetings to determine the question .of aid shall be held at the usual places of voting in the precincts of the county, to be called in the same manner, at the same hours of the day the polls shall be opened, and shall be closed at the same time and manner, and the tickets shall be counted by the same inspectors and persons, and they shall make returns of the same, certified, delivered, or returned in the same manner to all intents and purposes, as correct as is possible, as in the case of annual elections heretofore held for the election of officers, except that four notices of elections, printed in both languages, Spanish and English, shall be published at least fifteen days before the day of the election, in some conspicuous place in every and each precinct in the county, and shall be published in some periodical published in the county.' Sec. 3. Should it be determined at such meetings or elections to aid in the construction of any railroad, and should it so appear from the proper returns of such meetings or elections held in such precincts as aforesaid, which returns shall be made, certified, and delivered by the proper inspectors, to the same person or persons, and in the same manner, that ordinary returns of election of county officers are certified, made, and delivered, within ten days after Such meetings or elections are held, it shall be the duty of the probate judge of such county, or of any commissioner or commissioners who may by law be provided for, elected, or appointed for that purpose, to execute bonds or other evidences of debt, under their seal of office attested to by the clerk of the probate court, in conformity with the vote given at such elections or meetings of said county, and to require of the railroad company for whose benefit the aid has been voted such stock or other security for the same as can by such vote be required, as a condition precedent for the delivery of such bonds or other evidences of debt, and to do all other acts necessary to comply with the vote of the electors of such county, and all moneys, certificates, securities, or other things inuring to said county under this act, and by virtue of the conditions of such vote of said electors, shall .be deposited with said probate judge or commissioners, as the case may be, and by him or them shall be kept in safety until delivered, in conformity with the law, to the proper person at any time entitled thereto, orto the successor in office of said probate judge or commissioners as aforesaid. Sec. 4. It shall be the duty of the proper officer levying the usual taxes for territorial and county purposes, under the general law of taxation, to raise by taxation such sums of money, annually and from year to year, as may be sufficient from time to time to pay the principal and interest of such bonds or evidence of debt as regularly as the same shall become due, and in time to meet promptly the debt and interest: provided, that no bonds or other evidences of debt created under this act shall be sold for less than their par value; nor such bonds or other evidences> of debt shall be paid or delivered to any railroad company, nor to any person or persons for the use of such company, nor shall they be permitted to leave the hands of said judge or commissioners, except upon the certificate of the governor that the railroad to which such aid has been conceded has been completed in the county where such aid was voted, whether it shall be entirely for such part of the county as the road has to pass, or in such proportion to ¿11 the distance agreeably to the amount of bonds or other evidences of debt delivered shall show to the whole sum voted. Sec. 5. This act shall take effect from and after its passage. Approved February 1, 1872.”
In the year 1876, and prior to the issuing of the bonds and coupons in question in this case, the legislature of New Mexico passed what is known as the “County Commissioners’ Act.” By this act it was evidently intended that the government of the county should pass from the probate judge to the boards of county commissioners provided for by the act, and the following provisions of that act are cited in support of this view: Section 332, Comp. Laws: “Each organized county in this territory shall be a body corporate and politic, and as such shall be empowered for the following purposes: * * * (4) To make all contracts and do all other acts in reference to the property and concerns necessary to the exercise of' its corporate or administrative powers. (5) To exercise such other additional powers as may he specifically conferred by law.” Sec. 334: “The powers of a county, as a body politic and corporate, shall be exercised by a board of county commissioners.” Section 345. “The board of county commissioners shall have power at any session: * * * (2) To examine and settle all accounts of receipts and expenses of the county, and to examine and settle and allow all accounts chargeable against the county, and when so settled there may be issued county orders therefor, as provided by law. * * * (5) To represent the county and have the care of the county property, and the management of the interests of the county, in all cases where no other provision is made by law. * * * (8) To grant all licenses as may be provided by law, and every officer and person now required by law to make a return or render an account to the judges of probate, except in matters pertaining to probate, shall make and render the same to the various boards of county commissioners in the manner now required by law. (9) * * * The votes east in any election shall be canvassed and counted within the time now prescribed by law, and the said boards of commissioners shall discharge all the duties and shall exercise all the powers now exer-cised by the several probate judges relative to elections as now required by law, and shall be subject to the same penalties for any failure in the discharge of their duties and abuse or usurpation of power.” Section 365: “All collectors, sheriffs, treasurers, clerks, constables, and all other persons responsible for money belonging to the county, shall render their accounts to settle with the board of county commissioners.”
The bonds from which the coupons sued on in this case were detached, were issued in professed conformity to the provisions of the act of 1872, above referred to, as modified by the provisions of the county commissioners’ act of 1876. They were issued in several series. Each bond stated the number of bonds in the series of which such bond was a part. The bonds were for $1,000 each. The bonds do not show upon their face the total amount of the entire series, nor the value assessed, or otherwise, of the property of the county of Santa Fe. Every bond contained recitals declaring it to have been issued in pursuance of the proper statute. The recitals are in the following language, viz.: “This bond is one of a series of-bonds, each of like tenor, date, and amount, and of like date of maturity, issued in payment of a concession of-thousand dollars of bonds of the county of Santa Fe, payable thirty-four years after date, to assist in the construction of a railroad by the New Mexico and Southern Pacific Railroad Company, passing through a portion of said county of Santa Fe, in the territory of New Mexico, and is issued in full conformity to and compliance with the statutes of the territory of New Mexico, empowering and authorizing counties to issue bonds to assist in the construction of railroads passing through all or any portion of said county, having been duly authorized by vote of the qualified electors who own taxable property in said county of Santa Fe, at an election duly called and held on the fourth day of October, A. D. 1879, and the governor of the territory of New Mexico having duly certified that the railroad to which such aid has been ceded has been completed in said county of Santa Fe, in full compliance with the terms of such concessions. In witness whereof, the undersigned, the probate judge and the board of county commissioners of the county of Santa Fe, in the territory of New Mexico, pursuant to and in full compliance with the statute in such case made and provided, have signed and executed this bond, and have caused the same to be attested by the clerk of the probate court of said county, an ex officio clerk of said board of county commissioners, under the seals of said probate court and of said board of county commissioners, this-day of-, 1880.”
