Opinion
No. 12,954.
Decided December 19, 1932. Rehearing denied January 7, 1933.
Action involving validity of supplemental bonds of the Moffat tunnel improvement district. On plea in bar, and motion to dismiss the writ of error.
Plea Sustained and Writ Dismissed.
1. COURTS — State and Federal — Jurisdiction. In an action in the state court involving the validity of supplemental bonds issued by the Moffat tunnel improvement district, a question arising as to the jurisdiction of state and federal courts — the latter having declared the bonds valid — the Supreme Court of Colorado adopts the finding and conclusion of the United States circuit court of appeals, that the federal court had jurisdiction. Boynton v. Moffat Tunnel Dist., 57 F.2d 772.
2. RES JUDICATA — Estoppel. The same parties may not relitigate a matter theretofore determined in the same or another court.
3. PLEADING — Issues. Where a defendant neither admits nor denies a material allegation of a complaint, but asks strict proof thereof, this tenders an issue calling for the court's determination.
4. RES JUDICATA — Pleading. If the matter in question is controverted by the pleadings, it will be conclusively presumed to have been litigated.
5. Pleading. To render a matter res judicata it is not essential that it should have been distinctly and specifically put in issue by the pleadings. It is sufficient that it be shown to have been tried and settled in the former suit.
6. JUDGMENT — Consent Decree. In an action involving the validity of municipal bonds, where all facts were admitted, but the validity of the bonds was determined only after investigation and consideration, and in the exercise of the court's judicial powers, the judgment was not a consent judgment.
7. MUNICIPAL CORPORATIONS — Judgment Against — Effect. In the absence of fraud or collusion, a judgment against a tunnel improvement district binds the taxpayers thereof. In the instant case it is held under the attending circumstances that judgment of a federal court declaring municipal bonds valid did not operate as a constructive fraud upon the taxpayers, their representatives having had full knowledge of all the proceedings.
8. Bonds — Validity — Court Powers. While a court can not declare a municipal bond valid, if it has no jurisdiction or when it unquestionably appears that it is invalid, the rule does not apply when the validity of the questioned bond is to be determined by a construction of the legislative measures authorizing it, the provisions of which are obviously and unmistakably susceptible of two constructions, one validating, and the other invalidating, it.
9. COURTS — State and Federal — Jurisdiction. In an action in a state court to establish the invalidity of municipal bonds, it is held, under the pertinent established facts, that a federal court with jurisdiction having theretofore judicially declared the bonds valid, the matter was res judicata; that a plea in bar based thereon was good; and that plaintiff in the state court was estopped from further prosecuting the action.
Error to the District Court of the City and County of Denver, Hon. E. V. Holland, Judge.
Messrs. GRANT, ELLIS, SHAFROTH TOLL, for plaintiff in error.
Messrs. HUGHES DORSEY, Messrs. MONTGOMERY MYER, Messrs. FILLIUS, FILLIUS WINTERS, Messrs. RHOADS SEEMAN, for defendants in error.
Mr. JAMES D. PARRIOTT, Mr. FREDERICK P. CRANSTON, Mr. JAMES H. PERSHING, amici curiae.
THE Denver Land Company, a Colorado corporation, owning property subject to taxation under the Moffat Tunnel Act (S. L. of '22, c. 2, p. 88), for itself and others similarly situated, on June 23, 1928, instituted an action in the Denver district court against the Moffat Tunnel Improvement District and its officers seeking to enjoin the collection of assessments made to pay certain amounts due upon so-called "supplemental bonds of the district" which were charged to be invalid because issued without authority of law. (Plaintiff did not seek a temporary injunction restraining this collection; none was ordered and the district proceeded to collect assessments then and subsequently made. On August 1, 1930, the commission had collected $776,560.28 for such purposes and this "supplemental bond fund" now exceeds $1,700,000.)
On October 6, 1928, Judge Robert G. Smith of the eighth judicial district, most of which lies without the Moffat Tunnel District, sitting in the Denver district court construed the Moffat Tunnel Act and held that the tunnel commission was thereby not only authorized, but commanded, to build a tunnel and clothed with all power necessary to that end; that the limit of indebtedness for this purpose was not $6,720,000, the amount of negotiable bonds authorized by section 10 (a), but the amount of appraised benefits, $43,000,000, and that the $8,750,000 of supplemental bonds, the proceeds of which were used to complete the tunnel, the total cost thereof being $15,470,000, were valid. Judgment of dismissal was thereupon entered.
