This suit was brought to recover the sum of $2,170, with interest, alleged to be due on 62 coupons attached to bonds issued by the city of Lampasas. A jury trial was waived by the parties, and at the request of counsel for both parties the court made a finding of the facts. The court held that the plaintiff was entitled to recover on the coupons, and rendered a judgment in his favor for $2,479.86. The defendant, the city of Lampasas, sued out a writ of error. It is assigned as error that the court rendered a judgment against the city. The following are the facts as found by the court:

(1) That the citizens of the city of Lampasas, in Lampasas county, Tex., were by special act of the legislature, approved April 18, 1873, granted a charter as a municipal corporation, under the name of the "Corporation of the City of Lampasas," with boundaries containing an area of 553 acres, covering the original town plat and a considerable area not laid out in regular blocks. In this special charter it was provided that the qualified voters should elect a mayor and board of aldermen, consisting of eight members, to hold office for the term of two years, and until their successors should be elected and qualified, and it was further provided that the mayor and five aldermen should constitute a quorum for the transaction of business. It was also provided that the first election should be held within 30 days, and one thereafter on the first Monday in January of each alternate year thereafter, by the mayor and three aldermen. The act made no provision for dissolving the corporation, and no period of time was fixed for the expiration of the charter.

(2) Under this special charter the said mayor and aldermen were granted power, by ordinance, among other things, to construct waterworks, open, grade. and keep in repair the streets, build bridges, and open sewers; to impose and collect taxes, not exceeding 1 per cent. per annum; and to issue bonds for public improvements. The mayor and aldermen were authorized to appoint a city marshal, who should also be ex officio assessor and collector of city taxes, and also to appoint a secretary and city attorney; but neither the office of treasurer nor any other officer than those named were provided for.

(3) That officers were elected, and the said municipal government was exercised by them, under the said special charter, from 1873 until 1876, when a mayor and board of aldermen were elected who favored abolishing the said municipal government, and they by formal resolution decided to resign, and did so, and abandoned their said offices, and thereafter no steps were taken. or action of any kind had, under this special charter, until March, 1890, after the decision of the supreme court of Texas in the case of Largen v. State. reported in 76 Tex. 323, 13 S. W. 161, hereinafter more fully referred to.

(4) That the said city of Lampasas was in 1873, and has since continued to be, the county seat of Lampasas county, and had a population in 1876 of about 800. That until the year 1882 the said town was without railroad facilities. when, upon advent of a railroad, it began to grow rapidly, and by April, 1883, had a population of about 4,500 people, with street railroad and other improvements. About 1884 the population began to decline, and continued to decline until about 1890.

(5) That at all times the business part of the town has been chiefly confined to the court-house square and streets leading out from it, and has been within the bounds of the said special charter; but during and since 1882 business houses were built near the railroad depot, outside of said bounds, and outside of the present limits, but inside of the boundaries of 1883, and business has been since transacted therein.

(6) That after the advent of the railroad numerous additions were laid out to the town, and residences built thereon by persons doing business in the town, and it continued to grow in population, until it reached about 5,000 in 1884 and 1885, when the decline in population began.

(7) That in February, 1883, a petition was presented to the county judge of said Lampasas county, by more than 50 qualified voters living in and around the limits of said town, asking that an election be ordered to determine wheth

er the persons living within the limits in said petition set out should incorporate as a city of more than 1,000 inhabitants, under the provisions of the general laws of Texas, as contained in title 17 of the Revised Statutes. Upon this petition the said county judge made his order, and an election was held, resulting in a majority vote in favor of said corporation,-some of those voting living inside, and some outside, of the limits prescribed by said charter; and upon return thereof the said county judge, by proper order, declared the said city duly incorporated, with the limits in said petition set out, and which contained an area of 1,495 acres, embracing practically all of the lands included within the said special charter, and extending nearly one-half mile west, north, and east thereof, to include the railroad depot.

