#### JASPER CLAYBROOK v. COMMISSIONERS OF ROCKINGHAM COUNTY.

*Timm Subscription to Railroad*— Election— *Declaring*Result— *Issue of Bonds, validity of*— Purchasers *of Bonds, when and when not affected loith notice.*

1. Where there is an inherent constitutional defect in the statute authorizing the issue of municipal bonds or in the proceedings under which they are issued, a purchaser takes with notice, and there can be no such thing as an innocent holder.

*2.*The only authority that can fasten upon a municipality an obligation to pay a subscription to a railroad is the duly ascertained vote of a majority of its qualified voters, and bonds issued without such vote being ascertained and declared are invalid even in the hands of an innocent purchaser.

*4543. Whore an act of the Legislature (eh. 87, Acts of 1887) authorizing towns along the line of a proposed railway to purchase its stock and issue bonds in payment thereof, upon the vote of a majority of the qualified voters, required that the County Commissioners should ascertain and declare the result of such election and, upon an affirmative vote to issue the bonds, a statement by the County Commissioners that “after due canvass, the foregoing returns of election are correct and the said Board hereby approve the said returns” is not a declaration that a majority of the qualified voters favored the subscription.

4. A purchaser of municipal bonds which, upon their face, refer to the statute under which they are issued is bound to take notice of the statute and all its requirements; and, therefore, where bonds were issued by the Commissioners of a county on behalf of a town under an act of the Legislature authorizing the issue upon an affirmative vote of a majority of the qualified voters of the town, and neither the declaration of the result of the election by the Commissioners nor the recitals in the bonds show that a majority of the voters of the. town voted in favor of the subscription, the purchasers of the bonds, though *bona. fide*and for value, will not be protected in a suit by tax-payers to restrain the collection of taxes to pay the same, unless a jury shall find that question in the affirmative.

5. An election held on the day named by the County Commissioners for a vote upon the question of issuing bonds in aid of a railroad, under ch. 87, Acts of 1887, is not vitiated by the fact that, through mistake, another date was copied in their minutes.

(i. In voting on the question of subscribing for railway stock and issuing-bonds in payment therefor, under Laws 1887, ch. 87, requiring that those in favor thereof should vote “Subscription,” and those opposed “No Subscription,” it is immaterial that the electors voted “Lor Subscription” and “Against Subscription.”

7. The fact that petitioners for an election to decide whether the town should purchase railway stock and issue bonds therefor, under Laws 1887, ch. 87, styled themselves “voters and tax-payers,” while the act required a petition by “resident tax-payers,” was immaterial.

8. The fact that the County Commissioners canvassed the returns of such election the second day thereafter, instead of the third, as provided by the statute, is immaterial.

*455This was an actiox brought by Jasper Glaybroolc and others, citizens of the town of Stoneville, to the Fall Term of the Superior Court of Rockingham County, against the Board of County Commissioners of Rockingham county, to test the validity of an election held in said town under chapter 87 of the Laws of 1887, for a subscription of $5,000 to the capital"stock of the Roanoke & Southern Railway Company, and for injunctive relief against the issue or sale of such bonds, and against the further collection of taxes to pay the interest thereon. A temporary injunction was issued returnable during the Fall Term of Rockingham Superior Court, before *Winston, J.,*and upon the filing of the answer of the Commissioners, duly verified, the Virginia and North Carolina Construction Company and J. M. Cummings, the purchasers of said bonds, were by order made'parties defendant, and filed their verified answers; and the matter of the injunction was finally heard upon the plaintiffs’ verified complaint, replies, affidavits and exhibits, and the defendants’ answers, affidavits and exhibits, as set forth in the record, the pleadings being used as affidavits.

His Honor rendered judgment continuing the injunction, and the defendants appealed.

*Messrs Reicl*& *Reid,*for plaintiffs.

*Messrs. Mebane*cfc *Scott,*for defendants (appellants).

MacRae, J.:

The provisions of the act to incorporate the Roanoke & Southern Railway Company (Laws 1887, ch. 87) which are applicable to our present .inquiry are substantial^ as follows: Any town through or near which the said road may run may subscribe for and hold stock in said company, when authorized so to do by a majority of all the qualified voters of such town, under the provisions of the *456said act. Upon presentation of a petition, signed by at least twenty resident tax-payers of any town, to the Board of Commissioners of any county in which said town is situated, requesting said Commissioners to submit to the vote of the *qualified voters*of their town a proposition to subscribe a definite sum named in the petition to the capital stock of said company, the Board of Commissioners* shall, within sixty days, order an election to be held and submit to the qualified voters thereof the question of subscribing, according to the petition; at which election those in favor of such subscription shall vote “Subscription,” and those opposed shall vote “No subscription.” The said election is directed to be held, registrar, poll-holders and judges appointed, and the registration of voters taken as provided by law for the election of Commissioners or Aldermen of cities and towns, except that the poll-holders shall make returns within three days after the election of the votes cast to the Board of County Commissioners, who shall, on the third day after the election, canvass the returns, *declare the result*and cause the same to be entered on their minutes. And if a subscription shall be directed by a majority of all the qualified voters of the town the chairman of the Board of Commissioners shall, within sixty days after said vote is ascertained, subscribe the amount so authorized, to be paid for in the bonds of the town at their face value, and the Board of Commissioners shall issue coupon bonds to the amount authorized in the denominations specified in the act, indicating on the face of the bond on account of what town and the conditions upon which they are issued. Said bonds are to run not exceeding forty years, and bear interest not exceeding six per cent, per annum. And the Board of Commissioners arc to levy annual^ a special tax upon all the property and polls of said town to regularly pay the interest as it shall fall due and to provide a sinking fund *457to pay off the principal at the maturity of-the bonds. The tax-collector of the town is to collect the tax and promptly apply it to the payment of the interest and principal as provided for in the act. By chapter 118 of the Acts of 1893 there was an amendment to the foregoing, providing that if any such city or town fail or neglect to appoint a tax-collector on or before the 30th day of May of any year it shall be the duty of the Sheriff of the county to collect all taxes duly levied upon the property and polls of said town.

On the first Monday in October, 1888, a petition was filed before the Board of Commissioners- of Rockingham county, purporting to bo signed by twenty-three *voters and tax-payers*of the town of Stoneville, asking the Board to order an election in the town of Stoneville, and an election was ordered to be held on the 3d day of November, 1888, at which the legalty qualified voters nmy be entitled to vote for or against a subscription of $5,000, etc. And, as appears from the minutes of the Board, return was made of said election by the judges and registrar to the Board of Commissioners on the 5th of November, 1888, and the following action taken by the Board :

> “ It appearing to the satisfaction of the Board of County Commissioners, after due canvass, that the foregoing returns of election are correct, and the said Board hereby approve the said returns.”

On December 8, 1890, the Board of Commissioners delivered to the Roanoke *&*Southern Railway Company fifty bonds of $100 each, a copy of one of which bonds (all being alike) is made a part of the statement. On December 19, 1890, the said bonds 'were transferred and assigned by said railway company to the defendant construction company, in consideration of work and labor done upon said road, and said railroad was built and is now operated through the town of Stoneville.

*458The plaintiffs allege the following irregularities in the proceedings under which the election was held and the action of the Board of County Commissioners thereafter:

> “ 1. That the petitioners styled themselves voters and tax-payers of the town of Stoneville, and not *resident*taxpayers, as required by section 22 of the Act of 1887.

> “ 2.. That the election was ordered to be held on the 30th of November, and was held on the 3d day of said month.

> “ 3. That there was no registration of voters had before the election, as required by law.

> “4. That the ballots used in said election wore‘For subscription,’ instead of simply ‘Subscription,’ and *‘Against*subscription,’ instead of ‘No subscription,’ as'the statute required.

> “ 5. That it nowhere appears that a majority of the qualified voters of the town voted in favor of subscription.

> “ 6. That no qualified voter of the town did vote ‘ Subscription.’

> “ 7. That the Board of Commissioners made no canvass of the returns of said election on the *third*day thereafter, as by law they were required to do.

> “ 8. That the Board of Commissioners failed to ascertain the result of said election, or to declare the same, or to cause the same to be entered on their minutes.”

And the plaintiffs further charge that the bonds have never passed into the hands of innocent holders for value without notice of the alleged irregularities. The complaint, answers and replies, together with many affidavits, were offered upon the motion for an injunction, which it will not bo necessary to set out here, as we have stated the contentions of the parties.

The holders of the bonds in question have been made parties and have filed their answers. The defendants contend :

> *459“1. That the plaintiffs have'failed to bring their action within a reasonable time and until the bonds have passed into the hands of innocent or *-bona*fide• holders for value and without notice, and therefore that the action should be dismissed.

> “ 2. That the general allegation of the complaint that a majority of the qualified voters did not vote subscription is too vague and not stated with the certainty required; and so with regard to the allegation that the registration books were not kept open for thirty days before the election, it not being alleged that any voter was deprived of the right to register and vote.

> “ 3. That a majority of qualified voters did vote in favor of subscription.