On January 20, 1930, upon writ of error, this court held ( Denver Co. v. Moffat Tunnel Dist., 87 Colo. 1, 6, 284 Pac. 339) that the lower court was without jurisdiction to determine the validity of said supplemental bonds in the absence of bondholder litigants or a showing why such could not be made parties, reversed the judgment and remanded the cause with directions to make holders of supplemental bonds parties defendant and "to issue its injunction restraining the Moffat Tunnel Improvement District, a body corporate, and the commissioners of the Moffat tunnel commission, their agents, attorneys and employees, and all persons acting under their direction and control from paying out or otherwise disposing of any funds in their possession, realized from special assessments, for the purpose of paying interest on $8,750,000 Moffat tunnel supplemental bonds, all until such time as this case shall be fully and finally determined; that the cause be retried upon the issues presented, and judgment rendered not inconsistent with the views herein expressed." On February 1, 1930, pursuant to this direction, the district court entered such order.
Thereafter two supplemental complaints were filed and the American National Bank, as trustee, the International Trust Company, as trustee, Larry Maroney and the Supreme Camp of American Woodmen, a Colorado corporation, alleged owners of supplemental bonds, were joined as parties defendant. On January 30, 1931, the supplemental bond fund was ordered paid into the registry of the district court. This order was not complied with and on February 13, 1931, was modified, the tunnel commissioners being appointed custodians of said fund and as such permitted to retain it subject to further order of the court.
On June 26, 1931, the district court, this time speaking through Judge E. V. Holland of the Denver district, again sustained the validity of the supplemental bonds and dismissed the action and all injunctive orders. At the request of plaintiff, this judgment was stayed until December 23, 1931, upon which date it became finally effective. To review this second judgment of dismissal, this writ is now prosecuted.
On April 11, 1932, the American National Bank, as trustee, the International Trust Company, as trustee, and the Supreme Camp of American Woodmen, filed in this court a plea seeking to bar further action herein and a dismissal of the writ of error. The plea recites the pleadings and issues in a suit instituted August 19, 1930, by other supplemental bondholders against the Moffat Tunnel District in the United States district court for the district of Colorado (No. 9312, commonly called the Boynton suit); the injunctive order entered therein on February 4, 1931, restraining the tunnel commission from disposing of the supplemental bond fund; the judgment of dismissal, the appeal therefrom, and the decree of the United States circuit court of appeals for the tenth district ( Boynton v. Moffat Tunnel Improvement Dist., 57 F.2d 772, certiorari denied October 10th, 1932) reversing the judgment of the federal district court; sustaining the validity of said bonds and ordering the Moffat tunnel commission to disburse the supplemental bond fund pursuant to the prayer of the complaint.
On November 21, 1932, a supplemental joint and several plea in bar was filed adopting all of the allegations of the joint and several plea in bar and reciting that on November 17, 1932, the United States district court entered its decree pursuant to the prayer of the complaint and in strict accord with the decree rendered by the circuit court of appeals.
Thus, it is claimed that this judgment of the United States circuit court of appeals, the third adjudication of the validity of the supplemental bonds, and the decree of the United States district court entered at the direction thereof, are conclusive here and estop the Denver Land Company, the plaintiff in error herein, from further asserting their invalidity. If the plea in bar is good, the writ of error must be dismissed, otherwise not.
The character and extent of the jurisdiction of both courts have been disputed from the inception of each case, the Denver Land Company contending that the state court had exclusive jurisdiction because its suit was filed first and the bondholder litigants in each court claiming otherwise.
The United States district court held that the state court had jurisdiction and dismissed the action. The circuit court of appeals reversed this decision, decreed that the federal court had jurisdiction and could and should proceed, and it thereupon determined that the Moffat tunnel supplemental bonds were valid. The decree of the United States district court entered pursuant to this mandate has now become final.
The circuit court of appeals in Boynton v. Moffat Tunnel Improvement Dist., supra, through Judge McDermott, after a complete recital of facts, states on page 777:
"The plaintiffs and interveners have invested $6,677,000 in the obligations of the Moffat Tunnel district. Their money has been expended in the construction of the tunnel. They have not been paid their interest as it became due, although taxes have been collected for that purpose. They have come into a court of competent jurisdiction, presented their grievances, and have asked for a hearing. They are stopped at the threshold, and their bill dismissed. The Constitution of the United States (article 3, § 2) confers upon courts of the United States the power to determine controversies between citizens of different states, and to cases arising under the Constitution. The statutes of the United States (Jud. Code § 24 [ 28 USCA § 41]) confer upon those situated, as are these plaintiffs, the right to invoke that jurisdiction. They have invoked it. It becomes then the duty of the federal court to hear and determine the controversy, unless the established principles of law relieve such court of that duty. The trial court found, at the time it dismissed the cause, that the state court had such exclusive control of the res that the federal court might not proceed. At that time, the custodial order of February 13, 1931, was in force. It is no longer in force, and since appeals in equity are trials de novo, and since equity speaks as of the present ( Richardson v. Green [C.C.A. 9] 61 F. 423; City of Denver v. Mercantile Trust Co. [C.C.A. 8] 201 F. 790; 21 C. J. 663), we need not explore the effect of that order. Our task is to determine, upon the facts drawn onto the record by stipulation of the parties, whether the cause should stand dismissed, whether it should be reinstated and stayed, or whether the plaintiffs are entitled to a decree at our hands, on the record.
