In re Difference & Controversy between E. M. Derby & Co. & City of Modesto

E. M. Derby & Co., a corporation and taxpayer of the city of Modesto, claiming that certain bonds issued by said city to the aggregate amount of eighty-five thousand dollars, tobe used for the construction of a system of water works and sewers, are illegal and void, and because thereof that no tax can be lawfully levied or collected to pay the same, agreed with the city of Modesto, the board of trustees of said city, the members of said hoard, the treasurer of said city and the Oakland Bank of Savings, a corporation, which was the original purchaser and holder of said bonds, to submit the question of the validity of said bonds to the supe *517 rior court of Stanislaus county, upon an agreed case under the provisions of section 1138 of the Code of Civil Procedure.

Judgment was given in said court against appellant, from which it appeals upon said agreed statement.

Before considering the points specially made by appellant it should be observed that this contention was not made by appellant prior to the sale and delivery of the bonds to the Oakland Bank of Savings; but these questions are now presented as between the taxpayers of the city of Modesto and the holder of the bonds…