Each bond bore the county seal, and they were signed by the several county commissioners, the probate judge, and were attested by the probate clerk. It was unnecessary for the county commissioners and the probate judge to join in the execution. We are of the opinion that although at the time of the passage of the statute authorizing such bonds, only the probate judge was authorized to represent the county in the execution, yet the county commissioners’ act of 1876, taken in connection with the railroad aid act of 1872, transferred the powers of the probate judge, under the last mentioned act, to the board of county commissioners. Kankakee Co. v. Aetna Life Ins. Co., 106 U. S. 668. We attach no importance to the fact that the probate judge united with the county commissioners in the proceeding.
county bonds-board':''s'ignate ^ge? validity of issue. Counsel for appellant insist that the fact that the probate judge signed the bonds was of itself notice of an irregularity in their issue, sufficient to put purchasers on inquiry; but we regard such fact as, suggesting only an inquiry as to why the probate j ndge so acted. The inquiry, if pursued, would have led only to a reading and interpretation of the statutes under which the proceedings were had, and the only inference which a purchaser could draw from the union of the several official signatures on the bonds would have been that they were employed to satisfy all the requirements of the statute in case it should be held that subsequent legislation did not divest the probate judge of his former functions respecting such proceedings. The purchaser, instead of being led to conclude that the numerous signatures were suspicious circumstances, would be impressed with the evident care taken to remove objections. In carrying out the provisions of the act of 1872 by issuing bonds as therein provided for, the aet of the probate judge would have been the act of the county itself in its corporate capacity; but in carrying out the provisions of that act, by issuing bonds in aid of railroads authorized by that act after the passage of the county commissioners’ act of 1876, we are of the opinion that the act of the county commissioners would be the act of the county itself in its corporate capacity; and therefore, at the time the bonds to which the coupons involved in this case were attached were issued, it was not necessary for the probate judge to attach his official signature to them, but that his signature was harmless surplusage, and vitiated nothing otherwise valid.
ratb of ¡merest legamy oi. ’ Counsel for appellant also claim that the bonds ought not to bear seven per cent interest, but should have drawn six per cent. This claim is based on an imperfect clause in the first section of the aet of 1872: “Nor shall the rate of interest upon such bonds or other evidences of debt be more than-per centum per annum.”
This clause is imperfect and meaningless, and the court can not by judicial construction fill the blank. It is unnecessary to examine the question of what, if any, significance should be given to the clause had it been the only provision concerning interest contained in the statute, for the next section clearly declares that the proposition to be submitted to the qualified electors should specify the rate of interest which is to be paid. This latter clause leaves the determination of the rate of interest to the people of the county. Here, the rule that, in case of repugnancy between statutory clauses, the latter shall control, is of service. Following that rule, the definite clause in the second section must control the imperfect clause in the first section. This construction is also aided by the practical interpretation of the statute by the county o fficers for a series of years, in dealing with the very bonds in question. The county, by the vote of the people, fixed seven per cent as the rate of interest, but that interest was afterward paid by taxes levied and collected during several consecutive years. Another statute, passed at the same session of the legislature as was the railroad aid act, abolished usury, and left all persons free to contract concerning the rate of interest. Chapter 19, Laws, 1872. The objection to the introduction of the coupons in evidence because they bore seven per cent interest was properly overruled. Six per cent interest only was computed upon coupons overdue.
four years’ ümRation.six years-limitalion’ Appellant insists that some of the coupons sued upon were barred by the statute of limitation, a matter which, if sustained, would go to the question of a reduction of the judgment. One batch of the coupons in question matured in the year 1881, more than six years before the commencement’ of the action; some others of the coupons matured more than four years before such commencement. The appellant pleaded both the six years’ and the four years’ statute of limitations, and insists that, the declaration being on the common counts only, the four years’ period of the statute is applicable, and cites in support of such contention some cases in the Y ermont reports. In our opinion, the action is essentially founded on written instruments, and therefore the four years’ period of limitation is not applicable. The common counts in the declaration could be proven either by oral or by written promises. Lyon v. Bertram, 20 How. 140-156. A copy of one of the bonds was filed in the action as well as copies of the coupons, and these copies were also put into the case as part of the declaration by the appellee’s bill of particulars. 1 Tidd, Pr., p. 599; Benedict v. Swain, 43 N. H. 34; and Nauvoo v. Ritter, 97 U. S. 391. The declaration and subsequent pleadings, read with the bill of particulars, ■show clearly that the coupons lay at the foundation of the action. This was the obvious, meritorious fact, and it is not to be overcome by the mere fiction of law that an implied promise was raised upon the express written promises. If the action was i'n one sense founded on the implied promise, it was in another sense also founded upon the underlying express promises upon: which both the implied promise and the action itself were necessarily established. In Supervisors v. Hubbard, 45 Ill. 139, the common counts only were included in the declaration. The court treated the action as founded on the coupons involved. Moreover, the stipulation concedes, in effect, that the coupons lay at the foundation of the litigation. The stipulation, as well as the county’s recognition of the bonds and coupons, sufficiently proves their due execution, even without resort to the statutory presumption. The coupons which matured in the year 1881 would be barred but for two reasons: First, it is stipulated that taxes were levied for the ■payment of those coupons; and, secondly, the board of county commissioners, before the six years’ statute could attach, recognized the interest due on these bonds as a continuing liability. The county ■board at its regular session, June 7, 1886, passed a resolution in the following language:
' “Whebeas, it appears that there are not sufficient funds in the treasury of the county to meet the interest due on the bonds issued for the redemption of county ■warrants and bonds issued to the New Mexico & ■■Southern Pacific Bailroad Company, in aid of the construetion of the branch thereof, be it resolved, that the chairman of the county commissioners be, and he is hereby authorized to make the necessary loan in order to meet said interest when due, and said chairman is hereby authorized to issue a warrant for the payment of the interest on said loan.