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"No question arises when the actions in the two courts are in personam; both may proceed; when one has gone to judgment, the judgment may be set up in the other action. It does not matter that both may involve the same controversy, for `a controversy is not a thing.' Kline v. Burke Constr. Co., 260 U.S. 226, 230, 43 S. Ct. 79, 81, 67 L. Ed. 226, 24 A.L.R. 1077. The question arises when the action in one or the other court is in rem, and when it may be that the force of the court's decree will be exerted against specific property, and not alone against a person. When that situation exists, certain rules have been evolved designed to prevent a struggle between the officers of two courts for possession of, or control over, a thing. These rules, applicable alone to actions in rem, may be divided into two classes. The first is where one court has reduced the res to its actual possession, in which event the res is withdrawn from the judicial power of other courts. With that branch of the rule we are not concerned, for there is and can be no claim that the fund is now in the possession of either court. The fund is now, and since the inception of both suits has been, in the possession of the commission. Both courts have issued personal injunctive orders directed to the members of the commission, but neither has reduced the fund to possession. Whether the state district court did at one time reduce the fund to custody is not now material; that order has expired; the Supreme Court of Colorado did not see fit to issue a similar order, but instead issued an injunction against those in possession of the fund.
"We are concerned only with that branch of the rule which deals with the situation where property has not been actually seized by judicial process, but where it may later become necessary in order to effectuate the decree of the court, to seize it. Such suits are those to foreclose mortgages or enforce other specific liens, to administer trusts, to liquidate insolvent estates, and other suits of like nature; the rule is limited, however, to actions which deal either actually or potentially with specific property or objects (citing cases). Such actions are often designated, perhaps unhappily, as `quasi in rem,' in order to distinguish them from the first class, which are designated as actions `in rem.' Both in fact are actions in rem; in the first instance, possession of the res is actual, and, in the latter, potential. The federal court action falls within the latter classification; it is a suit to administer a trust in a specific res, the supplemental bond fund; plaintiffs assert an interest in that fund and pray for a receiver thereof; any decree rendered in favor of plaintiffs will operate on the fund. The action in the state court did not originally have to do with the res involved in this action, for it was not then in existence. If it was an action in rem at all, which we need not decide, it was because of its prayer to remove a cloud from the title of an entirely different res, to-wit, real estate owned by plaintiff.
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"The rule that as between two actions quasi in rem the one first filed excludes the later one is subject to an important and well settled qualification, to-wit, that the two actions shall invoke the same jurisdiction. This qualification is essential to the administration of justice; except for it, a stockholder could apply for a receiver and either indefinitely postpone relief to creditors or bondholders, or could require them to come to the court of the stockholder's selection."
Then follows a discussion of the rules to the same effect announced in Harkin v. Brundage, 276 U.S. 36, 48 S. Ct. 268, 271, 72 L. Ed. 457; Empire Trust Co. v. Brooks (C.C.A. 5) 232 F. 641; McClellan v. Carland, 217 U.S. 268, 30 S. Ct. 501, 54 L. Ed. 762; Pacific Live Stock Co. v. Lewis, et al., (Oregon Water Bd.) 241 U.S. 440, 447, 36 S. Ct. 637, 641, 60 L. Ed. 1084 and Ingram v. Jones, 47 F.2d 135.
The opinion then continues:
"There remains but to apply the rule. The plaintiffs herein are not parties to the state court suit, and that court cannot grant them the relief to which they are entitled. It is no answer to suggest that they might intervene in the state court; they have not, and are not required to. Our court, as apparently has the Colorado Supreme Court, has squarely held that the right to proceeds of taxes levied to pay bonds cannot be determined in the absence of the bondholders. St. Louis, etc. Ry. Co. v. Blake (C.C.A.) 36 F.2d 652; Denver Land Co. v. Moffat Tunnel Imp. District, 87 Colo. 1, 284 P. 339. No. attempt had been made, when this action was brought, to bring the plaintiffs into the state court suit, if that could have been done.
