Maxey, District Judge,
(after stating the facts as above.') 1. It is insisted by the plaintiff that the original section 9, art. 8, of the constitution of 1876, should apply to this caso, upon the ground that the bonds of November 12, 1888, were issued in lieu of the bonds authorized by orders of the commissioners’ court of May 14 and 29, 1883, which latter were canceled and destroyed. But it will be observed the plaintiff by his pleadings asserts no rights under the orders of the commissioners’ court authorizing the first issue of bonds, and no reference is made in the petition to any contracts, transactions, or bonds issued antecedent to November 12th. On the contrary, the suit is for recovery upon interest coupons detached from bonds bearing date November 12, 1883. These bonds were registered November 22, 1883, and could not have been delivered to Milliken & Co., in exchange for those first issued, until after that dale. The order of the commissioners’ court, providing for levy of a tax to pay interest on the bonds and create a sinking fund, was passed November 12,1883, and the bonds on their face purport to have been executed on that day. Plaintiff purchased, March 12, 1884, 30 of the bonds delivered to Milliken & Co., (Nos. 1 to 30,) and a third party the remainder of the 35, (Nos. 31 to 35,) at the same time. The 5 left (Nos. 35 to 40) to complete the issue of 40 bonds were not actually issued by the county until a later period. The amendment of section 9, art. 8, of the constitution, was adopted by the people in August, 1883. The purchaser of the bonds therefore bought with notice that they were issued subsequent to the last-mentioned date, and in obedience to constitutional provisions then in force. If Milliken & Co. were before the court asserting rights under their contract to construct the court-house, there would be force in the objection that subsequent amendments to the constitution could not be held to destroy or impair their rights under the pre-existing contract. But such is not the present case. The plaintiff is a mere purchaser of the bonds in open market, and suing for interest due upon the same. He claims no rights as assignee or otherwise under the contract with Milliken & Co., but merely as the holder of the bonds, and no reason is perceived why the amendment to section 9, art. 8, should not be applied as law in this case. The claims of Mil-liken <fc Co. growing out of their contract with the county cannot be here inquired into. See Insurance, Co. v. Middleport, 124 U. S. 548, 8 Sup. Ct. Rep. 625; Norton v. Dyersburg, 127 U. S. 176, 8 Sup. Ct. Rep. 1111; Buchanan v. Litchfield, 102 U. S. 293. If plaintiff could rightfully claim the protection of the original section 9, art. 8, of the constitution, because it was in force June 18, 1883, when the commissioners’ court ordered the delivery of $35,000 in bonds to Milliken & Co., then for a like reason he should bo held to the situation in which Milliken & Co. were placed by the action of the court in other respects at that time. Going hack to June 18th, we find no provision whatever was made for levying and collecting a tax to pay the interest on the bonds and provide a sinking fund; and it admits of serious question, in view of the imperative mandate of section 7, art. 11, of the constitution, whether the collection of bonds issued pursuant to the June order could, under any [56]*56circumstances, be enforced. Bank v. City of Terrell, 78 Tex. 450, 14 S. W. Rep. 1003. See, also. City of Terrell v. Dessaint, 71 Tex. 770, 9 S. W. Rep. 593.
2. The defendant attacks the validity of the entire issue of 40 bonds, because they were issued partly for jail and artesian well purposes; the c'ounty being, it is contended, without power to execute its negotiable bonds for the purposes specified. Attention will be first directed to bonds numbered from 1 to 35, which it is claimed were issued partly to construct a jail, leaving bonds 36 to 40 for separate consideration. The county had, November 12, 1883, no express authority, granted by the constitution and laws of the state, to issue negotiable bonds, to build a •jail. And the question arises, did it possess implied power to issue bonds for such purpose? In Claiborne Co. v. Brooks, 111 U. S. 406, 407, 4 Sup. Ct. Rep. 489, it is said by the court:
"Our opinion is that mere political bodies, constituted as counties are, for the purpose of local police and administration, and having the power of levying taxes to defrayall public charges created, whether they are orare not formally invested with corporate capacity, have no power or authority to make and utter commercial paper of any kind, unless such power is expressly conferred upon them by law, or clearly implied from some other power expressly given, which cannot be fairly exercised without it.”
