119 F. 36 | 6th Cir. | 1902
after making the foregoing statement of facts, delivered the opinion of the court.
In this case counsel have elaborately argued questions as to the authority of the commissioners of Franklin county to levy a general tax for the payment of the bonds sued upon; it being insisted on behalf of the bondholders that, notwithstanding a method of assess
“To authorize county commissioners in counties in which there are situated ■cities of the first grade of the second class to improve roads extending from said cities and other roads and streets in certain cases.”
While the making of the roadway is to be upon the petition of the abutting land'owners, the road is only established when the commissioners deem the same to be a judicious improvement. The commissioners are charged with the duty of seeing to it that, with the proposed improvement, the foot frontage of the abutting lands shall be worth double the estimated expenses of such improvement. The commissioners are to let the contract for the work. These provisions indicate the general purpose to make a county improvement, to be •contracted for by the representatives of the county. The improvement was to be paid for by the sale of bonds to raise money for that ■purpose, and we find it provided in section 7:
“In order to provide for the payment of the costs and expenses of said improvement to be assessed upon the abutting property, the commissioners may, from time to time, as such improvement progresses, issue the bonds for' such improvement in such sums as will be required in all to an amount not exceeding the contract price of the work and the expenses attending the same •and interest.”
The following section (8) provides that the bonds shall be negotiated at not less than par, as other bonds of said county are negotiated, and the proceeds applied solely to pay for said improvement.
“It is a settled doctrine in this court that the question arising in a suit in a federal court of the power of a municipal corporation to make negotiable securities is to be determined by the law as judically declared by the highest court of the state when the securities were issued, and that the rights and obligations of parties accruing under such a state of law would not be affected by a different course of judicial decisions subsequently rendered, any more than by subsequent legislation. Loeb v. Trustees, 179 U. S. 472, 21 Sup. Ct. 174, 45 L. Ed. 280, and authorities there cited.”
Up to the time of the issue of these bonds, acts similar to the one under consideration had been upheld by the supreme court of Ohio. The fact that the plaintiffs below purchased the bonds after the decision in Hixson v. Burson cannot affect its title as a bona fide holder if the bonds were issued under a law held to be valid .at the time of the issue. Gunnison Co. v. E. H. Rollins & Sons, 173 U. S. 255, 19 Sup. Ct. 390, 43 L. Ed. 689.
It is further contended that the bonds are of no validity, as they are issued in violation of the guaranties of the constitution of the United States against taking private property without compensation, and depriving any person of property without due process of law. This argument is aimed against the feature of the law which undertakes to provide for assessments upon the property abutting upon the improvement. A similar question was before the supreme court in Loeb v. Trustees, 179 U. S. 488, 21 Sup. Ct. 174, 45 L. Ed. 280. In that case it was held that, even if the assessment was invalid because of the constitutional objection raised, the law could stand as valid, authorizing the making of obligations of binding force upon the township. Finding in this law authority to issue the bonds for purposes held to be lawful at the time the authority was granted, and the bonds having been issued accordingly, they became the obligations-of the county, irrespective of the question—not herein involved —of the validity of any attempted assessments to pay the bonds. As was said by Mr. Justice Harlan in Loeb v. Trustees, supra:
*48 “The relief asked and the only relief that could be granted in the present ¡action is a judgment for money. If the township should refuse to satisfy •a judgment rendered against it, and if appropriate proceedings are then in-, stituted to compel it to make an assessment to raise money sufficient to pay the bonds, the question will then arise whether the mode prescribed by the third section of the act of 1893 can be legally pursued, and, if not, whether the laws of the state do not authorize the adoption of some other mode by which the defendant can be compelled to meet the obligations it assumed under the authority of the legislature of the state. All that we can now •decide is that, even if the third section of the statute in question be stricken ■out as invalid, the petition makes a case entitling the plaintiff to a judgment against the township. Whether a judgment, if rendered, could be collected, without further legislation, depends upon considerations that need not now be examined.”
What we hold is that the bonds in suit constitute a valid obligation of the county, upon which a judgment may be rendered in favor of the holder. Whether the same can be compelled to be paid through the assessments provided for in the act, or whether there exists legislation under which the commissioners can be required to levy a general tax for the payment of such judgment, are questions not made in this record, and upon which we express no opinion.