Opinion
No. 33545.
January 30, 1939.
1. MUNICIPAL CORPORATIONS.
Where decree validating water system bonds recited all of necessary jurisdictional facts, fact that decree bore date of May 12 did not establish that notice to taxpayers published on June 6 and fixing June 12 as date for hearing was not published prior to hearing before chancellor (Laws 1920, chapter 206, section 2.)
2. MUNICIPAL CORPORATIONS.
Where chancellor had jurisdiction of proceeding to validate municipal water system bonds after decree of validation, statute regarding validation foreclosed all objections that could have been urged before chancellor including objection that no notice was given to taxpayers (Laws 1920, chapter 206; Code 1930, section 314).
3. MUNICIPAL CORPORATIONS.
Decree validating municipal water system bonds could not be collaterally attacked where it adjudicated all of facts necessary to show validity and was rendered by court of competent jurisdiction (Laws 1920, chapter 206; Code 1930, section 314).
APPEAL from the circuit court of Newton county; HON. D.M. ANDERSON, Judge.
R.H. Day and Stone Stone, all of Decatur, for appellant.
A void judgment or decree may be assailed in any court and in any action.
Pease Dwyer Co. v. Somers Plant Co., 130 Miss. 147; Lbr. Mfg. Co. v. Quitman County, 166 Miss. 396; Smith v. Deas, 158 Miss. 111.
All persons buying municipal bonds are presumed to know the law, are presumed to know that the authority of a municipality to issue bonds at all is an authority delegated by the legislature; and they are presumed to know the conditions imposed upon the mayor and aldermen to make the bonds legal. They are presumed to know that the records of the mayor and aldermen of the Town of Decatur will reflect what authority, if any, the board had to issue the bonds sued on. Can they rely upon the recitals in the bonds signed by the two officers or agents of the municipality, and refuse to look to the municipal minutes where the law requires a record to be kept showing the facts disclosing the truth or falsity of the recitals in the bonds? We concede that an individual would be estopped to deny recitals in his contract upon which he received money and would be required to pay. But the board of a municipality is contracting for the taxpayers to pay the bonds out of their own funds; and the statute provides that this cannot be done without statutory notice to them and an opportunity for them to act thereon.
10 R.C.L. 706, sec. 34; Sykes v. Mayor of Columbus, 55 Miss. 115; Katzenberger v. City of Aberdeen, 30 L.Ed. 911.
A municipal board has no authority to bind the taxpayers to the payment of an issue of bonds without first giving to such taxpayers notice of its intention to issue bonds, and an opportunity to be heard. The board's delegated authority is conditioned upon this, and we insist that the condition is a jurisdictional one. We further insist that the attempted ratification of said bonds is without effect because the Chancellor had no jurisdiction of either the subject matter or the parties sought to be required to pay the bonds, when the decree was rendered.
W.M. Hutto, of Waynesboro, for appellee.
When the Chancery Court enters an order validating bonds for a county, municipality or school district, and if no appeal taken or if the Supreme Court affirms the decree of the Chancellor, the validity of bonds so issued shall be forever conclusive against the county, municipality or school district, and shall never be called into question in any court in this State. In our opinion Section 314, Chapter 10, Laws of 1930 settles this case insofar as between the appellee and the appellant in all the courts of Mississippi.
Where bonds issued by county, municipality or school district, even though without authority, under the law, are binding and valid and without attack as to validity.
Parker v. Grenada County, 125 Miss. 617, 88 So. 172.
No inquiry can be made into proceedings to validate bonds, where certain lands were left out by the board of supervisors.
Prentiss County v. Holley, 141 Miss. 432, 106 So. 644.
Where a void recital in a municipal bond is made, said void recital does not render the municipal bond void.
Pontotoc v. Fulton, 79 Miss. 511, 31 So. 102; Lexington v. Union National Bank, 75 Miss. 1, 22 So. 291.
Bona fide holders of municipal bonds, regular on their face, are protected against informalities and irregularities in proceedings authorized in the issuance of the bonds from mistakes made by the municipal authorities.
Green v. Rienzi, 87 Miss. 463, 40 So. 17.
We submit that all that the appellant are complaining of in this case is mere mistakes, informalities and irregularities, not jurisdictional, made by the Mayor and Board of Aldermen of the Town of Decatur in the issuance of the bonds sued on in this case, a wrong if any made, made by themselves, perpetrated upon the public, in which they are now trying to take advantage of, and the above case, decided by this court, clearly prohibits them from taking advantage of their own mistakes, to do otherwise would be a travesty upon justice.
Section 314, Code of 1930.
Where the former decree of the Chancery Court, following the pleadings and the proof, and adjudicating all matters in litigation, includes all matters, that might and should have been pleaded and proven, precludes the defendants from attacking the former decree, in a subsequent proceeding, and if the matters complained of had not been pleaded, considered and adjudicated by the lower court, it should have been pleaded and adjudicated, and is res adjudicata. This is the well established rule of law in Mississippi.
Vinson v. Colonel U.S. Mtg. Co., 76 So. 827.