Merrill v. Monticello, 138 U. S. 673, 11 Sup. Ct. Rep. 441; Concord v. Robinson, 121 U. S. 165, 7 Sup. Ct. Rep. 937.
“Even where there is authority,” says the court, “to aid a railroad, and incur a debt in extending such aid, it is also settled that such power does not carry with it any authority to issue negotiable bonds, except subject to the restrictions and directions of the enabling act.” Young v. Clarendon Tp., 132 U. S. 347, 10 Sup. Ct. Rep. 107; Merrill v. Monticello, supra; Daviess Co. v. Dickinson, 117 U. S. 657, 6 Sup. Ct. Rep. 897.
The question of the character and extent of the power possessed by a state political or municipal corporation is one of state policy, and the decisions of the supreme court of this state will be regarded as authoritative, touching the power of its counties to issue negotiable securities. Speaking for the supreme court, in Claiborne Co. v. Brooks, supra, Mr. Justice Bradley employs this language:
“It is undoubtedly a question of local policy with each state what shall be the extent and character of the powers' which its various political and municipal organizations shall possess; and the settled decisions of its highest courts on this subject will be regarded as authoritative by the courts of the United States, for it is a question that relates to the internal constitution of the body politic of the state. ”
In Merrill v. Monticello, supra, Mr. Justice Lamar says:
“In Gause v. City of Clarksville, 5 Dill. 165, the court, in an able discussion of the inherent and incidental authority of municipal corporations, holds that whether the municipal corporation possesses the power to borrow money and to issue negotiable securities therefor depends upon a true construction'of its charter and the legislation of the state applicable to it.”
[57]*57“It may be considered,” says the supreme court, “settled law in this state that one of its counties cannot issue bonds without an act of the legislature conferring that power.” Nolan Co. v. State, (Tex. Sup. Ct.) 17 S. W. Rep. 826; Robertson v. Breedlove, 61 Tex. 316. The case of Nolan Co. v. State is also authority for holding that counties in Texas were without power, under tho act of February 11, 1881, to issue bonds for constructing jails. The plaintiff in this causo sues upon coupons detached from bonds issued under the same act, and pursuant to a contract executed bjr the county and the contractors, Milliken & Co., for the construction of a jail and a court-house. Both buildings wore constructed by tho contractors in consideration of the bonds. Hence, following tho Nolan County Case, which is similar in all essential respects to the case now before the court, tho bonds issued for the jail were unauthorized by law. But it does not result that they wero void in the hands of innocent purchasers. Upon this point, the observations of the court in that case are especially pertinent and appropriate here:
“Although we hold that the commissioners’court of Nolan county exceeded its authority in issuing bonds to Martin, Burns & Johnson for the constrac-jon of a jail, it does not follow that they may not be a valid indebtedness, in part, at least, against the county. They are payable to bearer, and in all other respects they are regular upon their face. They recite that they were issued for the purpose of erecting a court-house for Nolan county, and in pursuance of the authority conferred by the act of .February 11, 1881. They also purport to have been registered by the treasurer of the county. The state is admitted to be holder for value of the four bonds of this series, which are in part the foundation of this suit; and it is also admitted that at the time of their purchase its agents had no actual notice of any fact which impaired their validity. The county of Nolan had no court-house, and therefore the commissioners’ court liad power to issue bonds for the erection of such a structure, containing ail the recitals necessary to show tho authority for the creation of the debt. If a purchaser wore bound to inquire into the existence of the fact which empowered the court to issue bonds to build a court-house, and to know that the county had no court-house, in view of the recitals upon the face of the obligations he was bound to iook no further. He had the right to rely upon the truth of such recitals, and, having paid value for the bonds without actual knowledge of their illegality, the county would be estopped to set up that they were not issued for the purpose for which they purported to be issued. Chambers Co. v. Clews, 21 Wall. 321; Wilson v. Salamanca, 99 U. S. 504; Marcy v. Oswego, 92 U. S. 640; Humboldt Tp. v. Long, Id. 644; Daciess Co. v. Huidekopar, 98 U. S. 100. We conclude, therefore, that the four bonds issued to Martin, Burns <& Johnson, now held by tho state, are valid obligations against the county, unless that entire issue was in excess of the amount of indebtedness which the court was authorized by law to create. ”
For like reasons, bonds numbered 2 to 85, inclusivo, held as they are by innocent purchasers, are valid obligations against Howard county, “ unless that entire issue was in excess of the amount of indebtedness which tlie court was authorized by law to create.”
