Summary
holding that a legislative enactment declared unconstitutional is rendered inoperative ab initio, “and bonds issued thereunder are void because issued without authority of law”
Summary of this case from Shands Teaching Hosp. & Clinics, Inc. v. Mercury Ins. Co. of Fla.Opinion
October 9, 1924. Rehearing Denied December 20, 1924.
Original proceeding in mandamus by the State, on the relation of John Nuveen, against W. B. Greer and others, members of and constituting the City Council of the City of Quincy, and others. Motion to quash alternative writ granted.
Wm. W. Flournoy, of De Funiah Springs, for relator.
J. Baxter Campbell and W. W. Wright, both of Quincy, and Myers Myers, of Tallahassee, for respondents.
In mandamus proceedings brought in this court it is sought to require designated municipal officers of the town of Quincy to levy a tax to pay interest on, and ultimately to pay the principal of $10,000 of bonds issued in 1909 by the town of Quincy under express statutory authority to issue such bonds "for the purpose of erecting school houses and maintaining a system of public education in said municipality." Section 22, c. 5844, Acts of 1907. See Validation Act, c. 6095, Acts of 1909.
On motion to quash the alternative writ it is in effect urged that it appears thereby that the bonds have been judicially held to be invalid and their payment enjoined, and that the allegations of the writ make it appear that the relator has no legal right to require, or the respondents no legal duty to perform, the official acts commanded by the writ.
The writ of mandamus does not supersede legal remedies, but rather, supplies the want of a legal remedy, therefore two prerequisites must exist to warrant a court in granting this extraordinary remedy. First, it must appear that the relator has a clear, legal right to the performance of the particular duty by the respondent; and, second, that the law affords no other adequate or specific remedy to secure the performance of the duty which it is sought to coerce. Myers v. State ex rel. Thompson, 81 Fla. 32,87 So. 80. See, also, State ex rel. Ellis v. Atlantic Coast Line R. Co., 53 Fla. 650, 44 So. 213. 13 L. R. A. (N.S.) 320, 12 Ann. Cas. 359.
The bonds in this case issued by the municipality were expressly and specifically authorized by statute. The Constitution (article 8, § 8) provided that "the Legislature shall have power to * * * prescribe their jurisdiction and powers" of municipalities. There was and is no express provision of the Constitution making the issue of the bonds unlawful. Their issue is not expressly forbidden by law, and the purpose of the issue is not immoral or contrary to law or public policy, but the purpose in authorizing and in issuing the bonds was to facilitate public education in the municipality. The money for the bonds was received and used by the municipality for the erection of a public school building in the municipality as expressly authorized by the statute. Interest on the bonds was paid for several years. Subsequently, the Supreme Court of the state at the suit of a taxpayer to enjoin the issue of bonds by another municipality under similar statutory powers, decided that, upon a consideration of all the pertinent provisions of the Constitution, a municipality as such could not be authorized by statute to issue bonds for public free school purposes in aid of the uniform system of public free schools required by the Constitution to be maintained by the state, counties, and school districts, particularly in view of the express organic provision that "any incorporated town or city may constitute a school district." Brown v. City of Lakeland, 61 Fla. 508, 54 So. 716. This was an implied organic limitation upon the express authority of the Legislature to "prescribe the jurisdiction and powers" of municipalities as such, which implied limitation was developed by judicial construction and interpretation after the bonds here involved had been issued and sold, and the proceeds used by the municipality for its benefit pursuant to express statutory authority. Thereafter, a taxpayer of the municipality relying upon the decision referred to, secured an injunction against further payments of interest on the bonds. See Munroe v. Reeves, 71 Fla. 612, 71 So. 922. Mandamus is now brought by the holder of the bonds in due course, seeking a tax levy by the municipal authorities for the payment of the interest and the redemption of the bonds.