“B. Seligman, Chairman.
“John Q-eay, Clerk. ”
stipulation by vaudityyof. This was a formal, official recognition of the bonds, as well as an' admission of the obligation to- pay the interest due on the bonds, and was provable both as an acknowledgment and as an account stated, under the common counts. The county board appears also to -have admitted the accruing interest upon these •county bonds at a session of the board held December 2, 1885.. The county appears to have collected $88,579, proceeds of taxation, applicable to the payment of the interest coupons on the bonds in question, in the years 1881, 1882, 1883, 1884, 1885, 1886, and 1887, and $36,400 of the amount collected was in fact applied to the payment of the interest" accruing on these bonds. ■Some of the interest money so levied by taxation ■appears to have been collected and diverted to other uses by the county. Enough appears to have been misappropriated to have paid the coupons which matured six years before the action. The precise time of such conversion does not appear in the case. If it was more than six years before the action, the appellant ■should have shown that fact. The amount was recoverable under the common counts, no objection being made on the trial of a variance between the proofs and the bill of particulars. It was also urged that the stipulation of the attorneys was ultra vires, and that notwithstanding the stipulation the coupons, amounting to $19,915, which matured after the filing of the declaration, could not be considered in the case. This’ objection was not made in the court below, so far as the record discloses, and is therefore not available here. The stipulation is lawful on its face, and no application was made below for leave to withdraw it. Every presumption of authority attends the signatures of attorneys. Osborn v. U. S. Bank, 9 Wheat. 829; Hill v. Mendenhall, 21 Wall. 454. This presumption would extend to a mere voluntary appearance, and a voluntary appearance in a new action for the recovery of the payment of additional coupons would have had no higher efficacy than the stipulation entered into in the pending action. It was not necessary to interline or recopy the declaration so as to embrace the amendments. The stipulation imported an immediate amendment by force of its own terms, and the amendment, being specific in character, and not general, was perfectly regular. Walden’s Lessee v. Craig’s Heirs, 14 Pet. 147. The stipulation was admitted in evidence by the court below, and we think properly so. When it was offered, a general, but not specific, objection was made to its introduction; but an examination of the record discloses the fact that at no time during the trial of the cause was it suggested that the stipulation did not recite facts. Indeed, it was admitted by the appellant that the stipulation correctly stated facts. On page 59 of the record, Mr. Preston, one of the counsel for appellant who signed this stipulation, said: “We admit that the matters contained in the stipulation are facts, but deny that they are proper evidence.” Mr. Smith, also of counsel for appellant, and who signed the stipulation, says on page 59 of the record: “We admit it to be a fact that taxes were levied for the payment of these bonds. The moment it shall be attempted to introduce that fact in evidence we will object, because we think it is immaterial. By admitting that this bond is a sample of the others, we do not admit that this bond is properly admissible in evidence. We admit that taxes were levied, but deny that it is proper evidence.” This stipulation was signed by counsel regularly employed by the county of Santa Fe, as shown by the record, and the recorded proceedings of the board of county commissioners for Santa Fe county. It was also signed by the legal representative of the county, the district attorney, and the evident purpose was to simplify the issues "by the admission of existing facts; and we see no reason why the defendant should be relieved from ■admitting the truth and the actual facts as they existed ■at the time the stipulation was entered into. This stipulation was evidently intended to remove from the case technicalities, in order that the cause might be tried upon its merits; the real purpose being to determine -whether the bonds of the county were valid or void. Hence the stipulation provides that the pleadings should be considered as “hereby amended” so as to embrace all the coupons due up to the time of the trial, it being immaterial to the appellant, the amount of the judgment not exceeding amount due, if the bonds and the coupons sued on were held to be valid obligations of the county. Therefore a technical examination of the pleadings in the cause seems to have been unnecessary, either in the court below or in this court.. This ■court has already indicated its unwillingness to encourage- technical objections respecting pleadings when made for the first time on appeal, after the parties have .gone to trial acquiescently on an assumed issue of facts, holding that even the entire absence of a plea is immaterial, if the defendant goes to trial and controverts the plaintiff’s claim by proof. We take notice of the fact that* counsel who signed the stipulation in the court below are counsel in this court in this case, which, at least, suggests that counsel are not liable to the charge uf having ’misrepresented the county in signing the stipulation. “The appearance of a regularly licensed practitioner of a chancery court is always received as evidence of his authority, and this although he acts for a corporation.” Osborn v. U. S. Bank, 9 Wheat. 829. “A record which shows an appearance by an attorney will bind the party until it is proven that the attorney acted without authority.” Hill v. Mendenhall, 21 Wall. 454. “The authority of the attorney general of a state is presumed.” Pennsylvania v. Wheeling Bridge Co., 13 How. 519. We see no reason why the principle in this case does not apply to the district, attorney or legal representative of a county.
ponsfldSibnIt is insisted by the appellant that the court erred in admitting the coupons in evidence in the court below. We have already disposed of this objection, in so far as to hold that the coupons lay at the foundation of the action, and that, the action was therefore founded upon written instruments, which may be received in evidence under the common money counts. By the pleadings, the bill of particulars, and the stipulation it is undoubted that the coupons were the real cause of action in this case. There was no plea denying under oath the execution of the instruments sued on, and hence they were admissible in evidence without any further proof of their execution, under the provisions of the Compiled Laws of' New Mexico. One of the bonds was admitted in evidence, not because it was really a part of the cause of' action, but it was properly admissible as furnishing the substratum on which the coupons rested. Supervisors v. Hubbard, 45 Ill. 141.