3. What amount of negotiable bonds was Howard county authorized to issue on November 12, 1883, for the purpose of constructing a courthouse? That it had power to issue bonds in some amount cannot be [58]*58questioned, as the first section of the act expressly confers authority to issue bonds, “with interest coupons attached, in such amount as may be necessary to erect a suitable building for a court-house.” But the third section, which must be construed with preceding sections of the act, contains a limitation upon the power of the county as to the amount which may be issued. The act under discussion was construed by the supreme court of this state in Russell v. Cage, 66 Tex. 432, 433, 1 S. W. Rep. 270, and the court there says:
“The other question presented is whether a tax of one-fourth of one per cent, levied annually for ten years upon $1,750,000 of property will liquidate $27,000 of bonds bearing interest at the rate of eight per cent, per annum. Act Feb. 11, 1881, § 3. The bonds may run for fifteen years, redeemable at the pleasure of the county. They are not required to be paid in ten years, but no more shall be issued than will — that is, may or can — be liquidated by the given tax in the stated period. The third section of the act does not provide for the payment of the bonds, but limits the amount of bonded indebtedness authorized by the law. This cannot be such an amount as will be paid in ten years, when the act expressly provides that the bonds may run for fifteen years, but the amount is such as may be paid by the prescribed tax in ten years. The county is to ascertain' the limit upon its power to issue bonds by solving the problem put in the third section. The result of that calculation depends upon the time and manner of applying the proceeds of the tax, not actually in the future, but in the calculation. * * * The object of the law was to fix a uniform and certain standard of authority, applicable to all counties. This standard is gauged by the financial condition of the county. The interest it has to pay depends upon its credit, and the amount of the debt the county may incur depends directly on the interest borne by the bonds and its taxable wealth. These are the given factors, from which to ascertain the extent of the county power. There is no element of uncertainty. The sum for which bonds may be issued is the sum which, together with interest at the given rate, could be liquidated by ten annual stated payments.”
It is said by the court in the Nolan County Case that “ the question of excess in the amount of indebtedness depends upon the construction of the statute.” And—
“It must be interpreted in the light of the constitutional provisions which relate to the same subject-matter. In Bank v. City of Terrell, 78 Tex. 450, 14 S. W. Rep. 1003, section 9 of article 8 of the constitution, as amended in 1883, was construed; and it was held that the amount of indebtedness which counties, towns, and cities were authorized to create for the erection of public buildings, etc., was limited to 25 cents upon $100 worth of property, as shown by the assessment rolls of the municipality. The word ‘ valuation,’ as used in the section, was held to mean the value as fixed by competent authority for the purposes of taxation. The result of that decision is that governing bodies of municipal corporations are not empowered, when ascertaining the amount of an indebtedness to be created, to determine for themselves the aggregate value of the property therein subject to taxation, but are to be governed by the official rolls made out by the tax assessor. ”
It will thus be seen that section 9, art. 8, of the constitution, as amended, does limit the creation of indebtedness by a county, and is not intended, as plaintiff contends, “wholly to limit the amount of the assessment.” See, also, Lake Co. v. Rollins, 130 U. S. 662, 9 Sup. Ct. Rep. 651. The amount of bonds that the defendant could lawfully issue [59]*59was such an amount as a tax of one-fourth of 1 per cent, annually would liquidate in 10 years. The 85 bonds issued to Milliken & Co. pursuant to the order of court of November 12, 1883, were delivered to them contemporaneously with their registration November 22, 1883, or soon thereafter, and at a time when the last official assessment — that of 1883, and the only one then made by the county — showed the amount of taxable property in the county to be $863,011.38. Adopting the rule prescribed by the supreme court in Russell v. Cage, supra, and reaffirmed in Nolan Co. v. State, supra, a tax of one-fourth of 1 per cent, upon this sum would pay in 10 years $14,982.77. To that extent the 35 bonds under consideration constituted an indebtedness which was within the power of the county to contract. The amount beyond $14,982.77, as measured by the constitution and laws of this state, was in excess of the defendant’s power to issue for the purpose of building a court-house.