Mandamus will not compel the tax levy and payment of the bonds or the interest thereon, for the reason that, the bonds being illegally issued, it is not the duty of the municipal officers to pay them. Such payment of the bonds has been enjoined. But the holder of the bonds can recover in an action at law, on appropriate common counts, the money paid for the bonds with interest according to law. See 19 R.C.L. p. 1032, note 11; 5 McQuillin on Munic. Corp. § 2349; 5 Dillon's Munic. Corp. (5th Ed.) § 961. See, also, Cullen v. Seaboard Air Line R. Co., 63 Fla. 122, 58 So. 182.
In County Commissioners of Columbia County v. King, 13 Fla. 451, mandamus was utilized because the issue of similar bonds had been held valid by the Supreme Court when the bonds sought to be enforced were issued. In that case, the bonds being valid, there was a legal duty to pay them and mandamus was applied. Here the bonds are invalid, and there is no duty to pay the bonds. But there would be a legal duty to pay a judgment duly obtained for the return of the money with appropriate interest, that was received and used by the municipality.
Issuance of the bonds was not expressly forbidden and penalized, and the municipality and the relator, bondholder, were not in pari delieto. Thomas v. City of Richmond, 12 Wall. 349, 20 L. Ed. 453. Neither party was at fault in the premises. The bonds were expressly authorized by statute and were issued as required by the statute. The proceeds were received by the municipality and used for its benefit. The implied limitation that was held by the court to make the issue of the bonds contrary to organic law was developed by judicial interpretation after the bonds had been sold, and the money had been used by the city for its purposes as expressly and specifically authorized by the statute. These circumstances clearly render the municipality liable for the amount of the money so received by it, with interest. See Brill v. Washington Railway Electric Co., 215 U. S. 52T, 30 S. Ct. 177, 54 L. Ed. 311; Louisiana v. Wood, 102 U. S. 294, 26 L. Ed. 153. See City of Henderson v. Redman, 185 Ky. 146, 214 S. W. 809, 7 A. L. R. 346, and notes.
In Morton v. City of Nevada (C.C.) 41 F. 582, cited in 5 McQuillin on Municipal Corporations, § 2349, there was an express organic prohibition that made the debt as contracted contrary to law and void, and the proceeds were used for the benefit of a private corporation contrary to law, and the action was barred by the statute of limitations. See Jarrolt v. City of Moberly, 103 U. S. 580, 26 L. Ed. 492.
The bonds having been issued contrary to law as judicially determined, it is not the legal duty of the municipal officers to levy taxes to pay the interest on or the principal of the bonds as such, or to pay the indebtedness according to the tenor of the bonds; and correlatively, the bonds being illegal, the relator has no legal right to have them paid by the process of mandamus. Payment of a judgment duly obtained for the money received by the municipality would be a legal duty of the municipal officers, which duty the relator could enforce by mandamus or other appropriate proceedings in due course of law.
In Pine Grove Township v. Talcott, 19 Wall. 666, 22 L. Ed. 227, the action was in assumpsit to recover "the amount of bonds" that had been held to be invalid by the state court, but which were in effect held to be valid by the United States Supreme Court.
In State v. Dickerman, 16 Mont. 278, 40 P. 698, mandamus was applied to enforce payment by a county treasurer of the amount of a warrant duly issued on a contract held to be valid. See, also, Savage v. Sternberg, 19 Wash. 679, 54 P. 611, 67 Am. St. Rep. 751.
Chapter 9057, Sp. Acts of 1921, appears to be designed to authorize the municipality, notwithstanding the lapse of time, to return with interest thereon the money received by the city for the bonds in question, though there appears to be a clerical error in the date of the bonds named in the act. The motion to quash the alternative writ is granted.
WEST and TERRELL, JJ., concur.
TAYLOR, C. J., and BROWNE, J., concur in the opinion.
ELLIS, J., concurs in the conclusion.
On Rehearing.
WHITFIELD, P. J.
The 30 days allowed by rule 25 of the Supreme Court Rules for filing applications for rehearing having expired, a motion is made herein by counsel for the relator for leave to file an accompanying petition for rehearing.
The suggestion is that certain contentions made upon authorities cited were overlooked by the court in rendering the opinion herein. All the contentions made were carefully considered.