bona fide holder • burden of proof.negotiability of o?bon“«dends holder‘stipulation: presumption,assessment: evidence. Proceeding, then, to the consideration of the main, issue, the fundamental questions in this case are — First, whether the bonds to which the coupons sued on were attached were illegal in their inception; and, secondly, whether such illegality, if it existed, is available as a defense against the appellee. If the county ^ gan£a jpe was utterly without power to issue the bonds, the bonds are bad, no matter into whose hands they may have passed. The utmost good faith could not avail a purchaser in such a case. But, if the bonds were issued within the apparent scope of a lawful power, and their recitals import the performance of all the conditions precedent, then irregularities in the exercise of the power, although they might perhaps have avoided the bonds as between the county and the railroad company, afford no defense against a subsequent bona fide holder. In such case, the county, as against one presumed by law to be a bona fide holder, must, by affirmative proof bring home to him knowledge of the irregularities in order to avoid' the securities. The bonds state on their face the purpose for which they were issued, and that purpose being a legal one, and the recitals being ample in their showing of compliance with the law, they must be considered negotiable securities, not impeachable in the hands of bona fide holders except for want of jurisdiction in the board of county commissioners. The appellant insists .that upon the trial it offered to show absolute want of power in the county to issue the bonds, but was prevented from making that showing by the erroneous ruling of the trial court. The essential point made is that the county was prohibited by law from issuing bonds of the kind in question in an amount exceeding five per cent of the assessed value of the property of the county, and, on account of the terms of the stipulation of the attorneys filed in the cause, this point is supplemented by the criticism that, assuming all the bonds to be in terms like the one produced and referred to in the stipulation, they must all come due in the same year, namely, thirty-four years from date, and that thus, the amount of principal payable in one year would exceed two per centum of the assessed value of the property of the county at the time of issuing the bonds, contrary to a further prohibition of the first section of the statute. A reference to the terms of the stipulation does not sustain the latter point. stipulation, recites that the bond number 45 is one of the bonds from which the coupons were detached, the said bonds being issued in several series, and all of them in “form, tenor, and recitals substantially like the said bond number 45.” It is not stipulated that they are dated alike, nor that they mature at the same time; it is stated that they were in several series. The presumption is that the bonds were legally issued; therefore that the different series matured in different years, so as to be within the terms of the statute. But these propositions both involve the same legal principle. If the proceedings looking to the county aid contemplated an overissue of the bonds, and no representations by recitals could protect an innocent purchaser, of course the bonds would be void, and the coupons fall with them. The real objection of the county to the payment of the bonds is found right here in the case. Great ability has been shown by counsel in pressing this subject upon the attention of the court, and we have given it great consideration. We have come to the conclusion, however, that, even were the objection that there was an overissue not otherwise untenable, the county failed at the trial to tender legal evidence of the assessed value of the property of the county at the time the bonds originat©d. It seemed to have been assumed by the counsel for the county at the trial that the assessed value to be proved was the last assessment for purposes of taxation prior to the railroad aid proceedings, and they accordingly produced what purported to be the assessor’s register, or list of assessments for the year 1879;' but that book contained erasures, interpolations, alterations, and was objected to on that as well as other grounds. Besides, it was not certified or verified, as required by law, at the time. Prince, St., p. 534. If the railroad aid act referred to the last assessment for purposes of taxation, it intended a valid assessment, not avague, unofficial, illegal document or book. An assessment is a serious thing. It exists only pursuant to law. A pretended assessment, made in defiance of law, is no assessment at all. 1 Desty, Tax’n, pp. 557-581; Cooley, Tax'n, 259-289. The book of assessments made by the assessor in the year 1879, offered on the trial below, being mutilated, and unverified or certified as required by law, was not a valid assessment, and the court was warranted in making that one of the reasons for its rejection as evidence in the case, for the reason that such a record was incompetent to prove a valid assessment, such as would bind a bona fide purchaser for value of negotiable securities, upon the principle of constructive notice, nor was it conclusive of value, as the county commissioners had power to alter it, either by increasing or diminishing. The case mainly relied on by the appellant, that of Dixon Co. v. Field, 111 U. S. 83, is based upon the theory that an assessment, such as referred to in the Nebraska constitution, is a record of which all the world has constructive notice. The court in its opinion refers to two factors present to the purchaser in that case, — one, the assessment, of which he had constructive notice by the record; the other, the extent of the county indebtedness occasioned^ by the bonds of which he had actual notice by the statement of the total amount of such indebtedness upon the face of each bond. The validity of the record and total amount of the assessment in that case was unquestioned, and, each bond showing upon its face the total amount of the issue, it became simply a matter of arithmetical calculation on the part of the purchaser, and which the purchaser was bound . to make, to demonstrate the invalidity of the bonds. The reasoning in that case has no application to a pretended assessment, unverified and uncertified, as required by law, and one which can not operate as constructive notice any better than an unlawfully recorded deed of real estate. ¥e thus find, even if the principle of the Dixon County case could be effective under such a statute as that in question here, it could not be in the absence of proof of a lawful assessment of record. It is not to be inferred from anything said in the opinion of the court in that case, that, in the absence of constructive notice by a lawful record, a purchaser of municipal bonds, containing recitals as broad as these appearing here, is put upon inquiry as to the actual amount of taxable property in a county, and of every fact (aliunde) which might properly be considered by an assessor or by a board of commissioners in coming to a determination or estimate on the subject of taxable values. Such facts are proper to be considered by the county officials in forming their own conclusions as to the amount of taxable property, but the bond purchaser is not called upon to exercise his judgment upon that. This is certainly the effect of the decision in Marcy v. Township of Oswego, 92 U. S. 637, and in many other similar cases.