4. The question arises: Are those bonds, numbered 2 to 35, inclusive, void, as to the excess, in the hands of innocent purchasers for value, as the holders are clearly shown by the testimony to be? If tested by the ruling of the supreme court of this state in the two cases last cited, the conclusion is irresistible that, as to the excessive issue, the bonds are void, — void in their inception, and void in the hands of any subsequent holder for value without notice. Thus it is said:
“As to the excess over that sum, they were void. * * * That the purchasers of the bonds of a city must look to the official assessment in order to ascertain the extent of the council’s authority to create a municipal indebtedness, and that as to an excessive issue they cannot claim to be innocent purchasers. ”
It is insisted by the plaintiff — as it was contended in Russell v. Cage, and Nolan Co. v. State—that the recitals in the bonds estopped the county from contesting their validity. The bonds involved in the present controversy contain the following recital:
“This bond is issued in accordance with the provisions of an act of the legislature of the state ol' Texas entitled ‘ An act to authorize the county commissioners’ court of the several counties of this state to issue bonds for the erection of a court-house, and to levy a tax to pay for the same,’ approved February Hth, 1881.”
The recital is that the bond was issued in accordance with the act of the legislature. It does not purport to be issued pursuant to, or in accordance with, the constitution; nor is there anything in the recital showing ihat the taxable value of the property in Howard county, as shown by the assessment rolls, was sufficient to authorize the commissioners’ court to issue the bonds which the county actually issued. Construing section 9, art. 8, of the constitution upon this point, the supreme court, in Rank v. City of Terrell, says:
“No ad valorem tax has ever been collected in this state otherwise than through carefully regulated assessments. It is not practicable, if it can besaid to be possible, to arrive at correct taxable values through any other means than an assessment. We would be compelled to ignore common sense and reject all experience before we could hold that when the constitution imposed upon-cities [and the same may be said of counties] the duty of ascertaining the vai-[60]*60uation of their taxable property it contemplated that they should look to any other'source for the information than their own assessment rolls, taken for the purpose alone of furnishing such information. We are unable to conclude that the constitution,- while intending to so strictly limit the creation of a debt to a percentage on valuation, contemplates that a city council may disregard official assessments, and adopt, according to their pleasure, any other means or no means of ascertaining the required fact. * * * It is firmly settled by the highest authority that, when the law that limits the debt by valuation directs that the valuation shall be ascertain-d by an assessment, such assessment governs and cannot be overcome by any mere recitals that the fact is otherwise.”