In this case, the statutory provision under which the bonds were issued was held to be invalid because it provided for a bond issue by the city as a municipality "for the purpose of erecting school houses and maintaining a system of public education in said municipality," when the Constitution provides that "the Legislature shall provide for a uniform system of public free schools," with counties and school districts as the units for such "uniform system," and with a special provision that "any incorporated town or city may constitute a school district," as such organic provisions by implication exclude the giving of legislative authority to a city for the maintenance of a system of public education, even though the Constitution authorizes the Legislature to prescribe the powers of cities. The result is, that by virtue of the cited provisions of the Constitution, "the maintenance of a system of public education," meaning a system of public free schools, is not, under the present Florida Constitution, a permissible "municipal purpose" for which the Legislature may authorize a city as such to "assess and impose taxes" under section 5, art. 9, Constitution. Brown v. City of Lakeland, 61 Fla. 508, 54 So. 716; Munroe v. Reeves, 71 Fla. 612, 71 So. 922.
[3,4] Where, in adjudicating litigated rights under a statute, it appears beyond all reasonable doubt that the statute is in conflict with some express or implied provision of the Constitution, it is then within the power and duty of the court, in order to give effect to the controlling law, to adjudicate the existence of the conflict between the statute and the organic law, whereupon the Constitution, by its own superior force and authority, eliminates the statute or the portion thereof that conflicts with organic law, and renders it inoperative ab initio, so that the Constitution and not the statute will be applied by the court in determining the litigated rights. The courts alone are by the organic law empowered to authoritatively declare or to adjudge a statute to be in accord with or in conflict with the Constitution, so that the statute, if valid, stands, or, if contrary to organic law, will by the operation of the Constitution be rendered invalid from its enactment. 12 C.J. 800. The opinions of officials and of attorneys and others that a statute is valid may be persuasive in a judicial determination of the matter, but such opinions, and acts done pursuant to such opinions, do not affect the power and duty of the court to adjudge a statute to be in conflict with organic provisions, when in the judgment of the court there is such conflict; nor do such opinions and acts affect the operation of the dominant force of the Constitution in rendering the statute inoperative ab initio, to the extent that it conflicts with the superior law as judicially determined.
[6,6] If a legislative enactment conflicts with an existing provision of the Constitution, such enactment does not become a law. The intent of a Constitution may be shown by the implications as well as by the words of express provisions.
Where bonds are issued pursuant to a valid statute, mere irregularities in issuing the bonds may not affect their validity. County of Jefferson v. B. C. Lewis Sons, 20 Fla. 980. But when a statute violates the Constitution in authorizing bonds to be issued, the statute being inoperative as authority for their issue, the bonds are void (State ex rel. Bours v. L'Engle, 40 Fla. 892, 24 So. 539; Holland v. State, 15 Fla. 455); and the courts may enjoin their issue (Brown v. City of Lakeland, 61 Fla. 608, 54 So. 716), or their payment (Munroe v. Reeves, 71 Fla. 612, 71 So. 922).
Where a legislative enactment authorizing a municipality to issue bonds has never been adjudged to be constitutional, and it is judicially declared to be in conflict with organic law, the Constitution by its dominant force renders the enactment inoperative ab initio, and bonds issued thereunder are void because issued without authority of law.
[8, 9] Bonds sold to bona fide holders while the statute authorizing the bonds is duly adjudged to be constitutional, are valid, and the purchaser is protected from a subsequent decision of invalidity by the property rights clauses of the organic law, because the bonds being valid when issued are lawful obligations to pay money, therefore, property, and the Constitution secures to the purchaser the "inalienable right of acquiring, possessing, and protecting property," and requires the courts to afford a remedy by due course of law for any injury done to property rights. But where a statute is unconstitutional and has never been adjudged to be valid, bonds issued thereunder are void, and a purchaser acquires no lawful property rights therein as bonds that are secured by the Constitution. See 5 L. R. A. (N.S.) 860.
