(dissenting). I concur in the contusion that defendant is a public corporation, distinct from that of the city of Huron. The act providing for its creation expressly authorized the issuing of bonds for the purposes recited in the bonds in suit, upon a vote of the people, which the answer admits was had, and they seem in form, to meet all the requirements of the statute (Comp. Laws, §§ 1830-1882). But defendant alleges “that neither at the time of the issuance of the bonds mentioned and described in plaintiffs complaint, nor at any' other time, either before the issuance of said bonds, nor since the issuance thereof, has there been any provision made either by the city of Huron, the municipal corporation proper, or by the board'of education of the city of Huron as a department thereof, or otherwise, for an annual tax sufficient to pay the interest, and also the principal thereof, when due, or any part thereof, as required by Section 5 of Article 13 of the constitution of the St^te of South Dakota; and no resolution or action whatever was ever taken by any board or any authority of said 'city, or of the board of education, for providing for any tax for the payment of the principal or interest and coupons of the bonds mentioned and described in plaintiff’s complaint *551heroin, nor of the indebtedness purporting to be represented thereby.’ Counsel for appellant concedes that, in the absence of any recital in the bonds of compliance with this constitutional provision, the foregoing averments of the answer would constitute a complete defense in an action upon the bonds, even in the hands of a bonaflde holder, but contends that defendant is estopped by the recitals. If it was conceded below, as it is here,- — and presumptively it -was, — that in the absence of recitals the averments of the answer above quoted would constitute a defense, a different theory should not be adopted for the purpose of reversing the lower court. Noyes v. Brace, 9 S. D. 603 , 70 N. W. 846; Graham v. Selbie, 10 S. D. 546, 74 N. W. 439. And I think the answer does state a defense, unless defendant is estopped by the recitals. As I understand the decisions from the supreme courts of Illinois and the United States cited in the majority opinion, the validity of the bonds was not involved, and they are not authority for the proposition that valid bonds may be issued, under our constitution, without any provision having been made for their payment. If this" provision of our state constitution is mandatory, its effect upon the corporation is precisely the same as the corresponding provision of the Texas constitution. In both instruments the corporation is commanded to make provision, at or before incurring any indebtedness, for its payment. One command is not less imperative than the other and in neither constitution is the effect of disobedience expressly declared. To hold that valid indebtedness may be incurred in either state without complying with the constitutional requirement is to confess that it is not mandatory, because the express command of the organic law to make provision for payment at or before *552the indebtedness is incurred is not complied with by permitting or requiring such provision to be made at any subsequent time. Therefore it seems to me that the limitation of power here is substantially the same as in Texas. In discussing the effect of recitals thereunder, the supreme court of that state makes use of the following forceful and logical language: “A city cannot create a debt unless the power to do so is either expressly or impliedly conferred upon it by law. If the law prohibits the creation of a debt for any purpose, then no attempt to create one would have any force. If the law permits the creation of debts for specified purposes only, an attempt to create one for a purpose not specified would be without validity. If the law authorizes the creation of debt for a specified purpose, but limits the amount and prescribes the manner of creating such debt, any attempt to create one greater than the amount specified, or without substantially observing the regulations prescribed, would be equually without force. When the law makes the existence of the power to issue bonds depend upon the existence of a given state of facts, which depend for proof of their existence upon parol evidence, and appoints a tribunal to ascertain the facts, and to create the debt and issue negotiable bonds if it finds that the required facts exist, and the bonds are issued, and contain recitals that the facts existed, that conferred authority 1o issue them, and such negotiable bonds go into' the hands of bona fide holders, they are collectible, notwithstanding the nonexistence of the facts required to confer the authority to issue them. In such cases the validity of the bonds does not exist in disregard or violation of the law, but because the ascertainment of the facts that confer the power has been delegated to the body that issues them, and its *553ascertainment of the facts is held to be conclusive in favor of the innocent holders of the negotiable securities, against which no evidence will be heard. But when the authority to create a debt at all, or beyond a given amount, is made to depend upon evidence furnished by official records, the same rule with regard to recitals contained in bonds given for the debts should not be applied. Every holder of such bonds is charged with knowledge of