In the case of Dixon Co. v. Field, 111 U. S. 83, the facts are essentially different from those of the case here. The statute of Nebraska, authorizing donations to be made to railroads, authorized the issue of bonds to an amount not exceeding ten per cent of the assessed valuation of all the taxable property in the county, with the proviso requiring submission of the question of issuing bonds to a vote of the legal voters for the county in the manner provided by law. That act of the legislature was afterward amended on the seventeenth day of February, 1875, so as to require a two thirds majority of the votes cast at the election, instead of a mere majority, to authorize the issuance of bonds. It will be observed that the statute prohibited the issue of bonds exceeding in amount ten per cent of the taxable value of the property in the county. The constitution of Nebraska took effect November 1, 1875. The constitution followed the statute by authorizing donations to railroads, authorized by a. vote of the electors. In its first proviso it restricted such donations to not exceeding ten per cent of the assessed valuation of such county, but in the second proviso to the constitution there was this provision: “That any city or county may, by a two thirds vote, increase such indebtedness five per cent in addition to such ten per cent; and no bonds or other evidences of indebtedness so issued shall be valid unless the same shall have indorsed thereon a certificate signed by the secretary and auditor of state, showing the saméis issued pursuant to law.” The county of' Dixon issued bonds exceeding ten per cent of the admitted assessed valuauation of the property of the county, but less than fifteen per cent; and upon the trial it was insisted that, although the statute only authorized the issuing of bonds to the extent of ten per cent of the assessed valuation of the property of Dixon county, the constitution by its second proviso had the effect of enlarging the statute by construction, and’ thereby legalized the issuing of bonds in excess of the limit prescribed by the statute. The court held in that case that the adoption of the constitution had no such effect, and refused to give it the construction asked for, in support of the bonds; holding that the object of the constitutional amendment was to restrict and prohibit, rather than enlarge, the powers conferred by the statute of Nebraska. In this case there is no restrictive or prohibitive constitutional provision. The powers granted the county of Santa Fe in this case were purely statutory, and this case- clearly falls within the principle of the numerous cases decided by the supreme court of the United States, where bonds were issued in professed conformity to statutory enactments. It will also be observed that in this case the statute does not restrict the county to the granting of aid or subscription for stock to one railroad.
The appellant erroneously assumes that the five per cent limit relates to the amount of aid extended to any railroad corporation, whereas the statute uses the word “railroad,” cualquiera ferrocarril. The statute deals with the subject of aid to construction, or to a railroad, as aid to a definite, tangible thing in rem, rather than aid to a corporation as such. Consistently with the statute, the same corporation which had secured five per cent of aid in the construction of one road might lawfully receive aid in the construction of another road, it being plain that the statute permitted five per cent of aid to the construction of a road by one company, and, also, a like amount of aid in the construction of another road; but, on principle, it makes no difference whether the various roads are constructed by one or several companies. ■ In either case, the county gets the benefit of the railroad improvement in increased facilities for trade and communication, increased population, and increased amount of taxable estate within its jurisdiction; which, undoubtedly, was the object sought to be obtained by the legislature in the passage of the railroad aid act. It accorded aid to the building of railroads, regardless of the owners. In the case of County Com’rs of Santa Fe Co. v. New Mexico & S. P. R. Co., 3 N. M. 120, in considering the validity of a statute of New Mexico exempting railroad property from taxation for six years after completion, Judge Beistol, in delivering the opinion of the court, used the following language, which we deem equally applicable to the present case, as the statute should be construed according to its intent as well as its language: “At that time the territory of New Mexico was the most inaccessible portion of the dominion of the United States to enterprise and commerce. Every branch of industry was languishing, as it had been for centuries, for lack of cheap and rapid transportation to the leading marts of the country. To expend millions in constructing long lines of railway to and through this remote region was a hazardous undertaking; an experiment; a venture which any but the boldest minds would readily shrink from. At that date not a foot of-railroad had been constructed anywhere within the borders of New Mexico. It was under this condition of things that the territory, through its legislative assembly, made a bid for railroads under fair and explicit terms, and upon a consideration of great public importance. As plainly as it could be expressed by acts of the legislative assembly the territory said to all railroad corporations then existing under the laws of the territory, or thereafter to be organized under such laws, that, in consideration of the public benefits to be derived from the construction and operation of railroads within the territory, upon the completion of any such railroad by any such corporation, its corporate property therein and connected therewith shall be exempt from taxation for six years after such completion.” Again, the record discloses the reason why the bonds in this case were authorized to be issued in series, and that there were in fact several series, in that the act evidently contemplated that the bonds might be issued and delivered at different times as the construction progressed. Each bond issued bore upon its face the number of bonds In the series only, and not the entire number of bonds issued in the several series. And it may be further observed that neither of the series issued exceeded in amount the statutory limit, admitting that there was a valid record of the assessed value, and that the purchaser was chargeable with notice of that record. In this case the purchaser of one of the bonds, in any one of the series, could not ascertain or determine, by comparing it with the assessed value of the property of the county of Santa Fe, that there had been an overissue of such bonds, or that they had not been issued in strict conformity to the law under which they professed upon their face to have been issued. There is a marked difference between" this case and the case of Dixon Co. v. Field, in this respect. In the case of Dixon county each bond showed the entire amount of the bonds issued ($87,000), and the purchaser, having the assessed value of the property of Dixon county in one hand, and in the other one of the bonds issued by the county, could ascertain in a moment that there had been an overissue, and consequently an absence of power in the county to issue them. The two factors in the case of Dixo'n county against Field were necessarily before the purchaser of the bonds, even in the- open market, but the two factors were not present to. the purchaser in the open market of the bonds in this case; and more especially is this true when it is admitted by the stipulation that these bonds, and the coupons attached to them, “were, upon their delivery to, and acceptance by, the New Mexico & Southern Pacific Railroad Company, sold by that corporation for value, and purchased by divers persons; and in the year 1883, and from time to time thereafter, the plaintiff acquired the said coupons and bonds for value.”