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"Furthermore, the issues in the state court suit are not identical with the issues in this case; the most that can be said is that one issue in that suit is identical with one issue in this. The state court suit is an ordinary taxpayer's suit to relieve its property from a threatened tax lien; the issue in this suit is to recover on bonds, with no reference to what particular piece of property is assessed therefor. If the state court suit bars this action, then no bondholder can ever sue to recover on his bond as long as any taxpayer's suit is pending anywhere in the district. The result would be that municipal obligations could be successfully repudiated by the mere device of a succession of taxpayer's suits. This cannot be, and is not, the law. There is a much more striking difference between these actions than existed in the cited cases; and in addition thereto, as Judge Sanborn has said, the plaintiffs herein have never been and are not `parties to the litigation of those issues in the state courts.' The court below first acquired jurisdiction to adjudicate the claims of these plaintiffs, and, again to use Judge Sanborn's language, `the pendency of that litigation in the state court does not relieve the court below of its duty to proceed with all convenient speed to determine the issues in the suit before it.'
"It has been repeatedly and conclusively determined that a decree of any court, state or federal, adjudging bonds to be invalid, is binding only upon bondholders who are parties thereto. That was the principle applied by the Colorado Supreme Court when it ordered that they be brought into the state court suit as parties, before further action by the state court. Bondholders' rights could not be adjudicated until the court acquired jurisdiction over them, and until they were notified and given an opportunity to be heard, for such are the requisites of the due process guaranteed to every citizen by the Constitution of the United States, and that is what the state Supreme Court said must be done before the trial court could proceed against them. If, therefore, this case should be stayed or dismissed, and the state court should ultimately determine the bonds to be invalid, this suit must then proceed, or, if again brought, the court in which it should be brought, national or state, must then determine the validity of the bonds of the plaintiffs and interveners in this action." (Citing and discussing authorities.)
"It should not be understood, from what has been said, that there is any difference in the power possessed by the state and national courts. Each has power to render binding judgments on parties who are not before it, as the Colorado Supreme Court has ruled in this particular case. A final decree in the state court suit would be persuasive authority in this court, but it would not be res judicata as to the parties in this case who are not parties in that; neither would a decree of this court be res judicata as to parties in the state court who are not parties here; and different issues are, to a considerable extent, presented in the two courts. The rules to which we have adverted are alike applicable to the courts of the two sovereignties.
"One other reason, not so fundamental, why this action should proceed, may be mentioned. The conflict of jurisdictions which is here asserted cannot stand upon the relief sought by the pleadings in the two courts, because the pleadings do not concern the same res; the state court suit is one to remove a cloud from real estate; in the federal court suit, the res is the fund. The conflict, if there be one, must stand upon the interlocutory orders issued by the state courts and directed at the fund, which were outstanding when this suit was filed. But all such orders expired on December 23, 1931. Between that day and December 31, there was an interregnum in which no state court order was in effect; during that period, the federal court order was in effect; it was therefore in effect when the present order of December 31 was made, and of course prior thereto. Both state and federal court suits stood dismissed; both were on appeal, but jurisdiction over the fund was retained by the federal court, and relinquished by the state court. It is not disputed that the federal court action is one quasi in rem; even if its jurisdiction was suspended by the state court orders, which we have otherwise held, it nevertheless would be true that, upon the expiration of the state court orders, the federal court jurisdiction would immediately revive and attach, and could not thereafter be ousted by a subsequent order.
"The pendency of the taxpayer's suit was, therefore, no sound reason why this suit on the bonds should be dismissed. The defendants then assert that jurisdiction was ousted because the trial court permitted a resident bondholder to intervene, with the result that there is no diversity of citizenship between intervener and defendants. The plaintiffs are all nonresidents; they exercised their statutory right to sue in the federal court. Their right to relief, properly asserted, cannot be denied because the trial court permitted a resident to intervene. Supreme Tribe of Ben-Hur v. Cauble, 255 U.S. 356, 41 S. Ct. 338, 65 L. Ed. 673. Furthermore, plaintiffs present a substantial, and not a colorable, federal question when they contend that an order of the state court, issued in a case to which they are not parties and of which they had no notice, deprived them of the interest due on their bonds, and seriously affected the value thereof. Nor is the contention sound that this suit is not of equitable cognizance. It seeks to impress an existing fund with a trust, asks for a receiver and an accounting, and for a mandatory injunction as to future levies. These are for the equity side of the court. Other objections to the jurisdiction of the court have been examined and found to be without merit.