It was the business of the town of Decatur to see to it that all things necessary to be done in the issuance of the bonds should have been done and all things necessary adjudicated by the Chancery Court, and they now cannot be heard to collaterally attack the decree validating the bonds in question. The matter in issue in the first decree is concluded and is res adjudicata.
Sculley v. Lowenstein, 56 Miss. 652.
The matters and things involved in the record in the former case and being so involved might have been litigated between the interested parties and is res adjudicata.
Hubbard v. Flynt, 58 Miss. 266; 38 Wisc. 651.
Under the doctrine of estoppel the defendant will be prohibited to take advantage of his unlawful and fraudful acts or wrongdoings.
Currie McGraw v. Friedman, 100 So. 273.
On May 1, 1929, the town of Decatur issued a series of bonds, aggregating the sum of $20,000, for the purpose of constructing a waterworks system under the authority of the statutes contained in the Code chapter on municipalities, section 2369 et seq., including, among others, Chapter 206 of the Laws of 1920. On May 25th, the town authorities ordered that proceedings be instituted to validate the bonds. Accordingly the matter of the bond issue proceedings were submitted to the state bond attorney for his opinion as to their validity. His opinion approving their validity was dated at Jackson, Mississippi, on May 27th. The proof of the publication of the notice to the taxpayers is dated on June 7th, and states that the notice thereto attached was published in the issue of a local newspaper of June 6th, and such notice fixes June 12th as the date for the hearing of the validating proceedings before the chancellor. The proof was not marked "filed" by the chancery clerk until July 31st, but the decree of the chancellor recites that the notice had been legally given and published as required by law, and that it required objections to be filed to the validation of the bonds "by this time and that none have been filed." The decree of validation further recites that "the transcript shows that all of the proceedings of the board in the matter of the issuance of said bonds were in strict accordance with the Constitution and laws of the state of Mississippi, . . . and pursuant to lawful resolutions, ordinances and proceedings of the board." The decree also recites the fact that the bonds were ordered issued at the April 1929 meeting of the mayor and aldermen; and that at a legal special meeting of the board held May 25 they were ordered validated.
The validation decree however appears on its face to have been dated and signed by the chancellor on May 12, in advance of the date the bonds were ordered validated, and of the date of the state bond attorney's opinion, and of the date set for hearing in the notice published to the taxpayers. It is therefore manifest that the decree was actually signed on June 12th, at the county courthouse at Newton, where it was marked filed as of that date. The law provides that the decree of validation is to be prepared by the state bond attorney, and the date given it was evidently a typographical error. It makes reference to the state bond attorney's opinion which was not dated until May 27th, as hereinbefore stated.
Appellee, being the purchaser and owner of two of the bonds in question for the sum of $1,000 each, the payments of which were in default and had been refused, brought suit to recover the amount of the bonds with accrued interest. The town filed with its plea of the general issue two special pleas, alleging in the first plea that no order or resolution had been spread upon the minutes of the board declaring an intention to issue the bonds, and that no notice to the taxpayers had been given prior to the issuance thereof, as required by Section 2 of Chapter 206 of the Laws of 1920, and in the second plea, that the decree of validation was void on the ground that the decree appears to have been dated and signed prior to the rendition of the opinion of the state bond attorney and the publication of the notice to the taxpayers of the hearing on the validation proceedings. The decree of validation, opinion of the state bond attorney and proof of notice to the taxpayers, showing the facts heretofore stated, were made an exhibit to the second plea. Demurrers were sustained to both pleas, and appellant declined to plead further. Judgment was rendered by the jury on proof of the indebtedness sued for, and from which this appeal is taken.
The decree of validation recites all of the necessary jurisdictional facts, and we do not think that the fact that it erroneously bears date of May 12th instead of June 12th, evidently due to a typographical error, shows that the notice to the taxpayers in that proceeding was not published as required by law prior to the hearing before the chancellor.
No appeal was taken from the decree validating the bonds. Section 314 of the Code of 1930, governing this case, reads as follows: "If the chancellor shall enter a decree confirming and validating said bonds and there shall be no appeal by either party from said decree, or if on appeal the Supreme Court enters its decree confirming and validating said bonds, or other written obligations, the validity of said bonds, or other written obligations so issued shall be forever conclusive against the county, municipality or district issuing same, and the validity of said bonds, or other written obligations, shall never be called in question in any court in this state." After a decree of validation, this statute forecloses all objections that could have been urged before the chancellor at the hearing of the proceedings as to the validity of the bonds, where he had jurisdiction of the subject matter and the parties, including the objection that no notice was given to the taxpayers in regard to the board's intention to issue the same. Moreover, the decree cannot be collaterally attacked. Instead of appearing to be void on its face, it adjudicates all of the facts necessary to show its validity, and was rendered by a court of competent jurisdiction.
Also, the questions here raised must be decided adversely to appellant under the authority of the case of Parker v. Board of Supervisors of Grenada County, 125 Miss. 617, 88 So. 172.
Affirmed.