> “ 4. That the bonds in question have passed into the hands of *bona fide*holders for value and without notice, and that the Board of Commissioners and the town of Stoneville are estopped from denying the validity of the bonds by the entries upon the minutes of the Board and the recitals in the bonds.”

It will be seen that two issues arise upon the pleadings, involving serious questions in dispute:

1. Did a majority of the qualified voters of the town of Stoneville vote for subscription ?

2. Are the defendants the Virginia and North Carolina Construction Company and J. M. Cummings *bona fide*holders of the bonds and without notice of any irregularities in their issue?

It follows that pending the determination of these issues it will be necessary that the injunction should be continued.

In considering the questions.presented to us by the contentions of the parties as to the liability of a municipal corporation on bonds issued for its benefit we are traveling upon a beaten trgck. The law-has been well settled by *460repeated adjudications in the Supreme Court of the United States and in many of the States of the Union, and nowhere better than by our predecessors in this Court.

There is no statute of limitations applicable to this action; therefore it must bo brought within a reasonable time and before the rights of innocent holders have intervened. *Jones*v. *Commissioners,*107 N. C., 248.

It will be understood that where there is an inherent. constitutional defect in the statute authorizing the issue of municipal bonds or in the proceedings under which they are issued a purchaser of the bonds takes them with notice, and there can be no such thing as an innocent holder; or, where there is a plain violation of the statute conferring the authority to issue bonds, as in' *Anthony*v. *Jones,*101 U. S., 693, where the bonds were required by the statute to be presented to the State Auditor to be registered, certified and indorsed before they Avere negotiable, and this requirement was disregarded, the notice of the defect was borne upon the bond itself by the lack of indorsement; or, in *McClure*v. *Oxford,*94 U. S., 429, where the recitals in the bonds showed that they were illegally issued, the same result will follow.

The doctrine now so thoroughly settled is stated in a very able opinion by Mr. Justice ByNUM in *Belo*v. *Commissioners,*76 N. C., 489: “While the decisions are very uniform that the record of the Justice’s Court affirming the fact of compliance with the conditions precedent to the subscription of stock is conclusive, and estops the county from denying the validity of the bonds in the hands of a *bona fide*holder before maturity, they are equally uniform in giving the same effect to the recitals in the bonds themselves that they had been issued, in pursuance of the law which authorized their issue. The recital is a determination of the question, and ’the holder has a right to rely *461on it.” Many authorities are cited, and since the decision was made the principle has often been reiterated in this Court, more especially in numerous cases where actions were brought to restrain the collection of special taxes for graded schools and under the fence law, where it was uniformly held that the declaration and finding of the Board of Commissioners that, at an election which was properly hold, a majority of the voters favored the provisions of the act was final and conclusive, except when attacked by direct proceedings brought for that purpose before rights of innocent holders had intervened. *Simpson*v. *Commissioners,*84 N C., 158; *Cain*v. *Commissioners,*88 N. C., 8; *Smallwood*v. *Newbern,*90 N. C., 36; *State*v. *Emry,*98 N. C., 768.

In the Supreme Court of the United States there is an unbroken current of authorities from *Knox County*v. *Aspinwall,*21 How., 539, to *Hodges*v. *Dixon,*150 U. S., 182, where it is said, after citing many authorities, that “recitals in bonds issued under legislative authority may estop the municipality from disputing their authority as against a *bona fide*holder for value, but when the municipal bonds are issued in violation of a constitutional provision no such estoppel can arise by reason of any recitals contained in the bonds.”

The exception as to issue or violation of constitutional provisions is expressly stated in *Duke*v. *Brown,*96 N. C., 127, and in *Railroad*v. *Commissioners,*109 N C., 159. In the former case it was said: “ But it may be suggested that the defects not known to the innocent purchasers of these public securities do not enter in to vitiate their obligatory force, when the vote has been officially counted and the result announced. This is true, as held in *Norment*v. *Commissioners,*85 N. C., 387, and when those charged with the conduct of an election have determined the facts necessary to its efficacy, this being matter *in pais,*it is to be taken as conclusively settled, as in that case, that a- majority of all *462the qualified voters of the city had voted in favor of a graded school. This is not our case. The Commissioners to whom the vote is certified determined the respective votes for and against the issue of the bonds, and a majority thereof in favor of it, as allowed by said act for the purpose therein set out, and that all the requirements of said act and of the law have been duly and regularly complied with. They do not certify, nor could they on the returns made, that the constitutional majority of affirmative votes had been cast, and in this feature the case essentially differs from that of *Norment v. Commissioners.”*

In *Railroad*v. *Commissioners, supra,*it is said: “ The only authority that can fasten upon the township an obligation to pay a subscription is the duly ascertained vote of a majority of its qualified voters. Without it any action of the County Commissioners or township Justices, appointing agents to subscribe for and to represent or vote for said township in the-stoclcholdors’ meetings of the plaintiff company, was a nullity and *-ultra vires.*The life-giving power required by the Constitution, the due expression of the popular will at the ballot-box, being lacking, if the Commissioners had gone still further and actually issued the bonds the}7 would have been invalid even in the hands of innocent purchasers.”