That the same principle is applicable to counties will be readily ascertained by reference to the Nolan Co. Case. Section 9, art. 8, of the constitution of this state, as amended, and also as the-section originally stood, in effect commands that a county shall, in order to create a debt for erecting a court-house, take its latest assessment of property for taxes, and from that ascertain, as heretofore shown, what amount of indebtedness it may lawfully contract. With this understanding of the constitutional provision, it will be readily seen that this case is not governed by the principles announced by the court in Marcy v. Oswego, 92 U. S. 637; Humboldt Tp. v. Long, Id. 642; and others cited by counsel for plaintiff. But it is thought to be clearly controlled bjr the cases of Lake Co. v. Graham, 130 U. S. 675, 9 Sup. Ct. Rep. 654; Dixon Co. v. Field, 111 U. S. 83, 4 Sup. Ct. Rep. 315; and Buchanan v. Litchfield, 102 U. S. 278. See, also, Sutliff v. Lake Co., 47 Fed. Rep. 106; Insurance Co. v. Lyon Co., 44 Fed. Rep. 329. In the Lake Co. Case, where the recitals were much more comprehensive than in this case, Mr. Justice Lamar, at pages 682, 683, 130 U. S., and pages 656, 657, 9 Sup. Ct. Rep., quotes from Dixon Co. v. Field the following language:
“If the fact necessary to the existence of the authority was by law to be ascertained, not officially by the officers charged' with the execution of the power, but by reference to some express and definite record of a public character, then the true meaning of the law would be that the authority to act at all depends upon the actual objective existence of the requisite fact, as shown by the record, and not upon its ascertainment and determination by any one; and the consequence would necessarily follow that all persons claiming under the exercise of such a power might be put to proof of the fact made a condition.of its lawfulness, notwithstanding any recitals in the instrument. The amount of the bonds issued was known. It is stated in the recital itself. It was .$87,000. Thei holder of each bond was apprised of that fact. The amount of the assessed value of the taxable property in the county is not stated; but, ex vi termini, it was ascertainable in one way only, and that was by reference to the assessment itself, — a public record equally accessible to all intending purchasers of bonds, as well as to the county officers. This being known, the ratio between the two amounts was fixed by an arithmetical calculation. 2sTo recital involving the amount of the assessed taxable valuation of the property to be taxed for the payment of the bonds can take the place of the assessment itself, for it is the amount as fixed by reference to that record that is made by the constitution the standard for measuring the limit of the municipal power. Nothing in the way of inquiry, ascertainment, or determination as to that fact is submitted to the county officers. They are bound, it is true, tc learn ifeom the assessment what the limit upon their authority is, as [61]*61a necessary preliminary in the exorcise of their functions and the performance of their duty; but the information is l'or themselves alone. All the world besides must have it from the same source, and for themselves. The fact, as it is recorded in the assessment itself, is extrinsic, and proves itself by inspection, and concludes all determinations that contradict it.”
Proceeding, the justice further says:
“The question here is distinguishable from that in the cases relied on by counsel for defendant in error. In this case the standard of validity is created by the constitution. In that standard two factors are to be considered, - — one the amount of assessed value, and the other the ratio between that assessed value and the debt proposed. These being exactions of the constitution itself, it is not within the power of the legislature to dispense with them, either directly or indirectly, by the creation of a ministerial commission whose finding shall be in lieu of the facts.” Pages (588, 684, 180 U. S., and page (557, ¡1 Sup. 01. Rep.
Howard county assessment mils of 1883 were public records, made in obedience to the constitution and laws of tlio stale. They were open to the inspection of the public, and they contained the amount of the taxable property of tbo county. Purchasers of the bonds were chargeable with notice of those records, and, had they been consulted, the discovery would have followed that a tax of one-fourth of 1 por cent., authorized by the constitution and the third section of the act of 1881, levied annually on property valued at $863,011 .88, would liquidate in 10 years an indebtedness of only $14,982.77. The bonds in excess of that amount are void, and collection of the excess cannot be enforced against the county, even by a bona fide purchaser for value.