"There remains but one question, Are the bonds valid? In the trial court, their validity was denied by counsel for the Denver Land Company, appearing amicus curiae. The underlying question of the statutory power of the commission to construct a tunnel costing in excess of $6,720,000, without further legislative authority, was ably argued to this court in the lease case, Moffat Tunnel Improvement District v. Denver Salt Lake Ry. Co., 45 F.2d 715, 720, 729, certiorari denied, 283 U.S. 837, 51 S. Ct. 485, 75 L. Ed. 1448, and we there had occasion to analyze the statute. We concluded that the legislative direction to build this tunnel at a designated place was a command, and not a mere authority; that the principal object of the act was the construction of the tunnel: that the powers of the commission were broad enough to accomplish this underlying purpose; from a comparison of earlier acts, and the legislative history of this act, we reached the conclusion that the statute did not contemplate an abandonment of the project if the tunnel was incomplete when the first issue of bonds was exhausted. The legislature, in common with all mankind, must have appreciated the fact that no one could forecast with accuracy the underground conditions that might be met in the course of constructing a tunnel of this length; the cost could not therefore be estimated with accuracy. Certainly the legislature did not contemplate the expenditure of more than $6,000,000 of taxpayers' money on a worthless hole in the ground. In that opinion we held: `It is true that the Act authorizes the issuance of $6,720,000 of bonds to pay for the construction of the tunnel; the Act of 1919, submitting the amendment to construct this tunnel, provided for the issuance of bonds, but further provided that `Any contract or liability attempted to be entered into or created, in excess of the amount realized from the sale of said bonds, shall be void.' The Legislature of 1922 must have been familiar with the 1919 Act, and the omission of such a clause should not be charged to inadvertence. Moreover, it is a matter of common knowledge that school buildings, courthouses and other public improvements are constantly being erected and paid for in part by bonds, and in part from building funds, current assessments or from other sources. Again, the statute expressly gives the Commission power to levy assessments upon real estate in the District `for the purposes provided in this act (section 11), the principal one of which was the construction of a tunnel; as well as power to levy assessments to pay interest on and retire the bonds (section 13). So the hypothesis that the Act contemplates only a tunnel costing $6,720,000 is unsound.'
"Two of the learned judges of the state district courts have examined the question at length and independently. Both reached the conclusion that the bonds were valid. We have read these opinions and fully concur therein, as far as they deal with the question before us. Judge Smith concluded his opinion as follows:
"`It could not be implied that the legislature intended to circumvent the very purpose of the Act, i.e., the building of the tunnel, which it has ordered the construction thereof, and neither it nor the Constitution has prohibited the employment of those means necessary to the execution of its order.
"`When the proceeds of the bond issue of July 1, 1923, were exhausted, the tunnel was less than half finished. Had the Board abandoned its task at that point, all of its previous effort and the immense sum of money already expended would have been a total loss. Even a few months delay would have been well nigh fatal. Of course had the Legislature expressly prohibited the expenditure of more than $6,720,000, any further expenditure would have been illegal, but no such prohibition can be found in the law, and the express mandate to construct the tunnel is inconsistent with any such limitation, by implication, upon the powers expressly granted, so the Board determined, after taking advice, as is conceded, not only from their own attorneys, but from other leading attorneys in this state as well as outside of the state, that it should provide for levies against the property in the district, for the purpose of paying the additional expenses and would anticipate those levies by issuing securities extending over a period of years in order to relieve the immediate burden of the taxpayers, and to prevent the danger of, if not the actual loss, of the sums theretofore expended. It not being disputed that the cost of the tunnel must be paid by assessments, the only real question remaining is whether this shall be paid for in cash, or whether the taxpayers shall have the benefit of spreading it over a number of years, and there being nothing in our Constitution, or in the Tunnel Act which prevents the Board from doing what it did, it would seem their action should be sustained.'
"We are, therefore, of the opinion that the bonds are valid, and the plaintiffs are entitled to relief. It follows that the decree of the trial court must be reversed, and the cause remanded, with directions to enter a decree for plaintiffs as prayed for."
We agree with and adopt the foregoing decision in so far as it relates to the question of jurisdiction. Nonresident bondholders unquestionably had the right to invoke the jurisdiction of the federal court in order to secure the payment of an alleged valid obligation. Even though the action in the state court was instituted first, these bondholders were under no duty to appear therein in order to protect their rights. Both courts had concurrent coordinate jurisdiction and each was empowered to exercise the particular character of jurisdiction invoked. Each independent of the other was in duty bound to determine the issues involved. The jurisdiction of one court in no event would require a dismissal of the suit in the other. Only when the exercise of the jurisdiction of one interfered with the res possessed by the other would it be necessary for the former to delay action pending the determination in the latter court. If there had been a conflict of jurisdictions in the instant case, such was nonexistent on March 29, 1932, the date of the circuit court of appeals decision, because the only injunctive order then in existence was that made by the United States district court on February 4, 1931.
Having determined that the federal court had jurisdiction to adjudicate the issues presented in the Boynton case and that such adjudication should not have been held in abeyance pending the determination of the issues in the state court and the circuit court of appeals having sustained the validity of the supplemental bonds, it now becomes our duty to determine the effect of such decision here.