(8) That, in pursuance to this incorporation, a municipal government was organized, with all the officers prescribed in the general charter contained in said title 17 (some of the aldermen and other officers residing outside of the limits prescribed by said special act), and exercised all the powers and functions of a city of over 1,000 inhabitants, organized under the general laws of the state of Texas, levying and collecting taxes, and prescribing and enforcing police regulations, without any one contesting or disputing the validity of its lawful rights to act as such, until November 4, 1889, when, upon the relation of a citizen and taxpayer, the district attorney, himself also a resident taxpayer, filed an information in the nature of quo warranto against T. J. Largen, who was mayor, and all other persons assuming to act as city officers under this incorporation by vote of the people, alleging that the said incorporation by vote of the people in 1883 was invalid, because of the fact that the said special charter granted in 1873 had never been repealed, and that the action of the officers in resigning in 1876 was without effect, and praying that the said Largen and his associates be ousted from office, and the said incorporation of 1883 be declared invalid.

(9) That said suit was instituted by the said district attorney, without any direction by the attorney general or other executive officer of the state, and without making any of the creditors of said incorporation parties, and upon trial resulted in a judgment ousting the said Largen and associates from office, which judgment, on appeal, was affirmed by the supreme court of Texas on the 31st day of January, 1890, and its opinion may be found in 76 Tex. 323, 3 S. W. 161.

(10) That after the decision of the supreme court affirming said judgment of ouster, the said Largen and associates ceased to act, and upon an order for the election of mayor and aldermen under the special charter of 1873, made by the county judge of Lampasas county, an election was held by persons living within the limits of said charter on the 18th day of March. 1890, and the persons elected as mayor and aldermen met and organized March 19, 1890, and on March 22, 1890, by unanimous vote of the city council it was resolved to accept the provisions of "title 17 of the Revised Statutes of the state of Texas in lieu of the charter granted by the legislature," and a copy of this resolution was duly certified and recorded as required by law, and said city at once assumed to act under the general charter provided in said title 17, and is now acting thereunder.

(11) That on December 26, 1890, by vote of a majority of the resident citizens of the added territory hereinafter mentioned, there was added to the limits of the city, as set out in the special charter of 1873, all of the land west of the same which was included within the limits of 1883, and one tier of blocks additional, since which time the said city government has assumed jurisdiction over said added territory, but has not assumed any jurisdiction over that part lying north and east of said original limits, and which was included within the limits of 1883.

(12) The area of the territory added in December, 1890, was 428 acres, which embraced the greater part of the residence property of the city outside of its original charter limits of 1873.

(13) That the said territory lying north and east of said original limits, and which was within the limits of the charter of 1883, as adopted by the vote of the people, has situated thereon 77 residence houses, occupied by persons 90 per cent. of whom follow some kind of business within the town, as defined by charter limits of 1873. The following map, introduced in evidence, shows

the boundaries prescribed by the act of 1873, the boundaries defined in the order of the county judge in 1883, the boundaries of the territory added in December, 1890, the territory subdivided into lots, blocks, etc.:

Territory subdivided into Lots and Blocks. Farked".

Boundaries prescribed by Act of 1873, marked

553 acres)

Boundaries prescribed by order of County Judge la 1883,marked• --- · ----
Boundaries of territory added in December 18 marked.

1495 acres,
428 acres

(14) It was proven that all the books and papers of the city government of the city of Lampasas under the charter of 1873 and 1883 were lost, and could not be found, except the assessment rolls for the year 1889, from which it ap pears that the assessed value of all lands within the city limits of 1889 was $664,429, and that the personal property was about $400,000, and that the said assessment was divided as follows as to the lands, no division being shown as to personal property, viz.: Within old limits of 1873, $452,444.00; within the part added in December, 1890, $157,915; within the parts north and east, $68,970.

(15) The witness who made the foregoing examination states that the said rolls show the names of 438 voters, divided as follows, viz.: Residing within old limits of 1873 were 175; residing on part added in December, 1890, 167; residing on parts north and east, 96.