5. It remains to consider the validity of bonds numbered 36 to 40, inclusive. These bonds, on their face, purport to be court-house bonds, and bear date November 12, 1883, the same date as the issue of 35 already discussed. Defendant objects to those bonds because (1) they were issued to bore an artesian well, and (2) the county exhausted its authority' to issue bonds when, by the order of commissioners’ court of November 12, 1883, it authorized the issuance and delivery of 35 bonds to Millikcn & Co. to erect a court-house; and hence the subsequent issue of 5 bonds was unlawful and void. If the county' bad authority to issue bonds 86 to 40, inclusive, at the time the order for their issuance was passed, the fact that they' were sold and the proceeds used to sink an artesian well would not invalidate them in the hands of an innocent purchaser. That point has been already decided against defendant touching the bonds, which it maintains wore issued to construct a jail, and requires no further thought. The second objection, however, is more serious. The commissioners’ court, November 12, 1883, ordered “that Hiere he issued for the purpose of erecting a suitable building for a court-house for said county of 1 Toward ⅜ * * thirty-five coupon bonds of the said county, of the denomination of one thousand dollars each, payable to J. II. Millikcn & Co. or bearer,” etc. No other bonds were then ordered to be issued, and Millikcn & Co. were not entitled to any others, or anything else, under their construction contract. An additional order of November 12, 1883, was passed, authorizing the levy [62]*62of a tax of one-fourth of 1 per cent, “to pay the interest and create a sinking fund for the redemption of said bonds necessary to erect a suitable building for a court-house,” as authorized by the act of 1881. It was not until February 14, 1884, the order was passed “that the balance of five thousand dollars court-bouse bonds may issue, in accordance with law, to any one who may agree to take same at their face or par value, and may be subject to the disposition of Geo. Hogg, county judge, or his successors in office.” August 19,1884, — about five months after the order authorizing the destruction and cancellation of the first and erroneous issue of 40 bonds, — an order was made by the commissioners’ court that bond 36 be “turned over to R. R. Elder, artesian well contractor, as collateral security,” etc. On March 1, 1886, it was ordered by the court “that A. D. Walker deposit said bonds Nos. 37, 38, 39, and 40 in Colorado National Bank, in accordance with terms of aforesaid contract,” — presumably a contract with James & Co. for boring an ártesian well. These four bonds were subsequently withdrawn from the bank, conformably to the order of August 11, 1886, and remained in the custody of the county treasurer until County Judge Thurmond negotiated them in St. Louis, pursuant to the order of September 13, 1886. Bonds numbered 37, 38, 39, and 40, together with bond 36, were purchased by a citizen of St. Louis, after March -12, 1884, for value, and with only such knowledge of their validity or invalidity as plaintiff had at the time of his purchase of bonds numbered from 1 to 30. The court is of opinion that these 5 bonds are absolutely void, on the ground that the county had no power or authority to issue them. The power to issue bonds for the erection of a court-house was exhausted when the 35 bonds were issued and delivered to Milliken & Co.; and thereafter the county was without lawful authority to issue additional bonds, apparently for court-house purposes, butreally and in fact intended and used for the purpose of boring an artesian well. Daviess Co. v. Dickinson, supra. Granted the power, under such circumstances, to issue bonds, purporting on their face to be court-house bonds, the authority would be susceptible of indefinite expansion; and under the pretense of lawful right a county would be enabled to flood the country with negotiable securities, binding upon the people. Such a doctrine is inconsistent with reason, and, it is believed, finds no support in the principles asserted by text-writers, or as enunciated by judicial tribunals. My conclusion, therefore, is that bonds numbered 36, 37, 38, 39, and 40 are void, and hence not enforceable.
6. It has been shown that bonds numbered 1 to 35, inclusive, are in part valid and partly void. The question now arises, is the county liable for the amount of indebtedness within the restricted limit? The supreme court of this state replies in the affirmative. Bank v. City of Terrell, supra; Daviess Co. v. Dickinson, supra; Insurance Co. v. Lyon Co., supra. The supreme court of Iowa holds the same view, and, in McPherson v. Foster, 43 Iowa, 72, 73, says:
“As we have seen, the constitutional inhibition operates upon the indebtedness, not upon the form of the debt. The district may become indebted to [63]*63the amount of §2,057.50 by bond. If the debt exceeds that amount, it is void as to the exeess, because of the inhibition upon the power of the district to exceed the limit; and the bonds as to the same excess are void because of the non-existence of a valid debt therefor. But this restriction does not extend to the sum of §2,057.50 for which the district had power to issue its bonds. That sum is a valid debt. The bonds, to that extent, are valid. It is no unusual thing for instruments of this character to be partly valid and partly invalid. So far as they secure a lawful debt, they are valid. So far as the debt is unlawful, they are invalid. * * * It appears that the bonds all bear the same date, and were issued, though at different times, as a part of one transaction. They were intended as security for a debt of $15,000, which was attempted to be contracted in building the school-house. It cannot be said that in justice invalidity should attach to certain particular bonds, while others, to the amount for which the district could lawfully contract indebtedness, should be held valid. Each bond, being but a part of the whole debt, must partake alike of invalidity and validity; it must be partly valid and partly invalid. The whole alleged debt is $15,000. Of this sum $2,057.50 is valid. Each bond will be valid to the extent it represents a portion of the debt lawfully contracted. Such a sum is the proportion of the amount of the bond as $2,057.50 bears to $15,000; that is, of the principal of each bond is valid and collectible. The interest on, each bond is determined by the same rule, or calculated upon the amount of each bond held to be valid.”