negotiable in-b“eutobeare1a7a' presumption. ' It will be observed that the electors of the county were clothed with the power to determine the conditions precedent to the issuance of the bonds, except as to the result of the vote, at the election to be held; whether aid shall be given to any railroad or not, and, if so, to what extent, when payable, and the rate of interest, the points from which and to which the railroad shall be constructed, and the terms upon which the aid is granted; and, if the electors so determine, the law further declares, that it “shall be the duty of the probate judge, commissioner, or commissioners,” or, in other words, the legally constituted authorities of the county, who were clothed with the power to determine the result of the vote, to issue the aid as determined by the vote. The law further provides that the authorities of the county whose duty it was to issue the bonds, shall deliver them upon the certificate of the governor as to the completion of part or all of the road, and they shall have the power to require of the railroad company constructing the road, in consideration of the delivery of such bonds, such an amount of stock or other security as may be deemed for the welfare or security of the county. The record discloses that the propositions were submitted upon the request of fifteen owners of property, electors, and taxpayers of the county; and there appears to be no question as to the legality of the elections or the result of the vote, nor that the bonds were issued in conformity to the result of said elections, in the amount, time of payment, interest to be paid, etc. Two separate propositions, two different railroads, constructed from different points within the county, were submitted and voted upon. The certificates of the governor are shown in the record of the completion of different portions of the road, at different times; these certificates having been made evidently for the purpose of authorizing the delivery of the bonds for the portions of the road constructed. The act provided that the bonds should be delivered to the railroad company constructing the road, and, in the absence of any proof to the contrary, it must be assumed that they were so delivered; nor is it disclosed by the record that •the plaintiff in this case was in any way connected with the railroad company that received the bonds, nor that he had any knowledge of the bonds or coupons in question, except such as the law imputed to him. It is a general rule that when the holder of a negotiable instrument regular on its face and payable to bearer produces it in a suit to recover its contents, and the same has been received in evidence, that is a prima facie presumption that he became the holder of it for value at its date, and in the usual course of business. 2 Wall. 110; 22 How. 96; 94 U. S. 753; 95 U. S. 474. “Municipal bonds payable to bearer are subject to the same rules as other negotiable paper.” Pana v. Bowler, 107 U. S. 529. In the present ease there is nothing to rebut the presumption arising from the production of the coupons, that the plaintiff was the prima facie holder of them for value. The bonds and coupons having been floated for value immediately upon their delivery by the county, every subsequent purchaser, whether or not he gave value, whether or not he had notice of any infirmity in the origin of the securities, was clothed with the immunity of his assignor; and even the first purchaser for value can not be impeached as acting mala fides, merely because some of the interest accrued on unmatured bonds is in arrears, failure to pay interest not affecting the negotiability of that class of securities. Obligations of municipalities in the form of those in suit here are placed by numerous decisions of the supreme court of the United States court on the footing of negotiable paper. Cromwell v. County of Sac, 96 U. S. 51.
Coupon bonds of the ordinary kind, payable to bearer, pass by delivery, and a purchaser of them in good faith is not affected by want of title in the vendor. The burden of proof on a question of such faith lies on the party who assails the possession. Possession of such paper carries the title with it to the holder. Possession and title are one and inseparable. Murray v. Lardner, 2 Wall. 121. The plaintiff was the bona fide holder for value of the coupons sued on in this case, and the only defense available for the appellant in this case was the absolute want of power in the corporate authority of the county of Santa Pe to issue the bonds and the coupons involved, in this suit. In Town of Coloma v. Eaves, 92 U. S. 484, it is held that, ‘ ‘where it may be gathered from the legislative enactment that the officers of the municipality are invested with the power to decide whether the condition precedent has been complied with, their recital that it has been made upon the bonds issued by them, and held by a bona fide purchaser, is conclusive of the fact and binding upon the municipality; for the recital is itself a decision of the fact by the appointed tribunal,” the real question involved being whether in the particular case under consideration a fair construction of the law authorized the officers issuing the bonds to ascertain, determine, and certify the existence of the facts upon which their power, by the terms of the law, was made to depend.
That there was a clear and explicit legislative enactment authorizing the county of Santa Pe to issue bonds in the aid of the construction of railroads constructed within the limits of the county, at the time the bonds and coupons involved in this case were issued, there can be no serious question. By the provisions of the railroad aid act the county itself, by a vote of its properly qualified electors, was clothed with the power to determine in what manner and to what extent aid should be given to the constructions of railroads within the county. The law provides that in the proclamations of election all of the propositions to be voted upon and determined by the electors shall be stated and published, the total amount to be issued, the time of payment, the rate of interest, the railroad to which aid is to be granted, and all other matters necessary to fully inform the elector of the matters to be determined by the vote of the people. The county itself, through its electors, determined all questions precedent to the issuing of the bonds, and it then became the duty of the corporate authorities of the county, which at that time was the hoard of county commissioners, to carry out the provisions of the law, and to issue the bonds provided for by the vote of the people. The corporate authorities represent the county, and their act is the act of the county itself, to the extent of its corporate powers, and the people put in motion .the machinery that compelled the corporate authorities to act, to the extent of issuing the bonds involved in this proceeding. In this way the bonds originated, and, so far as the record discloses, no effort was ever made to prevent their issuance or delivery to the railroad company, or prevent their being negotiated, and in that way they became commercial paper upon the open market. The bonds being lawful and negotiable on their face, and the appellee and the prior purchasers who bought them when they were sold by the railroad, company upon their delivery to the company by the county being entitled to the presumption protecting innocent holders of commercial paper, the appellant without showing, or offering to show, that the appellee’s assignors were cognizant of any irregularities, could not be permitted to prove them on the trial, unless they indicated absolute want of power in the county.