all provisions of law relating to their issuance, and if the law points to records as evidence of the existence of the facts required 1o authorize their issuance, or to limit the amount of the debt that the city may create, such records, and not the recitals in the bonds, must be looked to by everybody who proposes to dealin thebonds. While our constitution authorizes the creation of a debt and the issuance of its negotiable bonds by the defendant city to provide for constructing waterworks, its mandate is imperative that no such debt shall be created without making provision at the time of its creation to assess and collect annually a sufficient sum to pay the interest thereon, and create a sinking fund of at least 2 per cent, on the principal. Until that is done, the debt is not created, and none exists. If not forbidden by any other provision of the constitution, the levy may provide for the collection of a greater sum than the interest contracted for,and 2 per cent, additional, but it cannot be less than that. The language is plain and unambiguous, and in relation to cities the command is twice given. The provision must be sufficient when made. If subsequently it becomes more or less than sufficient, the validity of the obligation would not be affected. The command of the constitution that no debt shall be created without' at the same time providing for the levy and collection of a tax for its pay*554ment was evidently designed not more to insure the payment of honest debts, than to admonish the people, whose property was being charged with them, of that fact. The other provision limiting the amount of debt that cities can charge themselves with had its foundation in a wise public policy These constitutional restrictions were made for observance, not evasion. A disregard of them by the attempted creation of unlawful debts, either on account of the purpose or the amount, may lead to serious complications in the administration of the affairs of the municipal government, growing out of questions that they may give rise to, as to whether the property of delinquent tax^iayers can be sold so as to confer any right upon the purchaser, when the void debt enters to any extent into the tax for which the sale is made. When the debt is void in its inception for want of authority to create it, no subsequent ratification of it by the collection of taxes or otherwise can give to it any validity; nor can there be such a thing as a bona fide holder of the obligations, with a right to collect them, notwithstanding the want of power in the city to create the debt.” Citizens’ Bank v. City of Terell, 14 S. W. 1003.
The view taken by the state court in Texas is approved by the federal court of aippeals of the fifth circuit, and is, we think, sustained by the decisions of the United States supreme court. Quaker City Nat. Bank v. Nolan Co., 14 C. C. A. 157, 66 Fed. 883. In Dixon Co. v. Field, Mr. Justice Matthews, speaking for the federal sujireme court, says: “Recurring, then, to a consideration of the recitals in the bonds, we assume, for the Xiurposes of this argument, that they are, iu legal effect, equivalent to a rexiresentation or warranty or certificate on the part of the county officers that everything necessary by law to be *555done has been done, and every fact necessary by law to have existed did exist, to-make the bonds lawful and binding. Of course, this does not extend to or cover matters of law. All parties are equally bound to know the law; and a certificate reciting the actual facts, and that thereby the bonds were conformable to the law, -when, judicially speaking, they are not, will not make them so, nor can it work an estoppel upon the county to claim the protection of the law. Otherwise it would always be in the power of a municipal body, to which power was denied, to usurp the forbidden authority, by declaring that its assumption was within the law. This would be the clear exercise of legislative power, and would suppose such corporate bodies to be superior to the law itself. And the estoppel does not arise except upon matters of fact which the corporate officers had authority by law to determine and to certify. It is not necessary, it is true, that the recital should enumerate each particular fact essential to the existence of the obligation. A general statement thatthe bonds have been issued in conformity with the law will suffice, so as to embrace every fact which, the officers making the statement are authorized to determine and certify. A determination and statement as to the whole series, where more than one is involved, is a determination and certificate as to each essential particular. But it still remains that there must be authority vested in the officers by law as to each necessary fact, whether enumerated or nonenumerated, to ascertain and determine its existence, and to guaranty to those dealing with them the truth and conclusiveness of their admissions. In such a case the meaning of the law granting power to issue bonds is that they may be issued, not upon the existence of certain facts, to be ascertained and determined when*556ever disputed, but upon the ascertainment and determination of their existence by the officers or body designated by law to issue the bonds upon such a contingency. This becomes very plain when we suppose the case of such a power granted to issue bonds upon the existence of a state of facts to be ascertained