In this connection it should be borne in mind that the Moffat tunnel district and its officers were parties defendant in both suits; that the district taxpayers were parties by representation of the Moffat tunnel district in the federal court; that counsel for the Denver Land Company were at all times advised and knew of all steps taken in the Boynton suit and appeared as amici curiae before Judge Symes in that case and also in the tunnel lease case ( Moffat Tunnel Improvement District v. Denver Salt Lake Ry. Co., 45 F.2d 715, 283 U.S. 837) and argued the invalidity of the supplemental bonds and that counsel for the land company did not appear and made no arguments in the circuit court of appeals although they had been requested by counsel so to do.
The plea in bar invokes the doctrine of estoppel by judgment. This rule of law that the same parties may not relitigate a matter theretofore determined in the same or another court is salutary and based upon sound public policy; its liberal and universal application effectively has upheld the stability of our judicial system. Among the Colorado cases on this subject are: Williams v. Hacker, 16 Colo. 113, 26 Pac. 143; Lake County v. Johnson, 31 Colo. 184, 71 Pac. 1106; Bijou District v. Ditch Co., 67 Colo. 336, 184 Pac. 382; Albertson v. Clark, 70 Colo. 129, 197 Pac. 757; Croke v. Farmers Co., 71 Colo. 514, 208 Pac. 466; James v. James, 85 Colo. 154, 274 Pac. 816; Fort v. Bietsch, 85 Colo. 176, 274 Pac. 812; London v. Allison, 87 Colo. 27, 284 Pac. 776; Murray v. Ready, 88 Colo. 64, 292 Pac. 87. See also, 2 Freeman on Judgments (5th Ed.) 1317, et seq., §§ 625, 626.
In the federal court a condition precedent to the right of the bondholders to recover was a judicial determination that the supplemental bonds were valid. In the state court, a condition precedent to the right of the Denver Land Company to the relief sought was a determination that the supplemental bonds were invalid. Thus the paramount question in each case was the validity of said bonds.
Notwithstanding the federal decision was adverse to the contention of the Denver Land Company, here it still insists that this court make another determination favorable to it and consequently adverse to that of the federal court. It claims the plea in bar is not good because: (1) There is no final judgment in the federal court; (2) the taxpayers are not bound; (3) a court has no power to validate a void bond; and (4) the exclusive jurisdiction of the state court is not affected by the federal court decree. These in their order.
1. The brief of counsel for the land company in opposition to the plea in bar was filed about five months before the Supreme Court of the United States refused to take jurisdiction in the Boynton case; the decree of the United States district court entered pursuant to the mandate of the circuit court of appeals now has become final; therefore, it is unnecessary to further consider or determine what would have been the effect of the judgment of the circuit court of appeals in the absence of the action of the United States Supreme Court.
2. Counsel for the land company contend that the Boynton decree does not bind the taxpayers, because the validity of the supplemental bonds was not an issue and not controverted; the decree was by consent of the parties and the result of fraud or collusion, actual or constructive.
[3-5] A careful examination of the pleadings in the Boynton case discloses that although the defendants therein admitted the facts in connection with the issuance of the bonds, they neither admitted nor denied their legal effect but asked "strict proof thereof." This tendered an issue of law calling for the court's determination. Counsel for the land company must have thought the validity of the supplemental bonds was an issue else they would not have appeared before Judge Symes and argued their invalidity. Judge Symes certainly must have so understood, otherwise he would not have permitted such argument. We have held that "If the matter in question is controverted by the pleadings it will be conclusively presumed to have been litigated." Croke v. Farmers Co., 71 Colo. 514, 517, 208 Pac. 466. However, irrespective of this conclusive presumption, the opinion in the Boynton case evidences beyond doubt that the circuit court of appeals considered the validity of the supplemental bonds to be an issue which required determination before relief could be granted to the bondholders. The power to grant such relief necessarily must have included the power to construe the act and determine the validity of the bonds. This being true it would seem to us immaterial whether the validity of the bonds actually was placed in issue by the pleadings, it was an issue of necessity. 2 Freeman on Judgments (5th Ed.) 1470.
The opinion itself conclusively proves that the judgment of the circuit court of appeals was not a consent decree. All facts were admitted there, as here, as they should have been, but the validity of the bonds was not admitted and the court did not assume them to be valid; it determined their validity only after judicial investigations and consideration and in the exercise of its judicial powers.