Howard comity could lawfully, issue, November 12, 1883, bonds to the amount of $14,982.77. It did in fact issue bonds, partly valid and partly invalid, aggregating $35,000. Bonds to the extent of its power to issue — $14,982.77-—became a valid indebtedness against the county, and enforceable by suit. Bonds in excess of that limit or amount are invalid and uncollectible. The 35 bonds were all issued and delivered at the same time to Milliken & Co., and they were subsequently bought at the same time by plaintiff and another citizen of St. Louis. None, therefore, have priority over the others, and the amount of valid debt should be equally distributed among them all. According to the rule laid down by the supreme court of Iowa, each one of the 35 bonds of $1,000 issued represents a valid indebtedness of $428, and each coupon of $80 a valid debt of $34.24. The suit embraces of these coupons, partly valid and partly invalid, 34 due April 10, 1888; 34 due April 10, 1889; 29 due April 10, 1890; and 29 due April 10, 1891. There is then due the plaintiff' on the coupons the following amounts:
[64]*64Judgment should be rendered for the foregoing amount, with 6 per cent, interest thereon from date, (Gén. Laws 1891, p. 87; Const. Amend, adopted Aug., 1891,) if, indeed, it be proper to enter judgment in favor of plaintiff for any amount in this suit at law. This question presents a serious difficulty. The supreme court of Iowa, in McPherson v. Foster, supra, and Judge Shiras, in Insurance Co. v. Lyon Co., supra, declined to enter judgment; the latter basing his refusal on the ground that the rights and equities of the bondholders could only be adjusted by a proper proceeding in equity, with all the parties before the court. Discussing the question, he observes:
“It is argued that the bonds would be valid until the amount needed to refund the enforceable debt had been reached, and that it will be presumed that the bonds were sold in the order of their number. Such a presumption cannot be indulged in under the facts of this ease. To settle the equities and rights of the bondholders against the county, and their rights as between themselves, would seem to require the institution of a suit in equity. In this action at law between one owner of part of the bonds and the county, it is beyond the power of the court to hear and determine the question of the order in which the series of bonds were sold, or the application of the proceeds realized from the sales thereof, and whether the facts are such that a certain number of the bunds can be held valid at law, or whether it should not be held that each owner of a bond is equitably entitled to demand his share of the total sum which may be adjudged to be collectible from the county.”
Touching this point, the supreme court of this state says:
“Neither the pleadings nor the proof in the record before us present the case so as to authorize a judgment of the nature indicated by us as being proper. Strictly speaking, no judgment other than the one from which the appeal was taken could have been rendered. We think it right, however, to give the appellee an opportunity amend his pleadings, and have the issues so presented as to show; what proportion of the debts sued on he may be entitled to recover, under the rules that we here announce.” Bank v. City of Terrell, supra.
See, also, Daviess Co. v. Dickinson, supra.
This court fully concurs in what is said in the cases cited. But the rulings in those cases were predicated upon the particular facts of each case. While in this suit the court entertains serious doubts as to the propriety of entering judgment in behalf of plaintiff, yet, after giving the question careful consideration, I am impressed with the conviction that such a judgment would be warranted by both the pleadings and proofs; and perceiving no insuperable objection, in a case of this kind, to the rendition of a judgment in a suit at law, my conclusion is that plaintiff should recover the amount found due, with legal interest and costs of suit. If he be not permitted to recover all he claims, he should at least have judgment for the amount to which he is lawfully entitled.
Ordered accordingly.