and determined by some persons or tribunal other than those authorized to issue the bonds. In that case it would not be contended that a recital of the facts in the instrument itself, contrary to the finding of those charged by law with that duty, would have any legal effect. So, if the fact necessary to the existence of the authority was by Jaw to be ascertained, not officially by the officers charged with the execution of the power, but by reference to some express and definite record of a public character, then the true meaning of the law would be that the authority to act at all depended upon the actual objective existence of the requisite fact as shown by the record, and hot upon its ascertainment and determination by any one; and the consequence would necessarily follow that all persons claiming under the exercise of such a power might be put to proof of the fact, made a condition of'its lawfulness, notwithstanding any recitals in the instrument. This principle is the essence of the rule declared upon this point by this court in the well considered words of Mr. Justice Strong in Town of Coloma v. Eaves, 92 U. S. 484, 23 L. Ed. 579, where he states (page 491, 92 U. S., and page 582, 23 L. Ed.) that it is ‘where it may be gathered from the legislative enactment that the officers óf the municipality were invested with the power to decide whether the condition precedent has been complied with’ that ‘their recital that it has been made in the bonds issued by them, and held by a bona fide purchaser, is conclusive of the fact, and *557binding upon the municipality; for the recital is itself a decision of the fact by the appointed tribunal.’ The converse is embraced in the proposition, and is equally true. If the officers authorized to issue bonds upon a condition are not the appointed tribunal to decide the fact which constitutes the condition, their recital will not be accepted as a substitute for proof. In other words, where the validity of the bonds depends upon an estoppel claimed lo arise upon the recitals of the instrument, the question being as to the existence of power to issue them, it is necessary lo establish that the officers executing the bonds had lawful authority to make the recitalg, and to make them conclusive. The very ground of the estoppel is that the recitals are the official statements of those to whom the law refers the public for authentic and final information upon the subject. This is the rule which has been constantly applied by this court in tlm numerous cases in which it has been involved. The differences in the result of the judgments have depended upon the question 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, — not including, of course, that class of cases in which the controversy related, not to conditions precedent on which the right to act at all depended, but upon con-conditions affecting only the mode of exercising a power admitted to have come into being. Marcy v. Oswego Tp., 92 U. S. 637, 23 L. Ed. 748; Commissioners v. Bolles, 94 U. S. 104, 24 L. Ed. 46; Commissioners v. Clark, 94 U. S. 278, 24 L. Ed. 59; Warren Co. v. Marcy, 97 U. S. 96, 24 L. Ed. 977; Pana v. Bowler, 107 U. S. 529 2 Sup. Ct. 704, 27 L. Ed. 424. In the *558present case there was no power at all conferred to issue bonds in excess of an amount equal to ten per cent, upon the assessed valuation of the taxable property in the county. In determining the limit of power, there were necessarily two factors, — the amount of the bonds to be issued, and the amount of the assessed value of the property for purposes of taxation. The amount of the bonds issued, was known. It is stated in the recital itself. It. was §87,000. The holder of each bond was apprised c.f that fact. The amount of the assessed value of the taxable property in the county is not stated; but ex vi termini, it was ascertainable iu one way only, and that was by reference to the assessment itself, — a public record equally accessible to all intending purchasers of bonds as well as to the county officers. This being known, the ratio between the two amounts was fixed by an arithmetical calculation. No recital involving the amount of the assessed taxable valuation of the property to be taxed for the payment of the bonds can take the place of the assessment itself, for it is the amount, as fixed by reference to that record, that is made by the constitution the . standard for measuring the limit of the municipal power. Nothing in the way of inquiry, ascertainment, or determination as to that fact is submitted to the county officers. They are bound, it is true, to learn from the assessment what the limit upon their authority is, as a necessary preliminary in the exorcise of their functions and the performance of their duty; but the information is for themselves alone. All the world besides must have it from the same source, and for themselves. The fact as it is recorded in the assessment itself is extrinsic, and proves itself by inspection, and concludes all determinations that contradict it.” 111 U. S. 83 4 Sup. Ct. 315, 28 L. Ed. 360. Much of the foregoing *559language is quoted with approval in Lake Co. v. Graham, 130 U. S. 674, 9 Sup. Ct. 654 32 L. Ed. 1065. The federal court of appeals in the eighth circuit employs this language, citing-numerous authorities in support of its position: “It has frequently been held that municipalities will not be estopped by recitals contained