ity of act FebrutdeíwiiS: 0 estoppel. We consider the defense, and evidence in support of it, tendered by the appellant, to show the alleged want of power, to have been incompetent. But suppose that the rejected evidence had been admitted, how could it have ' helped the appellant? No constitutional limitation is involved in this case. In New Mexico it was perfectly competent for the legislature to confer upon the county and its officers the power to pass upon all the facts and conditions preliminary to the execution of the bonds. The supreme court of the United States still adheres to the doctrine of the cases of Town of Coloma v. Eaves, 92 U. S. 484; Marcy v. Township of Oswego, 92 U. S. 637; Humboldt Tp. v. Long, Id. 642; Wilson v. Salamanca, 99 U. S. 504; Dallas Co. v. McKenzie, 110 U. S. 680, and other similar decisions, by which it was held that the railroad aid statutes similar to the New Mexico statute conferred by implication upon the county or township officials the power”to consider and adjudicate all such preliminary matters, and to recite their determination on the bonds in terms creating an estoppel against the county or municipality. The language used in the opinion of the court in Comanche Co. v. Lewis, 133 U. S. 206, is applicable to the recitals on the bonds in question. In that opinion Mr. Justice Beewee says: “The recital that the bond was executed and issued in pursuance of, and in accordance with, that act [the authorizing statute], and also in accordance with the vote of the majority of the qualified electors, is, within the repeated rulings of this court, sufficient to validate the bonds in the hands of a bona fide holder.” In the case of Township of Bernards v. Morrison, decided March 3, 1890, and reported in 10 Sup. Ct. Rep. No. 17, p. 333, the court says, by Mr. Justice Beewee: “It were useless to refer to the long list of cases in which recitals like these have been held sufficient to sustain bonds in the hands of bona fide holders. While it is true that the act does not in terms say that these commissioners had the right to decide that all the preliminary conditions have been complied with, yet such express direction and authority is seldom found in acts providing for the issuing of bonds. It is enough that full control in the matter is given to the officers named.” In the case of Oregon v. Jennings, 119 U. S. 74-92, the rule is thus stated by Mr. Justice Blatchfoed: “Within the numerous decisions of this court on the subject, the supervisor and the town clerk, they being named in the statute as the officers to sign the bonds, and the corporate authorities to act for the town in issuing them to the company, were the persons intrusted with the duty of deciding, before issuing the bonds, whether the conditions determined at the election existed, and then certify to that effect in the bonds. The town is estopped from asserting, as against a bona fide holder, that the conditions prescribed by the popular vote were not complied with. Whatever may be the hardships of this particular case, to sustain the defendants would go far toward destroying the market value of municipal bonds.” Several of the cases above cited expressly hold that under such statutes the defense of an overissue can not be set up against such recitals. The Dallas County Case, 110 U. S. 686, was decided almost at the same time with the Dixon county case, and it follows the prior cases on the subject, the chief justice saying that “in those cases it was expressly decided that municipal bonds were not invalid in the hands of a-bona fide holder, by reason of their having been voted and issued in excess of the statutory limit, if the recitals imported a valid issue.” In Supervisors v. Schenck, 5 Wall. 772, in giving the opinion of the court, Mr. Justice Clifeoed says: “Argument of the defense proceeds upon the ground that, if they can show that the order for the election emanated from the wrong source, the plaintiff, although an innocent holder for value can not recover; but it is clear that in a case like the present, where the power to issue bonds was fully vested in the corporation, the proposition can not be sustained. On the contrary, it is settled law that a negotiable security of a corporation, which upon its face appears to have been duly issued by such corporation, in conformity with the provisions of its charter, is valid in the hands of a bona fide holder thereof without notice, although such security was in point of fact issued for a purpose and at a place not authorized by the charter of the corporation.” In Mayor v. Lord, 9 Wall. 409, Mr. Justice Swayne said: “In that event, if the bonds could 'have been properly issued under any circumstances, he [an innocent purchaser] had a right to presume they were so issued, and as against him the city is estopped to deny their validity.” In Mercer County Case, 1 Wall. 92, 93, Mr. Justice Gteieb says: “The bonds declare on their face that the faith and credit and property of the county are solemnly pledged under the authority of certain acts of the assembly, and that in pursuance of said acts the bonds were signed by the commissioners of the county. They are on their face a complete and perfect exhibit, no defect in form or substance, and the evidence offered is to show the recitals on the bonds are not true; not that no law exists to authorize their issue, but that the bonds were not made in pursuance of the acts of the assembly authorizing them.” In the case of Commissioners of Knox v. Aspinwall, 21 How. 545, it is said that “where the bonds on their face import compliance with the law under which they were issued, the purchaser is not bound to look further. The decision of the board of county commissioners may not be conclusive in a direct proceeding to inquire into the facts before the rights and interests of the parties had attached, but, after the authority has been executed, the stock subscribed, and the bonds issued, and in the hands of innocent holders, it would be too late, even in a direct proceeding, to call it in question. These securities are treated as negotiable in the commercial usages of the civilized world, and have received the sanction of judicial recognition. Although we doubt not the facts stated as to the atrocious frauds which have been practiced in some counties in issuing and obtaining these bonds, we can not agree to overrule our own decisions, and change the law to suit hard cases.” In City of Lexington v. Butler, 14 Wall. 282, the court say: “The repeated decisions of this court have established the rule that, when a corporation has power, under any circumstances, to issue negotiable securities, the bona fide holder has a right to presume that they were issued under the circumstances which gave the requisite authority, and that they are no more liable to be impeached for any infirmity in the hands of such a holder than any other commercial paper.” In San Antonio v. Mehaffy, 96 U. S. 312, the court said: “The holder of commercial paper, in the absence of proof to the contrary, is presumed to have taken it underdne, for a valuable consideration, and without notice of any objection to which it was liable. This shuts the door, as a matter of law, to all inquiry touching the regularity of the proceedings of the officers charged with the duty of subscribing and making payment in the way prescribed. The rule in such case is that, if the municipality could have had the power, under any circumstances, to issue the securities, the bona fide holder has the right to presume that they were issued under the circumstances which gave the authority, and they are no more liable to be impeached in his hands for any infirmity than any other commercial paper.”