(16) From the facts recited in the last two findings, the court finds that the city of Lampasas as now organized, and as it has existed since 1890, embraces about 90 per cent. in value of all real property situated within the city as organized under the charter adopted by vote of the people, and situated therein when the city government under Largen was dissolved, 66 per cent. being in original limits, 24 per cent. in territory added in 1890, and 10 per cent. in territory now excluded, and that of the number of resident voters therein at the time about 22 per cent. are shown to have resided outside the present limits, and of these 90 per cent. are shown to have followed some line of business in said original charter limits of 1873, which is shown to contain all the busi ness part of the city except that near the depot; and from these facts the court finds that the present charter limits embrace substantially all of the persons and property embraced within the limits of the said city of Lampasas as it existed

under the charter adopted in 1883 by vote of the people, and recognized and acted upon by them as a valid city government from the time of its adoption until the quo warranto proceedings against Largen and associate officers in 1889, during which time the officers assuming to act as officers under said general charter were elected in good faith by all persons residing within the said limits of the charter of 1883, and as such officers in good faith discharged the duties of their respective offices, without dispute by any person residing within the restricted limits of the charter of 1873, or by persons living outside of the

same.

(17) The court further finds that in January, 1885, the city council of said city of Lampasas, elected under the provisions of the general charter contained in title 17 aforesaid, and assuming to act thereunder, and not under the provisions of the charter of 1873, in good faith, and in response to a general demand of the business men of the city for fire protection, and to furnish water to the city, then having a population of about 4,500, determined to build a system of waterworks for the city, and to pay for the same with the proceeds of sale of bonds of the city, and to this end, after full and open discussion, did pass ordinances to the following effect, viz.:

"Ordinance No. 59 [Printed on Back of Bond].

"An ordinance to be entitled ‘An ordinance to provide for the issuance of waterworks bonds of the city of Lampasas and to provide for the payment of the interest and sinking fund of said bonds.'

"Section 1. Be it ordained by the city council of the city of Lampasas, that the mayor of said city be, and he is hereby, authorized and required to have engraved or printed coupon bonds of the city of Lampasas, with semiannual interest 'coupons attached, falling due on the first days of January and July of each and every year from and after their date at the rate of 7 per cent. per annum interest; said bonds to be styled 'Lampasas City Waterworks Bonds.'

"Sec. 2. Said bonds shall be drawn to mature at fifty years from date of issuance, with the option reserved to the city council to redeem and retire ten thousand dollars of the principal of said bonds at the end of ten years from the date of the issuance of said bonds, and to redeem and retire five thousand dollars of the principal of said bonds at the end of each period of five years from and after said ten years from date of issuance.

"Sec. 3. Said bonds shall be issued to the amount of forty thousand dollars ($40,000), or so much thereof as may be necessary, shall be dated at the time of issuance, and shall bear interest from said date of issuance.

"Sec. 4. Said bonds shall, at the time of their issuance, be dated and signed by the mayor, countersigned by the city secretary, and registered by the city treasurer.

"Sec. 5. The city secretary and city treasurer shall each keep a record of the number, date of issuance, and amount of said bonds, and the number, amount, and date of maturity of the coupons thereto attached, and shall indorse the countersigning and registration thereof on each of said bonds.

"Sec. 6. Said bonds shall be issued in sums of one thousand dollars each, payable to bearer, and the principal and interest thereon shall be payable at S. M. Swenson & Sons' Bank, New York City, or at the office of the city treasurer in Lampasas, the interest being payable semiannually on the coupons attached.

"Sec. 7. For the purpose of providing for the payment of the interest on said bonds, and to provide a sinking fund for the redemption of the same, a special ad valorem tax of twenty-five cents on every one hundred dollars' worth of property is hereby levied and ordered to be assessed and collected for the year 1885, and for each and every year thereafter until said bonds, principal and interest, are paid, on all property subject to taxation within the city of Lampasas, and rendered to and assessed by the city assessor and collector: provided, however, that the city council shall, from time to time, make a proportionate reduction in the amount or rate of the tax hereby levied whenever the whole amount af said tax shall not be necessary to meet the interest and sinking fund on the bonds of this issue then outstanding.