Where actions upon municipal bonds are brought in the federal courts, and the highest court of the state has held that the statute authorizing the bonds does or does not conflict with the Constitution of the state, the federal court will follow the state decisions, if they do not conflict with controlling federal law. But where the state decisions are in conflict or in confusion as to the validity of the statute under the state Constitution, or where the decisions of the state courts as to the validity of the statute are predicated upon federal law or upon the principles of general jurisprudence, or where the state court has overruled its prior decisions as to the validity of a statute, and great injustice results therefrom, the federal courts will exercise their own judgment in determining the validity of the statute under which the bonds in controversy were issued. See 12 C.J. 990; Mitchell v. Burlington, 4 Wall. 270, 18 L. Ed. 350. These rules of decision applied in the federal courts do not empower a state court to hold a statute, which has never been held to be constitutional, but is adjudged to conflict with organic law, to be valid as to past transactions, but invalid as to the future, so as to render valid bonds previously issued under the invalid statute to bona fide holders for value. The state courts have no such power under the Constitution, and it cannot be assumed. See Storrie v. Cortes, 90 Tex. 283, 38 S. W. 154, 35 L. R. A. 666.
The doctrine of estoppel is a part of the common law that is in force in this state, and it should be appropriately applied when the facts in a litigated case justify it. But the principle of estoppel does not operate to confer authority, though it may under some circumstances be invoked to preclude a denial that authority conferred was duly exercised. See 19 R.C.L. p. 1000.
While a municipality may be estopped to deny that the authority to issue bonds given by a valid statute was not properly exercised, in issuing bonds to bona fide holders for full value (County of Jefferson v. B. C. Lewis Sons, 20 Fla. 980), yet a municipality will not be estopped from denying the validity of a statute under which bonds were issued, even to bona fide holders. See L. R. A. 1915A, 916 notes.
A municipality can exercise only such powers as are conferred by law, and where a legislative enactment purports to confer upon a municipality authority to issue bonds, and such authority is in conflict with express or implied provisions of the Constitution. the enactment confers no authority, and bonds issued thereunder are void even in the hands of bona fide holders, and the municipality is not estopped to deny the validity of the bonds. 19 R.C.L. 1006.
[14, 15] It is conceded that if the statutory provision authorizing the bonds to be issued by the city conflicts with an express provision of the Constitution, or if it conflicts with a provision that is necessarily implied from express provisions, the bonds are void even though they were issued and sold to bona fide holders before the conflict between the statute and the Constitution was adjudicated, because it is admitted that all `persons are held to notice of all express and all necessarily implied provisions of the Constitution, But it is argued that the implied provision with which the statute in this case conflicts, does not necessarily result from express provision of the Constitution, but that it is merely a permissible implication developed by judicial interpretation, and the public was not held to notice of it before it was adjudged, since the implied provision was not discovered by eminent members of the legal profession who considered the statute valid, or by the legislative, executive, and administrative officers who regarded the statute as valid, and that in adjudicating a conflict between the statute and the judicially developed implied provision of the Constitution, the court should not let the effect of such conflict apply to past transactions by which bonds issued under the statute were sold to bona fide holders for value. This contention is not tenable (1) because what is implied in a Constitution is as much a part of it, and is as effective, as that which is expressed (State ex rel. Moodie v. Bryan, 50 Fla. 293, 39 So. 929; Mugge v. Warnell, 58 Fla. 318, 50 So. 645; State v. L'Engle, 40 Fla. 392, 24 So. 539; 12 C.J. 699, 719; United States v. Babbitt, 1 Black, 55, text 61, 17 L. Ed. 94; Savage v. Jones, 225 U. S. 501, text 533, 32 Sup. Ct. 715, 56 L. Ed. 1182; Page v. Allen, 58 Pa. 338, 98 Am. Dec. 272; Hopper v. Britt, 203 N. Y. 144, 96 N. E. 371, 37 L. R. A. (N.S.) 825, Ann. Cas. 1913B, 172, and grades or degrees of implication, if there be any, do not affect the operation of the Constitution to nullify statutes that are duly adjudged to be in conflict with the Constitution; (2) because the courts determine the validity of a statute, and, notwithstanding the opinions and actions of others, when an act of the Legislature is duly held to be invalid because in conflict with express or implied provisions of the Constitution, it is invalid from its enactment, and not from the date of the decision adjudging its invalidity; and, if the act is void, the bonds issued solely upon its authority are void, though the bonds were issued to bona fide holders prior to the date the statute was adjudged to be invalid; (3) because the statutory provision is a local law applicable to only one city, and under neither the Constitution of 1868, nor the present Constitution, have particular municipalities been authorized to "maintain a system of public education," but the organic law has required "a uniform system of public free schools" throughout the state, in which the municipalities as such do not participate; (4) because no statutory authority to a municipality to issue bonds of a similar character has been judicially held to be valid in this state, and a previous decision indicated the invalidity of the statute in this case (40 Fia. 392); (5) because the implication contained in the constitution forbidding statutes authorizing municipalities to maintain a system of public education or a system of public free schools, clearly appears beyond reasonable doubt or it would not have been deduced and applied by the court; and (6) because all persons are held to notice that all statutes are subject to all express and implied applicable provisions of the Constitution, and also that should a conflict between a statute and any express or implied provision of the Constitution be duly adjudged, the Constitution by its own superior force and authority would render the statute invalid from its enactment, and further, that the courts have no power to control the effect of the Constitution in nullifying a statute that is adjudged to be in conflict with any of the express or implied provisions of the Constitution.
The Constitution confers judicial power upon the courts to afford remedies "by due course of law" for injuries done to personal and property rights; and the courts have no authority to administer justice except "by due course of law"; therefore, when a statutory provision under which municipal bonds were issued is duly adjudged by the courts to be in conflict with the Constitution, upon which adjudication the Constitution by its own superior force and authority renders the statutory provision inoperative from its enactment, thereby establishing the invalidity of the bonds, "due course of law" does not authorize or permit the courts to adjudge that the statutory provision authorizing the bonds to be issued is not invalid as to past transactions when the Constitution itself renders the enactment void ab initio.
Rights acquired under a statute that has not been adjudicated to be constitutional are subject to a subsequent adjudication that the statute is unconstitutional, even though the statute had been generally considered valid. This is so because under the Constitution the courts alone have the power to authoritatively determine the validity of a statute. 12 C.J. 800. Validity or invalidity relate to the enactment of a statute under the existing organic law and not to a subsequent date. The courts have no power to make a statute inoperative only from the date of an adjudicated invalidity, because the courts merely adjudge that a statute conflicts with organic law, and the Constitution then operates to make the statute void from its enactment, the courts having no power to control the operation of the Constitution. It is not material whether the courts adjudge a statute to conflict with an express provision, or with a necessarily implied provision of the Constitution, or with a subtle and not readily perceived implied provision of the Constitution, since, if a conflict with organic law is adjudged, it is equally effective to let the Constitution nullify the statute, whether the conflict is with express or implied provisions, or whether the implied provision is patent or concealed. The Constitution recognizes no distinction in judicial processes between inescapable conclusions and other permissible conclusions in interpreting the controlling law. The adjudication suffices for the operation of the Constitution, and the ease or difficulty of the processes leading to the adjudication is wholly immaterial. People v. Albertson, 55 N. Y. 50; 6 R.C.L. p. 105; 25 R.C.L. 979.
Rights acquired under a statute while it is duly adjudged to be constitutional are valid legal rights that are protected by the Constitution, not by judicial decision. But rights acquired under a statute that has not been adjudged valid are subject to be lost if the statute is adjudged invalid, though the statute was considered valid by eminent attorneys, public officers, and others.
This is not a case where a statute has been judicially held to be valid, and, after rights have been acquired under it while it was held to be valid, the former opinion is overruled and the statute is held to be unconstitutional. In such a case the later decision renders the statute invalid from its passage; but not being a "law" the decision does not "impair the obligation of contracts," and where it does not give effect to a "law impairing the obligation of contracts" (Detroit United Ry. v. City of Detroit, 242 U. S. 238, 37 S. Ct. 87, 01 L. Ed. 268; National Mut. Building Loan Co. v. Brahnn, 193 U. S. 635, 24 S. Ct. 532, 48 L. Ed. 823), it does not violate the contract clause of the federal Constitution, nor the due process clause of the federal Constitution. Tidal Oil Co. v. Flanagan, 263 U. S. 444, 44 S. Ct. 197, 68 L. Ed. 382; 12 C.J. 990; 6 R.C.L. 332; Ross v. State of Oregon, 227 U. S. 150. 83 S. Ct. 220, 57 L. Ed. 458, Ann. Cas. 1914C, 224; Fleming v. Fleming, 204 U. S. 29, 44 S. Ct. 246, 68 L. Ed. 547. See, also, Milwaukee Electric Ry. Light Co. v. State of Wisconsin ex rel. City of Milwaukee, 252 U. S. 100, 40 S. Ct. 306, 64 L. Ed. 476, 10 A. L. R. 892, as to equal protection of the laws. Yet rights acquired under a statute while it was judicially held to be valid, were legally acquired, as the law was then authoritatively interpreted, and such rights may be protected by the organic provision securing the "inalienable right of acquiring, possessing and protecting property," which accords with the plainest principles of justice. See County Comissioners of Columbia County v. King, 13 Fla. 451, text 464; 12 C.J. 990; Thomas v. State ex rel. Gilbert, 76 Ohio St. 341, 81 N. E. 437, 10 L. R. A. (N.S.) 1112, 118 Am. St. Rep. 884; Falconer v. Simmons, 51 W. Va. 172, 41 S. E. 193. See, also, Christopher v. Mungen, 61 Fla. 513, 55 So. 273, where a later decision held a statute to be constitutional that had theretofore been held to be unconstitutional. Pierce v. Pierce, 46 Ind. 86; 12 C.J. 801. The organic provision is not that the state shall not impair the obligation of contracts, but that "no state shall pass any law impairing the obligation of contracts."
Nor is this a case where bonds were issued under a valid statute, and the municipality is, by recitals contained in the bonds (Gunnison County Com'rs v. E. H. Rollins Sons, 173 U. S. 255, 19 S. Ct. 390, 43 L. Ed. 689; City of Evansville v. Dennett, 161 U. S. 434, 16 S. Ct. 613, 40 L. Ed. 760, or in the record of the proceedings (County of Jefferson v. B. C. Lewis Sons, 20 Fla. 980) estopped to deny that its officers complied with the statute in issuing the bonds. See 15 C.J. 624; L. R. A. 1915A, 916, note. Here, the statute under which the bonds were issued has never been adjudged to be valid. Having been duly adjudicated to be invalid, it affords no authority whatever for issuing the bonds, and the city is not estopped to deny the validity of the bonds, even though they have been sold for full value to bona fide holders. In such case there is an entire absence of valid authority to issue the bonds, and the holder is bound to notice of the invalidity of the statute. Lewis v. City of Shreveport, 108 U. S. 282, 2 S. Ct. 634, 27 L. Ed. 728; City of Parkersburg v. Brown, 106 U. S. 487, 1 S. Ct. 442, 27 L. Ed. 238. See Township of East Oakland v. Skinner, 94-U. S. 255, 24 L. Ed. 125; Town of South Ottawa v. Perkins, 94 U. S. 260, 24 L. Ed. 154; McClure v. Township of Oxford, 94 U. S. 429, 24 L. Ed. 129; 19 R, C. L. p. 1006.
The decisions in the cases cited by counsel do not sustain his contention.
In Township of Pine Grove v. Talcott, 19 Wall. 666, 22 L. Ed. 227, the United States Supreme Court affirmed not the opinion, but the judgment of the United States Circuit Court in Fed. Cas. No. 13735, 1 Flip. 120, the Supreme Court holding that notwithstanding, a contrary holding by the state court (People v Salem, 20 Mich. 452, 4 Am. Rep. 400), the statute of. the state there involved, authorizing the issue of the bonds there in controversy, was not in conflict with the Constitution of the state, and that in the federal forum the statute and the bonds issued thereunder would be held to be valid under "principles of general jurisprudence." If the statute was ultimately held to be valid, it was valid ab initio. Christopher v. Mungen, 61 Fla. 513, 55 So. 273; 12 C.J. 801.
