County of Sherman v. Simonds/Opinion of the Court

The plaintiff in error insists that the facts found by the court show an issue of bonds by the county in excess of the amount authorized by the statute, and that they are therefore void. The defendant in error is found by the circuit court to be a bona fide holder for value. According to repeated decisions of this court, being such, he was not bound to go behind the law and the recital of the bonds to inquire into the amount of the county indebtedness. Marcy v. Township of Oswego, 92 U.S. 637; Humboldt Tp. v. Long, Id. 642; Wilson v. Salamanca, 99 U.S. 499. But if it be conceded that a purchaser of the bonds was required to inspect the records of the county to ascertain the amount of its indebtedness, and whether there had its indebtedness, and whether there had been an over-issue of bonds, it appears from the findings of fact that the records of the commissioners contained an estimate of the indebtedness of the county made by them for the express purpose of fixing the amount of bonds to be issued, and in pursuance of which they were issued, which showed that there was no over-issue. This was a decision by the very officers whose duty it was under the law to fix the amount of bonds which could be lawfully issued. A purchaser of bonds was not required to make further inquiry, and if the finding of the commissioners was untrue, he could not be affected by its falsity. See cases above cited; also, Lynde v. The County, 16 Wall. 6; Com'rs v. January, 94 U.S. 202; County of Warren v. Marcy, 97 U.S. 96; Com'rs v. Bolles, 94 U.S. 104; Pana v. Bowler, 107 U.S. 529; [S.C.. 2 SUP. CT. REP. 704.]

The next contention of the plaintiffs in error is that the act by which the issue of the bonds in suit was authorized was forbidden by section 1, art. 8, of the constitution of Nebraska, which was in force at the date of the passage of the act. That section declares 'the legislature shall pass no special act conferring corporate powers.'

In the case of Com'rs Jefferson Co. v. People, 5 Neb. 127, decided at the July term, 1876, the supreme court of Nebraska has conclusively settled this point against the plaintiff in error. In that case an act of the legislature, in all material respects similar to the act in question in this case, except that it related to but one county, was brought under consideration. The answer averred that the act was unconstitutional and void. Upon this point the court said:

'That Jefferson county is justly indebted to the relator for     the amount of the warrants in question will not be      controverted; and when such is the case, there is no doubt of      the power of the legislature to require the county to issue      its bonds for the amount of its indebtedness.'

The question raised by this contention was also considered by this court in the case of Read v. Plattsmouth, 107 U.S. 574; [S.C.. 2 SUP. CT. REP. 208.] In that case an act of the legislature of Nebraska, approved February 18, 1873, was brought under review. The preamble of the act recited that the city council of the city of Plattsmouth had issued and sold certain bonds, and with the proceeds thereof had proceeded to let the contract for the erection of a school-house, and had appointed two persons, naming them, superintendents of the construction of the same, and that the work on said building had commenced. The first section then declared that all the acts and proceedings of the city council in relation to issuing said bonds and letting said contract and the appointment of said superintendents, and all matters and proceedings connected therewith which might in any way affect the validity of said bonds, should be, and the same were, thereby legalized, confirmed, and made valid in law. This act was attacked as in violation of the same section of the constitution which the plaintiff in error invokes in this case. It was contended that the act in question, by legalizing bonds of the city, was void because it had no power to issue them, was legally equivalent to an act conferring upon the city power to issue bonds, which was conferring corporate power, and being a special act, was therefore unconstitutional. But this court, speaking by Mr. Justice MATTHEWS, said:

'As the city of Plattsmouth was bound by force of the     transaction to repay to the purchaser of its void bonds the      it, or a legal equivalent, the statute it, or a legal      equivalent, the state which recognized the existence of that      obligation, and, by confirming the bonds themselves, provided      a medium for enforcing it according to the original intention      and promises, cannot be said to be a special act conferring      upon the city any new corporate powers. No addition is made     to its enumerated or implied corporate faculties; no new      obligation is, in fact, crea ed.'

And the court added that the very proposition there involved was maintained by the supreme court of Nebraska in the case of Com'rs Jefferson Co. v. People, supra. See, also, Railroad Co. v. County of Otoe, 16 Wall. 667; Foster v. Com'rs Wood Co. 9 Ohio St. 540.

In the cases of Clegg v. School-dist. 8 Neb. 178, and Dundy v. Richardson Co. Id. 508, [S.C.. 1 N. W. Rep. 565,] cited by plaintiff in error, it was held that an act authorizing a school-district or a city to contract a debt for the purpose of erecting a public building, and to issue bonds therefor, was forbidden by the constitution, because it was a special act conferring corporate powers. These cases are clearly distinguishable from those we have cited. In the latter, as in the case now under review, a debt already existed, and the statute simply authorized a change in the form of the obligation by WHICH THE DEBT WAS EVIDENCED. DISTINCTION IS CLEARLY STATED IN read v. Plattsmouth, ubi supra, the court remarking: 'The statute operates upon the transaction itself, which had already been consummated, and seeks to give it a character and effect different in its legal aspect from that which it had when it was in force;' and adds that such a result 'is not affected by the supposed form of the enactment as a special or general act conferring corporate powers.' The cases cited effectually dispose of the point under consideration.

Lastly, the plaintiff in error contends that the act under which the bonds in suit were issued is repugnant to section 15, art. 3, of the present constitution of Nebraska, which went into effect November 1, 1875, after the law authorizing the issue of the bonds was passed, but before the bonds were issued. The section referred to declares:

'The legislature shall not pass any local or special laws in     any of the following cases: *  *  * Granting to any      corporation, association, or individual, any exclusive      privileges, immunity, or franchise whatever. In all other     cases, where a general law can be made applicable, no special      law shall be enacted.'

It is a sufficient answer to the contention to say that the word 'corporation,' as used in this section of the constitution, does not apply to a county. If a county is a corporation at all, it is necessarily a municipal corporation. But the supreme court of Nebraska, in the case of Woods v. Colfax Co. 10 Neb. 552, [S.C.. 7 N. W. Rep. 269,] expressly held that in Nebraska a county was not considered to be a municipal corporation. And it is clear that the authority given by the act of February 18, 1875, to Sherman and other counties, to fund the indebtedness evidenced by county warrants, by giving their bonds in exchange therefor, does not of itself make them municipal corporations. But it is unnecessary further to discuss this branch of the case. The decision of the supreme court of Nebraska in Com'rs Jefferson Co. v. People, ubi supra, which, as before stated, was a case in all respects similar to this, and in which the constitutionality of a similar act of the legislature was put in issue, is precisely in point, and is conclusive of the question in hand.

We find no error in the record. The judgdment of the circuit court is therefore affirmed.