"Sec. 8. To provide funds for the payment of said interest and sinking fund, there is hereby appropriated out of the revenues of the city, arising from the

net earnings of the waterworks, a sufficient sum annually, beginning with the year 1885, to make up the deficiency (if any there be) of said interest and sink. ing fund after the collection of the special tax herein provided for, and the sums arising from the net earnings of the waterworks shall not be drawn upon or disbursed for any other purpose until said interest and sinking fund is fully provided for in each year, and the city treasurer shall keep a separate account of all moneys derived from said tax and net earnings of waterworks, to be known and designated on his books and reports as the 'Waterworks Fund.'

"Sec. 9. At the end of ten years from the date of issuance of said bonds, or as soon thereafter as practicable, the city council may designate by an order entered of record on the minutes the numbers and amount of the principal (not exceeding $10,000.00) and date of payment of such bonds of this issue as the city desires to redeem, said numbers being designated by lot or otherwise, as the council may then determine, provided the numbers designated are consecutive, and a copy of such order shall be published in some newspaper in the city of Lampasas, and such other notice, personally or otherwise, may be given to the holder of such designated bonds, their agents or representatives, as the council may determine at the time of such designation, and such designated bonds shall be paid upon presentation, and shall cease to bear interest from and after the date of payment fixed by said order; and at the end of each period of five years thereafter five thousand dollars ($5,000.00) of the principal of said bonds may be redeemed in like manner.

"Sec. 10. The bonds herein provided for shall be sold at not less than par, and in such manner as is or may be hereafter provided by ordinance, resolution, or otherwise, and the proceeds of said bonds shall be devoted exclusively to the construction of a suitable system of waterworks for fire protection, family supply, and other public and private purposes, and for the purpose of such fire department supplies as may be deemed necessary by the council; said system of waterworks to be operated in such manner as may be hereafter provided by ordinance, resolution, or otherwise. "Filed January 6th, 1885.

"Passed January 6th, 1885.

"I approve the above ordinance, January 6th, 1885.

S. S. Potts, Secretary.
S. S. Potts, Secretary.

"W. J. Standefer, Mayor of City of Lampasas.

"Attest: S. S. Potts, Secretary."

"Ordinance No. 60 [Printed on Back of Bond].

"An ordinance entitled 'An ordinance to provide for the collection of a special tax for the payment of interest and to provide a sinking fund for the redemption of waterworks bonds of the city of Lampasas.'

"Section 1. Be it ordained by the city council of the city of Lampasas, that the city assessor and collector be, and he is hereby, required to assess and collect a special tax of twenty-five cents on the one hundred dollars' worth of all property, subject to taxation within the city of Lampasas, rendered to and assessed by him for the year 1885, and for each and every year thereafter, for the payment of the semiannual interest, and to provide a sinking fund for the redemption of the waterworks bonds of the city of Lampasas, until said bonds, principal and interest, are paid: provided, however, that the city council shall from time to time make a proportionate reduction in the amount of the tax hereby levied whenever the whole amount of tax shall not be necessary to meet the interest and sinking fund on the bonds then outstanding. "Filed January 6th, 1885. "Passed January 6th, 1885.

S. S. Potts, Secretary. S. S. Potts, Secretary. "W. J. Standefer, Mayor of City of Lampasas.

"I approve the above ordinance, January 6th, 1885.

"Attest: S. S. Potts, Secretary."

"Ordinance No. 65 [Printed on Back of Bond].

"An ordinance to be entitled 'An ordinance to amend section 9 of Ordinance No. 59, passed and approved January 6th, 1885.'

"Section 1. Be it ordained by the city council of the city of Lampasas that section 9 of Ordinance No. 59, passed and approved January 6th, 1885, be so amended so as to read hereafter as follows: