Opinion of the Court.

ings it assailed would not change the appeal from this, into an appeal from the prior decree.

In order to hold this appeal maintainable as within the second of the above-named classes, (the fourth class in the enumeration of the statute,) the construction or application of the Constitution of the United States must be involved as controlling, although on appeal or error all other questions would be open to determination, if inquiry were not rendered unnecessary by the ruling on that arising under the Constitution. Horner v. United States, 143 U. S. 570.

The bill before us refers to no provision of the Constitution upon which complainants relied to invoke the action of the court in vindication of their supposed rights, or which was presented to be construed or applied by the court. No question upon such construction or application was raised between the parties upon the record, or determined by the decree of the Circuit Court.

It is argued that the record shows that complainants had been deprived of their property without due process of law, by means of the decree attacked, but because the bill alleged irregularities, errors, and jurisdictional defects in the foreclosure proceedings, and fraud in respect thereof and in the subsequent transactions, which might have enabled the railroad company upon a direct appeal to have avoided the decree of sale, or which, if sustained on this bill, might have justified the Circuit Court in setting aside that decree, it does not follow that the construction or application of the Constitution of the United States was involved in the case in the sense of the statute. In passing upon the validity of that decree the Circuit Court decided no question of the construction or the application of the Constitution, and, as we have said, no such question was raised for its consideration. Our conclusion is that the motion to dismiss the appeal must be sustained.

Appeal dismissed.

Citation for Appellee.

HEDGES v. DIXON COUNTY.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF NEBRASKA.

No. 62. Submitted November 2, 1893. - Decided November 13, 1893.

Holders of municipal bonds, issued by a county in excess of its authority, cannot, by an offer to surrender and cancel so much of such bonds as may, upon inquiry, be found to exceed the limit authorized by law, invest a court of equity with jurisdiction to ascertain the amount of such excess, and to declare the residue of such bonds valid and enforce the payment thereof against the county.

Where a contract is void at law for want of power to make it, a court of equity has no jurisdiction to enforce it, or, in the absence of fraud, accident, or mistake to so modify it as to make it legal, and then enforce it.

IN EQUITY. Decree dismissing the bill. Complainant appealed. The case is stated in the opinion.

Mr. J. M. Woolworth and Mr. C. L. Wright, for appellants, cited: New Orleans v. Clark, 95 U. S. 644; Pine Grove v. Tascott, 19 Wall. 666; Queensbury v. Culver, 19 Wall. 83; Marsh v. Fulton County, 10 Wall. 676; Louisiana v. Wood, 102 U. S. 294; Read v. Plattsmouth, 107 U. S. 568; Jefferson County v. People, 5 Nebraska, 127; Clark v. Saline County, 9 Nebraska, 516; Turner v. Woodson County, 27 Kansas, 314; Johnson v. Stark County, 24 Illinois, 75; Quincy v. Warfield, 25 Illinois, 317; S. C. 79 Am. Dec. 330; Briscoe v. Allison, 43 Illinois, 291; State v. Allen, 43 Illinois, 456; Allen v. Peoria &c. Railroad, 44 Illinois, 85; Mix v. People, 72 Illinois, 241; Stockdale v. Wayland, 47 Michigan, 226; Etna Ins. Co. v. Lyon County, 44 Fed. Rep. 329; Francis v. Howard County, 50 Fed. Rep. 44; Daviess County v. Dickinson, 117 U. S. 657.

Mr. John M. Thurston, for appellee, cited Dixon County v. Field, 111 U. S. 83.

Opinion of the Court.

MR. JUSTICE JACKSON delivered the opinion of the court.

The question presented by the record in this case is whether parties holding the greater part of a series of bonds issued by a county in excess of the limit fixed by the constitution of the State, and which for that reason are not enforceable at law, can invoke the aid of a court of equity to afford them relief by first ascertaining the extent of such excess, or settling the amount of bonds which the county could lawfully have issued, and then proceeding to scale down the issue to the limit thus ascertained, and to declare such excess only to be void, and thereupon decree the residue of such bonds good and valid, and enforce payment of such residue, with interest, against the county; or, in other words, can the holders of bonds issued by a county in excess of its authority, by an offer to surrender and cancel so much of such bonds as may upon inquiry be found to exceed the limit authorized by law, invest a court of equity with jurisdiction, not only to ascertain the amount of such excess, but to declare the residue of such bonds valid and enforce the payment thereof against the county?

