The Chief-Justice
delivered the opinion of the court.
It is not a question open to controversy that when a political community, like a county, city or town, shall be divided and its territory reduced or sét apart by legislative authority, the Legislature may make regulations not only to apportion the property of the corporate body among the new members or communities created, but to throw the obligation to pay the debts of the entire body upon the several parts in proportion to the taxable wealth of each. This was sufficiently considered in the case of the County Commissioners vs. King, 13 Fla., 451, 472. In the division of Columbia county the liability of the new counties created was preserved, and provision made for ascertaining the just proportion which should be paid by each of the existing indebtedness of the original county. New River (now Bradford)' county was one of the new counties erected from Columbia. Baker county, then a part of New River, had no existence except as a portion of the latter.
The liability of the entire property of the county to pay [519]*519its debts was preserved by the Legislature in the act providing for the organization of Baker by expressly providing that the fro rata amount of the railraod bonded debt of Columbia county properly chargeable to New River, should be apportioned between New River and Baker in the ratio of the taxable property remaining in each. The act of the Legislature, therefore, did not create an indebtedness- and impose it upon Baker county, but intended that its due proportion of the debt should be paid by it as though-there had been no division of the parent county. :
It is claimed that under the present Constitution Baker county cannot issue bonds to pay its portion of this indebtedness, and especially that the Commissioners cannot- dó so without a compliance with the act of 1877. But this indebtedness and the obligation to pay it existed long before 1868, and no subsequent constitutional or legislative enactment can impair the obligation.
If, therefore, the county of New River (or Bradford), by its proper officers, complied with the requirements of the statute in this regard, its right to demand and receive from Baker county its bonds for its fro rata share of theindebtedness mentioned is unquestionable.
The return of the respondents denies that Bradford county has ever complied with the requirements of the act to organize Baker county, avers that New River (Bradford) county refused to accept its share of the railroad stock from Columbia county, and to issue its bonds to Columbia county; that Bradford has not offered any such stock or other consideration for the issuing of such bonds by Baker county to Bradford.
Examining the petition of the relators we find that it is set forth that New River county refused to issue to Columbia county its bonds' for the amount of stock which the County Commissioners of Columbia had set apart and trans[520]*520ferred to New River, to-wit: to the amount of three hundred and thirty-three shares, and it is hot alleged that New River or Bradford county has issued to Columbia county its due proportion of bonds as required by law, though petitioners say that they have been commanded by a writ of mandamus under date of August 18,1880, to issue and deliver the same. Further, the petitioners do not allege that they have “ set apart and transferred ” to Baker county its pro rata shares of the railroad stock as required by law, but say thej? are willing to do so “ whenever she (Bradford) is in a condition so to do, or the same is available.”
This is not enoiigh. Bradford must have issued its bonds to Columbia before she can demand of Baker a pro rata contribution under the statute. ’ If is also a condition precedent that Bradford county shall “ set apart and transfer ” to Baker county her due proportion of the stock before Bradford can demand the issue of bonds by Baker. Neither of these conditions have been complied with by Bradford county, as appears by the petitioners’ showing.
Respondents say that they should not be compelled to issue bonds in exchange for said railroad stock, because that the stock in 1861 was valuable, and the stock transferred at that time would have been advantageous to Baker county, whereas the stock is now of no value and will not be a consideration for the issuing of bonds as it would have been if Bradford county had promptly complied with the law. To this it must be said that the obligation to pay for the stock was and is upon both counties, ’and the stock was the property of both counties from and after February 5,1861, when it was “set apart and transferred” by Columbia county to New River, and it is not shown that the decrease in its value was owing to any wrongful act or negligence of New River or Bradford., And besides, it is provided in the act (section 22) under which the bonds were [521]*521originally issued in exchange for stock that no stock held .by any county shall be assignable by such county until the bonds shall be paid, except in, exchange for such bonds. From 1856 to 1861 Baker was part and parcel of the territory of Columbia and New Eiver counties, and it is not to be assumed, in the absence of anything alleged to the contrary, that the people of Baker or Bradford have ever evinced a desire to possess and pay for such stock, or that the stock has ever been available to pay and cancel the bonds.
