SYRACUSE TP., HAMILTON COUNTY, KAN., v. ROLLINS, 104 F. 958

GALDWTELL, Circuit Judge, after stating the case as above, delivered the opinion of the court. Six of the assignments of error are to the effect that the facts found by the trial court are not supported by the evidence. But it is well settled that when the trial court to which a cause has been submitted makes a special finding of facts this court has no authority to inquire whether the evidence supports the findings, but only whether the facts found support the judgment. Lehnen v. Dickson, 148 U. S. 71, 77, 13 Sup. Ct. 481, 37 L. Ed. 373; Myers v. Hettinger, 37 C. C. A. 369, 94 Fed. 370; Supreme Lodge v.

England, 36 C. C. A. 298, 94 Fed. 369; Minchen v. Hart, 36 U. S. App. 534, 18 C. C. A. 570, 72 Fed. 294; Hill v. Woodbury, 4 U. S. App. 68, 1 C. C. A. 206, 49 Fed. 188.

It is assigned for error that “no lawful canvass had been made by the board of county commissioners, or by any one, of any election held for the purpose of issuing the bonds in suit.” The eighth and ninth findings of fact distinctly state that the election was held; that the vote was unanimous in favor of a proposition to issue the bonds, there being 117 votes in favor of it and none against it; and “that the judges and clerks of said election, they being the election hoard, duly conducted said election, received the votes, and counted and returned the same as provided by law, and said election and votes and return were duly canvassed, and the result of said election declared in favor of the issuing of said bonds as provided by law, by the township board at a meeting at which W.

H. Olmsted and H. W. Stillhamer, treasurer and trustee, were present, the record not showing that the clerk was present.” This assignment cannot prevail in the face of these findings. Moreover, under our decisions the recitals in the bonds preclude the defendant from raising this question. Brown v. Ingalls Tp., 57 U. S. App. 611, 30 C. C. A. 27, 86 Fed. 261. In the case last cited it was distinctly held by the court that it is the fact of the assent of the voters, and not the certificate of that fact, or the canvass of the vote, which confers the right to issue the bonds.

It is next assigned for error “that the bonds run for a longer period than that specified in the petition presented to the township board asking for the election.” The recitals in the bonds are a corn-píete answer to this objection. Moreover, it is shown to be without foundation in fact by the special finding of facts. The bonds were to run 10 years.

They were payable on the 1st day of July, 1897, and, though they bear date the 1st day of June, 1887, the court finds they were not issued until the 20th day of July, 1887, so that they matured in a little less than 10 years from the date of their issue, which is the date from which to compute the time they had to run. They became binding obligations on the township from the date of their issue only. City of South St. Paul v. Lamprecht Bros. Co., 31 C. C. A. 585, 88 Fed. 449, 455.

Another assignment of error is “that the sum appropriated for the issuance of said bonds was in excess of the sum which could be appropriated by a township in the construction and purchase of a bridge.” It is not very clear what is meant by this assignment. In appellant’s brief it is treated in a double aspect: First, as raising the question that the bonds voted were in excess of 5 per cent, of the value of the taxable property of the township; and, second, as raising the question that the township could not, under the laws of Kansas, purchase a bridge costing more than $200.

Conceding both of these points to be properly raised, they are without merit. The amount of bonds voted for the purchase of the bridge was slightly in excess of the 5 per cent, limit, but as to this excess the township officers were enjoined from issuing bonds, and the bonds actually issued were not in excess of 5 per cent, of the value of the taxable property of the township. 'See eleventh special finding. At the time the bonds in suit were voted and issued, we understand, from the brief of counsel, that

chapter 68 of the Session Laws of 1872, found in

chapter 12a, Gen. St. Kan. 1889, was in force.

Section 1 of that act provides: “The board of county commissioners of any county, the mayor, and common council of an incorporated city, and the trustee, clerk and treasurer of any municipal township in this state are hereby empowered to issue the bonds of such county, 'city or township, in any sum not greater than ñve per cent., inclusive of all other bonded indebtedness, of the taxable property of such county, city or township, for the purpose of building or purchasing bridges, free or otherwise, - * * *.” It will be observed that the only limitation imposed on the power of a township to issue bonds for the purpose of building or purchasing bridges is that the amount shall not be greater than 5 per centum, inclusive of all other bonded indebtedness, of the taxable property of the township.

The validity of the bonds was not affected by legislation subsequent to their issue. It appears from the record that, after the cause was duly submitted to the court, what purported to be findings of fact and conclusions of law of the court in the cause inadvertently found their way onto the record. Subsequently, when the error was discovered, the court entered the following order: “The findings of law and fact and order heretofore made in the above-entitled cause, and filed on the 2d day of December, 1898, are hereby set aside for the reason that the same were inadvertently filed and entered.

The attorneys for the plaintiff and the defendant are allowed until the second day of the next term oí- court to submit special findings oí fact and conclusions of law for the consideration of tlie court.” The parties did subunit special findings of fact and conclusions of law to the court in pursuance of the leave given them in this order.

It is now for the first time objected that when the order which ive have quoted setting aside the findings of fact inadvertently like was entered, the court could not proceed further to consider the case “without a new waiver of a jury and a new trial and submission of the cause”; but there had been no trial of the cause in the sen.se that the court had reached a final judgment therein. The findings of fact and conclusions of law which found their way upon the records are shown to have been inadvertently entered of record, and not: to express the judgment of the court in the case.

For that reason the court very properly set them aside, and continued to consider the case upon the proofs submitted at the trial. No suggestion was made that it had lost jurisdiction to try the case, or that a new agreement to try the case before" the court was necessary, but both parties acted on the assumption, supported by the record, that the trial of the case had not been completed by any finding or judgment of the court, and that it was still before the court on the original submission and the testimony heard at that time.

In view of these facts, the suggestion that the court had lost jurisdiction to try the case, and that i is judgment is erroneous for that reason, cannot be entertained. The writer of this opinion has not heretofore concurred in the very extended and sweeping operation and effect given to recitals in municipal bonds by the majority of this court; but the views of this court are very little in advance of the recent decisions of the supremo court of the United States (Commissioners v. Rollins, 173 U. S. 255, 19 Sup. Ct. 390, 43 L.

Ed. 689), and as a law-abiding citizen the writer acquiesces in these decisions, though he does not believe in the doctrine to the extent to which it has been carried, and which compels municipal corporations to pay bonds issued illegally, fraudulently, and without consideration because a rascally officer inserís a false recital in them. It is a gratifying fact that this case presents none of the odious features which often characterize the issue of municipal bonds. Here the bonds voted by the people were honestly applied by the officers of the township to Hie purpose for which they were voted.

The jJeople of the township got just what they voted for, and for a less price than they were willing to pay for it, and have had the use aud enjoyment of the property from the date of its purchase. Interest was paid on the bonds for nine years, and the effort to repudiate them at this late day is, upon the facts found by the circuit court, without legal or moral merit. The judg ment of the circuit court is affirmed.