The holding in the Talcott Case is not that the implied provision or principle of organic law, with which the statute conflicted, as held by the state decisions, could not be readily perceived; but that the implication could not fairly be deducted from any express provision of the state Constitution, and that the decision of the state court was contrary to the principles of general jurisprudence as applied in the federal court and in other state courts. The decision of the federal court was not that the statute was valid merely as to past transactions, but that, nowithstanding the state decisions, the statute did not conflict with the state Constitution. Here the court reaffirmed the previously adjudged invalidity of the statute under which the bonds in this case were issued, and such holding is predicated, not upon principles that "belong to the domain of general jurisprudence," but upon an implication shown by cited sections of the state Constitution. See Brown v. City of Lakeland, 61 Fla. 508, 54 So. 716. At the time the bonds in this case were issued there had been no decision of the state or federal courts that bonds issued for a similar purpose under express statutory authority were valid, so as to invoke the rule applied in the federal courts. See Wilkes County v. Coler, 180 U. S. 506, 21 S. Ct. 458, 45 L. Ed. 642. See, also, L. R. A. 1915A, note, p. 981. See, also, Gelpcke v. City of Dubuque, 1 Wall. 175, 17 L. Ed. 520; Burgess v. Seligman, 107 U. S. 20, 2 S. Ct. 10, 27 L. Ed. 359; Tidal Oil Co. v. Flanagan, 263 U. S. 444, 44 S. Ct. 197, 68 L. Ed. 382, L. R. A. 1915A, 916, note. See 12 C.J. 990. Compare Gelpcke v. City of Dubuque, 1 Wall. 175, 17 L. Ed. 520, and Mississippi M. R. Co. v. McClure, 10 Wall. 511, 19 L. Ed. 997. See 58 L. R. A. 394; 23 L. R. A. (N.S.) 500; 5 L. R. A. (N.S.) 860.
In County Commissioners of Columbia County v. King, 18 Fla. 451, the statute involved had previously been held to be valid (Cotten v. County Commissioners of Leon County, 6 Fla. 610), and such holding was supported "by the almost unanimous concurrence of the courts of last resort in all the states of the Union," therefore the court declined "to enter into a discussion of the" validity of the statute (County Commissioners of Columbia County v. King, supra 462), and held that the bonds "having been issued under the sanction of the highest judicial authority of the state," even if the court were then to declare to be unconstitutional the act under which the bonds were issued, such decision "would not affect the bonds heretofore so issued, but would operate only upon the future." The bonds, having been issued to bona fide holders when the act was held valid by the highest court of the state, they were lawfully acquired, and were secured by the organic right to "protect property" lawfully acquired. Mandamus was awarded, the bonds being valid express obligations for stated amounts that needed no further ascertainment. In this case the statute under which the bonds were issued has never been adjudicated to be valid, and the bonds here in controversy were not issued under the sanction of any judicial authority; but the bonds have been heretofore, though subsequent to their issue and sale, declared to be invalid, because the act of the Legislature under-which they were issued violated the implications contained in stated provisions of the Constitution, and there was no valid authority for issuing the bonds. Munroe v. Reeves, 71 Fla. 012, 71 So. 922. Different parties are here asking relief, but the former adjudication of the invalidity of the statute is binding as a precedent. The statute being void, the bonds issued thereunder are void, and the payment of void bonds will not be enforced by mandamus. The federal and state organic prohibitions against "impairing the obligation of contracts" relate to legislative action and not to judicial decisions. 12 C.J. 990; Ross v. State of Oregon, 227 U. S. 150, 33 S. Ct. 220, 57 L. Ed. 458, Ann. Cas. 1914C, 224; Grand Trunk W. Ry. Co. v. City of South Bend, 227 U. S. 544, 33 S. Ct. 303, 57 L. Ed. 633, 44 L. R. A. (N.S.) 405; Canova v. State ex rel. Bradford Co. Com'rs., 18 Fia. 512; Tidal Oil Co. v. Flanagan, 263 U. S. 444, 44 S. Ct. 197, 68 L. Ed. 382.