The point made by respondents that Baker county was not a party to the mandamus proceedings of Columbia against Bradford county is not a valid objection to this proceeding. While Baker county may not be bound by such proceedings, not being a party thereto, she is certainly bound to pay her pro rata of this indebtedness of New Eiver or Bradford, and it is competent that Baker may¿ in a proceeding against her, show the correct amount chargeable against her.
The respondents say further that the petition does not show correctly the taxable property of Baker county in 1861, upon the basis of which under the act of February 8, 1861, the amount of her said liability should be found. This portion of the return does not make an issue upon any fact stated by the relators, and is therefore not a traverse. The rule is that a return to an alternative writ (or as in this case showing cause upon petition filed) shall contain either a positive denial of the facts stated, or state other facts sufficient in law to defeat the relators’ right. High on Ex. Rem., §460, et seq.; Com. Bank vs. Canal Com’rs, 10 Wend., 25.
Belators say they arrived at the pro rata amount of stock and bonds to be apportioned between Bradford and Baker from the assessment rolls in the Comptroller’s office as certified by the Comptroller.
[522]*522The act creating Baker county (1861) requires the County Commissioners of Baker county, together with the Judge of Probate of said county, to transfer (certify) the amount of taxable property in Baker county to the Judge of Probate of New River (Bradford) who shall set apart their share of said railroad stock for Baker county and take the said bonds, &c.
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The Chief-Justice
delivered the opinion of the court.
It is not a question open to controversy that when a political community, like a county, city or town, shall be divided and its territory reduced or sét apart by legislative authority, the Legislature may make regulations not only to apportion the property of the corporate body among the new members or communities created, but to throw the obligation to pay the debts of the entire body upon the several parts in proportion to the taxable wealth of each. This was sufficiently considered in the case of the County Commissioners vs. King, 13 Fla., 451, 472. In the division of Columbia county the liability of the new counties created was preserved, and provision made for ascertaining the just proportion which should be paid by each of the existing indebtedness of the original county. New River (now Bradford)' county was one of the new counties erected from Columbia. Baker county, then a part of New River, had no existence except as a portion of the latter.
The liability of the entire property of the county to pay [519]*519its debts was preserved by the Legislature in the act providing for the organization of Baker by expressly providing that the fro rata amount of the railraod bonded debt of Columbia county properly chargeable to New River, should be apportioned between New River and Baker in the ratio of the taxable property remaining in each. The act of the Legislature, therefore, did not create an indebtedness- and impose it upon Baker county, but intended that its due proportion of the debt should be paid by it as though-there had been no division of the parent county. :
It is claimed that under the present Constitution Baker county cannot issue bonds to pay its portion of this indebtedness, and especially that the Commissioners cannot- dó so without a compliance with the act of 1877. But this indebtedness and the obligation to pay it existed long before 1868, and no subsequent constitutional or legislative enactment can impair the obligation.
If, therefore, the county of New River (or Bradford), by its proper officers, complied with the requirements of the statute in this regard, its right to demand and receive from Baker county its bonds for its fro rata share of theindebtedness mentioned is unquestionable.
The return of the respondents denies that Bradford county has ever complied with the requirements of the act to organize Baker county, avers that New River (Bradford) county refused to accept its share of the railroad stock from Columbia county, and to issue its bonds to Columbia county; that Bradford has not offered any such stock or other consideration for the issuing of such bonds by Baker county to Bradford.
Examining the petition of the relators we find that it is set forth that New River county refused to issue to Columbia county its bonds' for the amount of stock which the County Commissioners of Columbia had set apart and trans[520]*520ferred to New River, to-wit: to the amount of three hundred and thirty-three shares, and it is hot alleged that New River or Bradford county has issued to Columbia county its due proportion of bonds as required by law, though petitioners say that they have been commanded by a writ of mandamus under date of August 18,1880, to issue and deliver the same. Further, the petitioners do not allege that they have “ set apart and transferred ” to Baker county its pro rata shares of the railroad stock as required by law, but say thej? are willing to do so “ whenever she (Bradford) is in a condition so to do, or the same is available.”