in bonds, unless the recitals relate to matters of fact which it may fairly be presumed that the officers of the municipality wens left to determine. And the later decisions on this subject distinctly announce that recitals cannot be relied upon as an estoppel where the facts recited are matters of public record, and are open to the inspection of every one disposed to make inquiries.” Coffin v. Board, 6 C. C. A. 288, 57 Fed. 137. The same court having occasion to pass upon the validity of the series of bonds involved in this action, held the defendant was estopped by their recitals from proving that the board of education did not, at or before the time of issuing or selling them, provide for the collection of an annual tax to pay the interest and principal thereof when due. After citing-authorities and discussing this branch of the case at length, that learned court concludes as follows: “In view,of the rule these authorities establish and illustrate, there is no longer any difficulty in disposing of the question we have been considering. Full power to perform the condition precedent that was not fulfilled in the case before us, and to make a lawful issue of the bonds, was vested in this board of education. The constitution and statute intrusted lo this board the power, and imposed upon if the duty, to ascertain and determine, before it issued the bonds, whether or not this condir.ion had been performed. Neither the statute nor the constitution referred the purchaser to or required any public record of the performance *560of this condition before or at the time of the issue of the bonds, other than the act of the board in issuing them. The board not only had special means of knowledge* regarding the performance of this condition, but it had absolute knowledge; for the board alone could perform the condition, and the.purcbaser had a right to assume that it knew and truthfully certified to what it had itself done. This board, by the act of issuing the bonds, decided that this and all other conditions precedent to their issue had been performed. It certified that fact on the face of the bonds it issued, and bona fide purchasers have bought them. The defendant corporation cannot now be heard to deny the truth of this certificate, to their prejudice. The case falls far within the rule adopted by the supreme court. That rule commends itself to our judgment as just and equitable, and the long line of decisions in that court affirming it has foreclosed all discussion of the rule itself in the national courts.” 10 C. C. A. 637. 62 Fed. 778.
The principles upon which this controversy must be determined are stated with peculiar clearness and felicity in the foregoing quotation. The federal court says: “The constitution and statute intrusted to this board the power, and imposed upon it the duty, to ascertain and determine, before it issued the bonds, whether or not this condition had been performed. Neither the statute nor the constitution referred the purchaser to or required any public record of the performance of this condition, before or at the time of the issue of the bonds, other than the act of the board in issuing them. ” If these assertions are well founded, the conclusion of the national court is certainly correct. But, with all due deference to Che distinguished jurists who rendered the opinion, I am *561disposed to adopt a different view. Recurring to the constitution, it will be observed that instrument did require something more than the act of issuing the bonds. It required the defendent corporation to provide, at or before the time of issuing the bonds, for the collection of an annual tax sufficient to pay the interest and also the principal thereof, when due. This clearly required the making of a jjublic record. It was the duty of the clerk of the board to keep an accurate journal of its proceedings. Comp. Laws, § 1820. The board could not provide for an annual tax without recording its action in the journal of its jn-oceedings, and thus making a public record, open to the inspection of every one disposed to make inquiries. Whether or not such public record existed when these bonds were issued is not a fact dependent upon the ascertainment or determination of defendant’s officers. It was a fact necessary to the existence of the authority to issue any bonds, and that authority depended upon the actual objective existence of the requisite fact — the existence of the record itself. Every purchaser of these bonds is bound to know the extent of power possessed by the corporation issuing them. He is bound to know that the defendant was without authority to issue any bonds until a public record existed, providing for the collection of an annual tax to pay them. There is no greater hardship in requiring him to ascertain whether such record existed, than to require a purchaser of bonds to ascertain the amount of taxable property of a municipality as shown by its assessment rolls. In principle, there is no distinction between the two classes of cases. Upon principle and authority, I think the recitals in these bonds do not estop defendant from proving its alleged defense as to provision not having been made *562for the collection of an annual tax, and that plaintiff’s demurrer was properly overruled. The effect of holding otherwise would be to practically annul one of the plain provisions of the state constitution. The judgment below should be affirmed.