The appellants, being the holders of nearly the entire issue of $87,000 in bonds of the county of Dixon, which were by that county issued and donated to the Covington, Columbus and Black Hills Railroad Company, January 1, 1876, filed their bill in May, 1888, in the Circuit Court of the United States for the District of Nebraska, setting forth, among other things, that by a vote of the electors of the county, held on December 27, 1875, the bonds in question were authorized to be issued to the railroad company; that they became the holders thereof, relying upon recitals contained therein, and the certificates endorsed thereon, and believing them to be binding and valid obligations of the county; that, when the interest coupons matured, payment was refused by the county officials, who alleged that the bonds were invalid, because they exceeded in amount ten per cent of the assessed valuation of the property of the county at the time of their issuance. The bill further alleges that complainants had offered to surrender for cancellation such amounts of the bonds as exceeded ten

up

Opinion of the Court.

per cent of the assessed valuation of the property of the county, each holder surrendering his proportionate share of such excess; that this offer was refused by the county, which complainants insist cured any infirmity in the bonds, and that the county was equitably bound to recognize as valid the residue thereof, because it and its citizens had received in the construction of the railroad, which the bonds were issued to promote, all the consideration that was intended to be secured thereby. The prayer of the bill was that an account might be taken to ascertain the excess of the issue over ten per cent of the assessed valuation of the property of the county; that such excess might be distributed among the holders of the bonds, or be applied to reduce the amount of each bond ratably, so as to bring the entire issue within the limit authorized by law; that the residue might be declared good and valid, and that the county might be decreed to pay the same, with interest, at the rate of ten per cent from January 1, 1876, to the date of the decree.

The county demurred to the bill, on the ground that the complainants had not, in and by their bill, stated such a case as to entitle them to the relief sought. This demurrer was sustained by the court, and the defects being of such a character that they could not be remedied by amendment, a decree was entered dismissing the bill. 37 Fed. Rep. 304. From that decree the present appeal is prosecuted.

The bonds in question were made payable to the Covington, Columbus and Black Hills Railroad Company, or bearer, and were put in circulation by that company with its indorsement thereon guaranteeing to the holders the payment of the principal and interest of the bonds, according to the tenor thereof, at the place where, and as the same became due and payable. The only consideration received by the county in the transaction was the incidental benefit derived from the construction of the railroad the proceeds of the bonds, when negotiated, being received directly by the railroad company. The theory of the bill is that the bonds are void only to the extent that they exceed ten per cent of the assessed valuation of the Property of the county at the time of their issuance, and upon

Opinion of the Court.

the abatement of that excess the holders are entitled to have the residue thereof which the county could have lawfully issued treated as valid, because of the incidental benefits derived from the construction of the road which was sought to be secured by the donation of bonds.

The complainants by their bill, and exhibits thereto, have presented the same state of facts which were considered in Dixon County v. Field, 111 U. S. 83, where the bonds in question were directly involved, and were held by this court to be void because they exceeded in the aggregate the sum of ten per cent of the assessed valuation of the property of the county at the time of their issue. This decision was based upon section 2, Art. XII. of the constitution of the State of Nebraska, which provides as follows:

"No city, county, town, precinct, municipality, or other subdivision of the State, shall ever make donations to any railroad or other work of internal improvement, unless a proposition so to do shall have been first submitted to the qualified electors thereof, at an election by authority of law: Provided, That such donations of a county, with the donations of such subdivisions, in the aggregate, shall not exceed ten per cent of the assessed valuation of such county."

While the complainants concede that the issue of bonds was in excess of what the county was authorized to donate under this provision of the constitution, and for that reason were invalid at law, they insist that a promise to pay so much thereof as could have been lawfully issued should be implied and enforced against the county, under the principle applied in Louisiana v. Wood, 102 U. S. 294, and in Read v. Plattsmouth, 107 U. S. 568. Those cases are clearly distinguishable from the present. In Louisiana v. Wood, by the act of the city, the bonds bore a false date which apparently made them obligatory and binding; they were sold by the city and purchased by the holder in good faith, and the money paid therefor went directly into the city's treasury. This court held that the city was in the market as a borrower and received the money in that character, notwithstanding the transaction assumed the form of a sale of her securities, which being