This is not enoiigh. Bradford must have issued its bonds to Columbia before she can demand of Baker a pro rata contribution under the statute. ’ If is also a condition precedent that Bradford county shall “ set apart and transfer ” to Baker county her due proportion of the stock before Bradford can demand the issue of bonds by Baker. Neither of these conditions have been complied with by Bradford county, as appears by the petitioners’ showing.
Respondents say that they should not be compelled to issue bonds in exchange for said railroad stock, because that the stock in 1861 was valuable, and the stock transferred at that time would have been advantageous to Baker county, whereas the stock is now of no value and will not be a consideration for the issuing of bonds as it would have been if Bradford county had promptly complied with the law. To this it must be said that the obligation to pay for the stock was and is upon both counties, ’and the stock was the property of both counties from and after February 5,1861, when it was “set apart and transferred” by Columbia county to New River, and it is not shown that the decrease in its value was owing to any wrongful act or negligence of New River or Bradford., And besides, it is provided in the act (section 22) under which the bonds were [521]*521originally issued in exchange for stock that no stock held .by any county shall be assignable by such county until the bonds shall be paid, except in, exchange for such bonds. From 1856 to 1861 Baker was part and parcel of the territory of Columbia and New Eiver counties, and it is not to be assumed, in the absence of anything alleged to the contrary, that the people of Baker or Bradford have ever evinced a desire to possess and pay for such stock, or that the stock has ever been available to pay and cancel the bonds.
The point made by respondents that Baker county was not a party to the mandamus proceedings of Columbia against Bradford county is not a valid objection to this proceeding. While Baker county may not be bound by such proceedings, not being a party thereto, she is certainly bound to pay her pro rata of this indebtedness of New Eiver or Bradford, and it is competent that Baker may¿ in a proceeding against her, show the correct amount chargeable against her.
The respondents say further that the petition does not show correctly the taxable property of Baker county in 1861, upon the basis of which under the act of February 8, 1861, the amount of her said liability should be found. This portion of the return does not make an issue upon any fact stated by the relators, and is therefore not a traverse. The rule is that a return to an alternative writ (or as in this case showing cause upon petition filed) shall contain either a positive denial of the facts stated, or state other facts sufficient in law to defeat the relators’ right. High on Ex. Rem., §460, et seq.; Com. Bank vs. Canal Com’rs, 10 Wend., 25.
Belators say they arrived at the pro rata amount of stock and bonds to be apportioned between Bradford and Baker from the assessment rolls in the Comptroller’s office as certified by the Comptroller.
[522]*522The act creating Baker county (1861) requires the County Commissioners of Baker county, together with the Judge of Probate of said county, to transfer (certify) the amount of taxable property in Baker county to the Judge of Probate of New River (Bradford) who shall set apart their share of said railroad stock for Baker county and take the said bonds, &c.
.Some confusion may have been created by the recent change of the name of “Judge of Probate” to County Judge, but it is evident that the legislative intention expressed in the sixth section is that the County Commissioners of Baker county shall give to Bradford county a statement of the taxable property in Baker in 1861 in order that there may be a proper adjustment of the amount of the bonded indebtedness chargeable to Baker. In case the Board of County Commissioners of Baker shall refuse to give such statement, it may then be considered what steps may be proper to obtain the necessary data. The Judge of Probate at the time’ of the passage of the act was ex-officio chairman of the Board of County Commissioners, and the County Commissioners under the present law are the legitimate successors to the former Board in the management of the county business. But it is unnecessary to discuss this matter further, because in the present stage of the case no judgment can be given. It is to be hoped that this unfortunate controversy may be arranged by the , parties without further expensive appeals to the courts.
The judgment awarding the writ of mandamus herein is reversed with costs.