Counsel concede that in the absence of fraud or collusion, actual or constructive, a judgment against the district binds the taxpayers thereof. The land company at no time charged or sought to prove that the tunnel commissioners were guilty of actual fraud in connection with the matters here involved. The record wholly fails to show that actual fraud existed at any time. At the time the Moffat tunnel bonds were in contemplation, the tunnel was not finished, the original bond issue of $6,720,000 was almost gone and it was imperative that quick action be taken in order to save the tunnel. Confronted with this great emergency the commissioners did just what any trustworthy and prudent business man would have done. They sought advice of eminent counsel, both here and in the East, municipal and improvement bond specialists of international reputation, who advised them that the Moffat Tunnel Act commanded them to complete the tunnel and authorized them to raise funds therefor not exceeding $43,000,000, the determined benefits. In order to avoid probable injury to workers and damage to the tunnel itself incident to delay, it was necessary to raise this money quickly. The supplemental bonds were prepared, issued and sold and the tunnel completed with the proceeds thereof. Practically all the bonds were sold to nonresidents, concededly innocent purchasers for value and without notice, almost all of whom appear as plaintiffs in the Boynton case.
All proceedings of the Moffat tunnel commission in this connection were open, notorious and widely published. Notwithstanding all the taxpayers of the district were advised of every action taken and although opportunities were afforded, no complaint or protest of any taxpayer was ever made. Not until this suit was filed, four months after the completion of the tunnel, had any taxpayer asserted the invalidity of the supplemental bonds.
From the record before us, the utmost that can be said against the tunnel commissioners is that they acted upon bad legal advice, but the force of this contention is obliterated by the determination of three courts that such advice was sound. The Moffat tunnel district did not seek the federal forum, they were forced to appear there by bondholders who had an absolute statutory right to have their controversy settled by such tribunal. Counsel for the land company knew every step taken in the federal court. No advantage was taken of them, on the contrary they were given every opportunity and repeatedly requested to appear and be heard in the United States courts. Warned that a judgment there would be urged as an estoppel here, they took this chance and persisted in their refusal to appear. In these circumstances we must hold that the judgment of the circuit court of appeals does not operate as a constructive fraud upon the taxpayers of the tunnel district. 3 Freeman on Judgments (5th Ed.) 2568, § 1233; United States v. Throckmorton, 98 U.S. 61, 25 L. Ed. 93; La Fitte v. Salisbury, 43 Colo. 248, 95 Pac. 1065; Boldenweck v. Bullis, 40 Colo. 253, 90 Pac. 634; Farncomb v. Denver, 64 Colo. 13, 171 Pac. 66; Golden Gate Bridge and Highway Dist. v. Felt (Cal.), 5 P.2d 585; Kentucky v. Indiana, 281 U.S. 163, 50 Sup. Ct. 275, 74 L. Ed. 784; Holt County v. National Life Ins. Co., 80 Fed. 686; Ashton v. City of Rochester, 133 N. Y. 187, 30 N.E. 965; Orcutt v. McGinley, 96 Neb. 619, 148 N.W. 586; Pear v. City of East St. Louis, 273 Ill. 501, 113 N.E. 60; Price v. Sixth Dist. Agricultural Ass'n, 201 Cal. 502, 258 Pac. 387; Howard-Sevier Rd. Imp. Dist. 1 v. Hunt, 166 Ark. 62, 265 S.W. 517; Young v. Town of Henderson, 76 N.C. 420. The Golden Gate Bridge and Highway Dist. v. Felt, supra, involved the validity of bonds issued for the construction of a suspension bridge across San Francisco bay. The officers of the improvement district claimed the bonds were good. The taxpayers, who said the bonds were illegal, were asked to, but did not, appear in an action brought to determine their validity. Taxpayers claimed this suit was collusive. The court said at page 591 of 5 P.2d: "Amici curiae were invited by petitioner and by this court to bring their clients into this proceeding by intervention, a procedure which has been heretofore permitted by this court * * *. Opportunity was also offered them, whether they intervened or not, to present to the court as fully as they might deem desirable, their objections to the proposed bond issue. * * * It surely cannot be said that this proceeding was brought to reach a collusive determination of the rights of such third parties, when they were urged to come into court and present their own views of the case.
"We are satisfied that this court may properly determine the issues hereinbefore mentioned, and that our determination will have the usual force and effect of a final judgment on those issues."
3. Counsel argue that "a void bond beyond the power of the corporate body to issue and contrary to the statute cannot be validated by a decree of court and any such decree will not constitute an estoppel by judgment, but may be collaterally attacked — because such decree is beyond the jurisdiction of the court." In other words, the circuit court of appeals was powerless to declare the supplemental bonds valid and its determination is not here conclusive. In support of this position they cite People v. Burke, 72 Colo. 486, 212 Pac. 837. There we held (p. 510), in construing a consent decree validating a contract authorizing the election of directors of a canal company in direct contravention of the law applicable. that "if the contract is void on its face, as contrary to public policy, it necessarily follows that a decree of a court which assumed to enforce it, is itself absolutely void as beyond its jurisdiction to render, and may be collaterally attacked and impeached in these two cases before us. The decree `transcends in its extent and character the law which is applicable to it.'" This case is not here controlling. There it was held that a court had no power to decree a procedure for the election of directors which was obviously, unmistakably and admittedly contrary to specific statutory enactment. Here the validity of the supplemental bonds depended upon a judicial interpretation of the Moffat Tunnel Act, the provisions of which were obviously and unmistakably susceptible of two constructions, one validating the supplemental bonds, the other invalidating them.