In Gelpeke v. City of Dubuque, 1 Wall. 175, 17 L. Ed. 520, the Supreme Court of the United States held that when municipal bonds are issued under a state statute held to be valid, a subsequent decision of the state court that the statute is invalid will not be followed by the federal court in suits involving bonds issued previous to the holding by the state court that the statute is invalid. The rule there approved is:
"If the contract, when made, was valid by the laws of the state as then expounded by all departments of the government, and administered in its courts of justice, its validity and obligation cannot be impaired by any subsequent action of legislation, or decision of its courts altering the construction of the law." Olcott v. Supervisors of Fond du Lae County, 16 Wall. 678, 21 L. Ed. 882; Taylor v. City of Ypsilanti, 105 U. S. 60, 26 L. Ed. 1008.
The above quoted rule has been modified in so far as it relates to judicial decisions, since the organic provision as to impairing the obligation of contracts is directed at 1egislative, not judicial action. See 12 C, J. 990; Tidal Oil Co. v. Flanagan, 263 U. S. 444, 44 S. Ct. 197, 68 L. Ed. 382; Central Land Co. v. Laidley, 159 U. S. 103, 16 S. Ct. 80, 40 L. Ed. 91; Ross v. State of Oregon, 227 U. S. 150, 33 S. Ct. 220, 57 L. Ed. 468, Ann. Cas. 1914 C, 224.
In this case the statute was never held to be valid. It was never administered as law in the courts of the state, and it was held invalid when first challenged. The facts that the validity of the statute was assumed by the Legislature in enacting it, and by the municipal officers in issuing the bonds under the statute, and that eminent counsel considered the statute valid, do not affect the result that flows from a judicial adjudication that the statute is invalid. When the statute in this case was held to be invalid, It was void ab initio and bonds issued under it are void even though in the hands of bona fide holders for full value. The purchaser took the bonds subject to the contingency that the statute might be duly adjudicated to be invalid, its validity not having been already adjudicated, and if the statute be held invalid the bonds are necessarily void for want of authority to issue them, even though they are in the hands of bona fide purchasers for value, and no principle of estoppel by recitals in the bonds or otherwise can make the municipality liable in a suit brought on the bonds. 19 R.C.L. p. 1006, § 300, note 15.
In Von Hoffman v. City of Quincy, 4 Wall. 535, 18 L. Ed. 403, a subsequent statute attempted to impair contract rights secured under a previous valid statute. Mandamus was applied because "the validity of the bonds was not denied," and the tax levy was authorized by previous statutes.
In Board of Commissioners of the County of Knox v. Aspinwali, 21 How. 539, 16 L. Ed. 208, the question was not the validity of the statute, but whether the statute had been complied with by the administrative officers in issuing the bonds held by bona fide purchasers. See, also, Supervisors v. Schenck, 5 Wall. 772, 18 L. Ed. 556; City of San Antonio v. Mehaffy, 96 U. S. 312, 24 L. Ed. 816; County of Mercer v. Hackett, 1 Wall. 83, 17 L. Ed. 548; Town of Venice v. Murdock, 92 U. S. 494, 23 L. Ed. 583; City of Evansville V. Dennett, 161 U. S. 434, 16 S. Ct. 613, 40 L. Ed. 760.
The Legislature, in view of organic limitations upon the subject, being without power to authorize the bond issue, the act (chapter 6095, Acts 1909), purporting to validate the bonds is of course ineffectual. 12 0. J. 1091; 15 C.J. 627.
Motion denied.
WEST and TERRELL, JJ., concur.
TAYLOR, C. J., and BROWNE, J., concur in the opinion.
ELLIS, J., not participating.