such expenditure within the allotted time avoids municipal bonds issued in its aid, and held either by itself or its agents.* 1 Merrill v. Welsher, 50 Iowa, 61. 2 Smith v. Bourbon County, 127 U. S. 125. 3 Smith v. Bourbon County, 127 U. S. 125. 4 Farnham v. Benedict (1887), 107 N. Y. 159; holding further that an officer of the railway company who thereafter negotiates any of the bonds becomes personally liable to the municipal corporation, and is not released by accounting to his company for the proceeds. CHAPTER X. MUNICIPAL SUBSCRIPTIONS AND MUNICIPAL BONDS. (A). The Contract of Subscription. § 218. The form of the contract of subscription-Whether the popular vote constitutes a subscription-Acceptance by the railway. § 213. Municipal subscriptions may be conditional-Injunction to restrain breach of conditions. § 220. § 221. Of performance and waiver of conditions. Effect of non-performance of conditions upon the validity of bonds. § 222. What officers may make the contract of subscription and issue the bonds. § 223. Scope of authority of commissioners and municipal officers. § 224. (B). The Payment of the Subscription. Of payment of the subscription-Whether in bonds or in money. § 225. Of the time and place of payment. § 226. Of taxation for payment of municipal donations or subscriptions. § 227. Of taxation of railway property in aid of railways. (C). Municipal Bonds. § 228. Municipal bonds not to be issued below par. § 223. Of the negotiability of municipal bonds and their coupons. § 230. Of bona-fide purchasers of municipal bonds. § 231. § 232. Estoppel of municipality to deny legality of bonds. § 233. Recitals in bonds-Operation of to estop municipality. § 231. Estoppel by certificate of municipal authorities. The same subject continued-Records may be attacked by direct proceedings only. § 235. § 233. § 237. No estoppel as to bonds issued entirely without authority. Holders of municipal bonds affected with knowledge of law. § 238. Of coupons of municipal bonds. § 239. Of the substitution and re-issue of bonds. (D). Rights and Remedies Herein. § 240. Rights and remedies of railway. § 241. Rights and remedies of holders of municipal bonds. § 212. Rights and remedies of holders of void municipal bonds. Rights and remedies of municipality. § 213. $211. § 215. Rights and remedies of municipality not superior to other subscribers'. The same subject continued-Delivery of stock. § 216. Remedies of the municipality with respect to void bonds. § 217. Remedies of tax-payers. § 213. Conflict of remedies-Operation of mandamus upon injunction, and vice versa. (E). Construction. § 249. Rule of construction in federal courts-When the decisions of State courts will be followed. (A). The Contract of Subscription. § 218. The form of the contract of subscription -Whether the popular vote constitutes a subscription-Acceptance by the railway.—A municipal subscription to the stock of a railway need not be in writing; a resolution by the proper board of officers or agents declaring the subscription to be made, acceptance on the part of the railway and notice thereof to the municipality, being sufficient; and the contract so made is binding upon both parties, although there has been no exchange of the bonds of one for the stock of the other.1 But where bonds in payment of a legal appropriation in aid of a railway are defectively issued, and judicially declared void, neither the written record of the vote nor the issue of the void bonds constitute a contract in writing with the railway which will take the case out of the statutory limitation of five years upon parol agreements. While no formal acceptance of the subscription is necessary, yet until there has been either an express or implied acceptance there is no contract.3 The vote of the people, however, in favor of the subscription, does not amount to a contract of subscription, nor vest in the railway a right to enforce specific performance, where the enabling act confers any discretion in relation to the matter, upon the officers of the municipality. For example, a provision of a statute that a county "shall have power by resolution to cause to be issued bonds not exceeding " a certain amount, if a majority of the ballots cast should be in favor of aiding a railway, was held to vest a discretion in the municipal authorities which rendered the vote inoperative until the passage of the resolution by them.5 Nor does an order of court declaring that a certain sum "be and is hereby subscribed," amount to a subscription where the subscription is conditional." So long as any condition remains unsettled, or any discretionary act is to be performed, neither the vote nor the order becomes operative; but when the officers are merely to perform a simple ministerial or clerical duty, the vote or order is in itself the subscription, and mandamus lies to compel the performance of the ministerial duties requisite to the formal execution of the contract. 1 Bates County v. Winters, 112 U. S. 325; Cass County v. Gillett, 100 U. S. 535; Nugent v. The Supervisors, 19 Wall, 241; State v. Jennings, 4 Wis. 549. 2 Etna Life Insurance Co. v. Town of Middleport, 31 Fed. Rep. 874; Etna Life Insurance Co. v. Town of Milford, 31 Fed. Rep. 879. 3 Bates County v. Winters, 112 U. S. 325; State v. Garoutte, 67 Mo. 445. Cf. Pittsburg etc. R. R. Co. v. Allegheny County, 79 Pa. St. 210. 4 Bates County v. Winters, 97 U. S. 83; Wadsworth v. St. Croix County, 4 Fed. Rep. 370; Syracuse Savings Bank v. Town of Seneca Falls, 86 N. Y. 317; Cumberland etc. R. R. Co. v. Barren County, 10 Bush. 604; Winter v. City Council of Montgomery, 65 Ala. 403; People v. Jackson County, 92 Ill. 441; People v Pueblo County, 2 Colo. 360. Cf. Bank of Statesville v. Town of Statesville, 84 N. C. 169. 5 Wadsworth v. St. Croix County, 4 Fed. Rep. 370, 378. 6 Bates County v. Winters, 97 U. S. 83; People v. Jackson County, 92 Ill. 441. 7 Wood's Railway Law, § 117, citing People v. Pueblo County, 2 Colo. 360; Cumberland etc. R. R. Co. v. Barren County, 10 Bush, 604. See also cases cited supra. § 219. Municipal subscriptions may be conditional-Injunction to restrain breach of conditions. A municipality may make the payment of its subscription expressly conditional in the same manner as individual subscribers; unless the enabling act, either expressly or by implication, deprives it of the right to impose conditions. Authority granted the municipal corporation to impose certain conditions does not by exclusion prevent the imposition of other conditions, unless from the general tenor of the enabling act it is evident that such inhibition was intended. A municipal subscriber is entitled, under like circumstances, to the benefit of the same implied conditions as any other subscriber would be. Thus, if a railway, in submitting to a town a proposition for aid, states therein that it has surveyed and located the line through certain sections of the town to a designated point, and solicits aid to build the road " on the route indicated," it will raise an implied condition that the road shall be constructed as indicated.5 But a mere survey does not necessarily constitute a representation as to the location of the road, nor raise an implied condition that it shall be built upon the route surveyed. When a subscription has been made upon a condition that the railway be constructed along a specified route, the municipality may restrain a diversion from that route. And a feeble company of doubtful ability to construct any road between the terminal points of its charter, may be 6 |