Counsel's premise that the bonds are void is unsound. Of course no court can declare a bond valid when it has no jurisdiction so to do or when it appears unquestionably that it is invalid. If the Moffat Tunnel Act had specifically provided, "No bonds or other evidences of indebtedness of any character whatsoever shall be issued and sold to pay for the tunnel," then there might have been some merit in this contention. But the act contains no such provision, on the contrary, it provides: "Section 6. It shall be the duty of the said Board * * * to provide for the construction of and to construct a transportation tunnel, * * *." "Section 8. The Board shall have power on behalf of said District: * * * (c). To construct, preserve, operate and maintain, or contract for the construction, preservation, operation, and maintenance of said tunnel and its approaches and all necessary works incidental thereto; * * *" "(h). The Board is hereby vested with all powers necessary and requisite for the accomplishment of the purposes for which this District is organized and capable of being delegated by the General Assembly of the State of Colorado; and no enumeration of particular powers hereby granted shall be construed to impair any general grant of power herein contained, nor to limit any such grant to a power or powers of the same class or classes as those so enumerated." "Section 10. (a). To pay for the construction of said tunnel, * * * and to pay interest on bonds issued as hereinafter provided for during the period of construction, the Board is hereby authorized to issue the negotiable bonds of said District in an amount not exceeding * * * $6,720,000." The issuance of such bonds was not mandatory, but discretionary. "Section 11. * * * The Board shall have power to levy special assessments upon all real estate within the District, except such real estate as is by this Act exempted, for the purpose provided in this act. Such special assessments to be made in proportion to the benefits to each piece of real estate accruing by reason of the improvements herein provided to be made and in accordance with the rules of apportionment to be adopted by the Board." "Section 20. This Act being necessary to secure and preserve the public health, safety, convenience and welfare, and being necessary for the prevention of loss of life and property and for the progress of the people of said Improvement District, shall be liberally construed to effect the purposes of this Act."
The recital of the foregoing salient provisions of the act would appear to conclusively demonstrate that the act is clearly and reasonably susceptible of two constructions; namely, that the bonds were valid because not in excess of assessed benefits or void because section 10(a) limited the total cost of construction to $6,720,000.
The determination of three courts that the supplemental bonds are good, irrefutably demonstrates that the bonds were not obviously bad and that the tunnel act was reasonably capable of a different construction than that claimed by the land company to be exclusive and conclusive.
We have already determined that the circuit court of appeals had jurisdiction to adjudicate the matters at issue and that the question of the validity of the bonds was there presented. Their validity depended upon a clearly apparent and reasonable construction of the act. Surely under such circumstances it would be improper to assume that the bonds were void and that being void no court had power to make them valid. To now say that the circuit court of appeals was powerless to decree their validity would annihilate the doctrine of estoppel by judgment. This we cannot do.
4. Counsel urge that the exclusive jurisdiction of the state court is not affected by the circuit court of appeals decree. This jurisdictional question hereinbefore has been considered and determined contrary to counsel's contentions.
For the foregoing reasons we must and do conclude that the circuit court of appeals had jurisdiction to determine the matters at issue therein, including the validity of the supplemental bonds; that it could proceed to such determination notwithstanding the suit in the state court was commenced first; that the Moffat tunnel district and its officers appeared on behalf of and represented in the federal court the taxpayers; that the record fails to disclose any fraud or collusion, actual or constructive, in connection with the Boynton case or the facts involved therein; that the decree there rendered was not by consent of the parties, but was the result of the exercise of a judicial consideration and determination; that the plea in bar is good and, therefore, that the Denver Land Company and those similarly situated should be and are now estopped from further prosecuting this action. Accordingly the plea in bar hereby is ordered sustained and the writ of error dismissed.
MR. JUSTICE CAMPBELL AND MR. JUSTICE BUTLER authorize me to say that they concur in this opinion, and that they do so with less reluctance because, after a consideration of the record and of the elaborate arguments, oral and printed, they have arrived at the conclusion that the so-called supplemental bonds are valid.
MR. JUSTICE BURKE concurs in the conclusion that the plea in bar is good.
MR. CHIEF JUSTICE ADAMS, MR. JUSTICE HILLIARD and MR. JUSTICE ALTER dissent.