By reference to the returns of election it will be seen that it is simply that the votes cast were for subscription 21, against subscription 1. And the declaration of the Board of Commissioners is that it appearing to them, “after due canvass, that the foregoing returns of election are correct, and the said Board hereby approve the said returns,” there is no declaration here that a majority of the qualified voters favored the subscription.

We must look, then,-to the recitals in the bonds, and there we find it stated that “the Board of Commissioners of the *463county of Rockingham, legally representing the body of the town aforesaid, having duly ascertained the sense of the qualified voters of the town aforesaid to favor a corporate subscription to the capital stock of the Roanoke & Southern Railway Company, by an election heretofore duly held for that purpose, have caused this bond to bo issued to meet thoinstallments upon the town subscription to said company, and the whole is done by virtue of an act of the General Assembly ratified the 23d day of February, 1887, chapter 87, Acts of 18.87.”

' "While the recitals in the bond are binding and conclusive in favor of a *bona fide*holder for value, they refer to the act of Assembly under which the election was held, and put the purchaser upon notice of the requirements of the act, the same being a part of the recital by virtue of the reference to it. “To be a *bona fide*holder one must be himself a purchaser for value without notice, or the successor of one who was. Every man is chargeable with notice of that which the law requires him to know, and of that which, after being put upon inquiry, he might have ascertained by the exercise of reasonable diligence. Every dealer in municipal bonds, which upon their face refer to the statute under which they were issued, is bound to take notice of the statute and of all its requirements.” Chief Justice Waite, in *McClure*v. *Oxford, supra.*Referring to section 22 of said act, it will be seen that the duty of the Board was to submit to the qualified voters of the town the question of subscribing to the capital stock of said company *the amount specified in the petition,*so that the recitals in the bond do not show a full compliance with the requirements of the act.

Treating the other irregularities charged by plaintiffs as only irregularities which would not vitiate the bonds in the hands of an innocent holder for value, the main ques*464tion alleged and denied is whether a majority of the qualified voters of the town of Stoneville voted in favor of the subscription, and this question must go to a jury. *Railroad*v. *Commissioners, supra,*and cases there cited.

As the recitals, both in the declaration of the result and in the bond, are defective,-we are of the opinion that even though the holders of the bonds shall bo *bona fide*and for value, they will not be protected unless the jury shall find that a majority of the .qualified voters of Stoneville voted in favor of the subscription. We are also of the opinion that the petition styling the petitioners voters and tax-payers instead of *resident*tax-payers, as required by the statute, is an immaterial variance, for to be a voter it is necessary to be a resident. .

It appears by the amended minutes of the Board of Commissioners that the order for an election was made for the 3d, the day on which it was held, and that the figure 30 was copied by mistake.

If it shall be made to appear by a verdict that a majority of the qualified voters voted in favor of the subscription we see no requirement that there should have been a new registration for the purposes of this election. The affidavits are conflicting, the registrar himself furnishing to each side an affidavit in support of its contention — the one as strong as the other. Whether the registration books were kept open or not would be controlled by a finding as to whether a majority of the qualified voters voted in favor of subscription, it being borne in mind that a qualified voter is a registered voter. *Southerland*v. *Goldsboro,*96 N. C., 49, and *Duke*v. *Brown, supra.*It does not appear that the ballots used did not follow the exact requirements of the statute. It was the *return*which stated that the votes were passed for subscription and against it, and this would follow if the ballots had been simply “Subscription” and *465“No subscription.” Indeed, we should hold that this variance, if it were proved, was immaterial, as it expressed the same meaning. We think and so hold that the examination and approval of the returns of election were a substantial compliance with the requirements of the statute that the Board shall declare the result, etc. The fact that the tax levied made no provision for a sinking fund might be a grievance to the holders of the bonds, but we cannot see that the plaintiffs are prejudiced thereby. And the canvass on the second'instead of the third, day after the election was an irregularity which would not prejudice a *bona fide*holder.

It will bo necessary to submit the second issue which we have suggested, because if the subscription was authorized by a vote of a majority of the qualified voters the alleged irregularities would not prevail against a *bona fide*holder for value and without notice. Affirmed.