Three cases have been cited by the appellant, and apparently relied -upon, in support of the proposition that the recitals do not work an estoppel. In each of the cases a constitutional limitation was involved. In the case of Buchanan v. City of Litchfield, 102 U. S., the bonds contained no estopping recitals, and did not even contain a statement of the purpose for which they were issued. Hence, the court said in that case that, “when a municipal bond does not bear upon its face a statement of the lawful purpose for which it was issued, or recitals estopping the municipality, it is necessary for the plaintiff, in a suit upon the bonds, or upon the interest coupons, to aver and prove that they were issued under legislative authority, and in the mode and for the purposes provided by law.” The case of Dixon Co. v. Field we have already referred to. The third case, Lake Co. v. Graham, 130 U. S. 674, also involved a constitutional limitation. In the opinion of the court it is said: “The question here is distinguishable from that in the eases relied on by the counsel for the defendant in error. In this case the standard of validity is created by the constitution. In this standard two factors are to be considered — one the amount of the assessed value; and the other the ratio between the assessed value and the debt proposed. These being the exactions of the constitution itself, it is not within the power of the legislature to dispense with them, either directly or indirectly, by the creation of a ministerial commission whose findings shall be taken in lieu of the facts. In the case of Sherman Co. v. Simon, 109 U. S. 735, and others like it, the question was one of estoppel, as against the exaction imposed by the legislature; and the holding was that the legislature, being the source of the exaction, had created a board authorized to determine whether its exaction had been complied with, and that its finding was conclusive to a bona fide purchaser. So, also, in Oregon v. Jennings, 119 U. S. 74, the condition violated was not one imposed by the constitution, but one fixed by the subscription contract of the people.” In the case of Potter v. Chaffee Co., 33 Fed. Rep. 615, Mr. Justice Bbeweb, in deciding the case, uses the following language with reference to the ease of Dixon Co. v. Field: “I suppose the universal voice of the bar would affirm that the supreme court had settled beyond any question that recitals as full and complete as these estopped a county from denying the validity of the bonds in the hands of a bona fide purchaser. It has been supposed by some that this case of Dixon Co. v. Field has reversed prior decisions, and established a new rule. I am frank to say that I think it is quite difficult to appreciate the distinction which Mr. Justice Matthews draws between that case and the case of Marcy v. Township of Oswego, 92 U. S. 637, but, even with the rule as laid down in Dixon Co. v. Field, it will not avail the defendant in this case.” The court does not overrule the case of Marcy v. Township of Oswego, 92 U. S., and numerous other cases of a similar import, but distinctly says that the decision is in harmony with the decision in the case of Marcy v. Township of Oswego. In giving the opinion of the court in the case of Dallas Co. v. McKenzie, 110 U. S. (the case being decided at the same term as that of Dixon Co. v. Field), Mr. Chief Justice Waite says: “In Marcy v. Township of Oswego, 92 U. S. 637, and Humboldt v. Long, Id. 642, and also in Wilson v. Salamanca, 99 U. S. 504, it was expressly decided that municipal bonds were not invalid in the hands of a bona fide holder by reason of their having been voted and issued in excess of the statutory limit, if the recitals imported a valid issue.
It is an admitted fact in this case that McKenzie, the defendant in error, is a bona fide holder for value of the coupons sued on; and the recitals,, which are almost in the exact language of Wilson v. Salamanca, supra, imply authority for the issue of the bonds from which they were cut. Consequently in this case the excessive issue is no defense.” This matter of an excessive issue is the real defense in this case here. It is urged by the appellant that, by reason of an excessive issue, there was a want of power in the county of Santa Fe to issue the bonds and coupons in question in this case. It seems to us that these cases are decisive of this one. The recitals in the present case certainly imported a valid issue, and we hold the bonds to be valid on the same grounds upon which similar bonds were held valid in the cases cited. They were floated on the faith of the law, as expounded by the supreme court at the time they were issued, and that law protects them. The bonds not having been affected by any constitutional or other jurisdictional invalidity, the appellee is protected, not only by the recitals, but by the reeognition of the bonds by the county as valid and subsisting securities for a long series of years. The failure to take any steps in equity or otherwise to redress any wrong done the county by their issue, or to avoid their negotiation, and the actual levy and collection of taxes for the payment of the interest from year to year, and the payment of $36,000 of the interest upon these véry securities, furnish additional grounds of estoppel, according to numerous authorities. Anderson County Commissioners v. Beal, 113 U. S. 227; Supervisors v. Schenck, 5 Wall. 772. When the bonds were issued and delivered, in pursuance of the vote of the people of Santa Fe county, a contract was entered into to which the county was a party. The object sought was obtained when the railroad to which the aid was granted was constructed and the bonds were delivered. The acquiescence shown by the appellant by its failure to take any steps to avoid the contract or the securities, or prevent their negotiation, and its recognition of the validity of the contract entered into by the issuance of bonds and the coupons attached to them, as shown by the levy and collection of the taxes for the specific purpose of paying the interest thereon, removes from this court any desire which it might, under other circumstances, have to relieve the county from its legal obligation, and upon the facts presented in this record we decline to do so. The judgment, it is true, provides for the issue of execution, but that is a mere irregularity which will not work a reversal of this case. The judgment is enforcible by tax levy as a part of the general levy, or by special levy, as already decided by this court in Laughlin v. County of Santa Fe, 3 N. M. (Gil.) 420, the provision for the payment of the principal and interest of the bonds as contained in the railroad act entering into the contract, and not having been repealed when the bonds were issued. Roll County Court v. U. S., 105 U. S. 733. Holding that the defense set up in this ease was unavailing, and the evidence rejected in the court below was inadmissible, and therefore properly excluded, we agree with the trial judge in his ruling that the case below presented a state of facts upon which the appellee was entitled to the verdict rendered under the instructions of the court. Armijo v. New Mexico Town Co., 3 N. M. 244; Delaware & Lackawana Railroad Co. v. Converse, 139 U. S. 469, 11 Sup. Ct. Rep. 569. The judgment appealed from is therefore affirmed, with costs against the appellant.
O’Brien, C. J., and Seeds and Lee, JJ., concur.