of error raise the question whether the county is liable to respond in damages in such case.

It is well settled that a city would be liable in such case. Grove v. City of Fort Wayne, 45 Ind. 429. This is not controverted by counsel for appellee, but it is contended that a county stands upon different ground in respect to liability. There is no statute that expressly gives the right of action in such case against either a city or county. The right against a city grows out of the power conferred upon it over its streets and bridges, and its duty to keep them in reasonable repair, having the power to raise means for that purpose. See the case above cited.

The question is one of first impression in this state, and must be tested by a consideration of the powers conferred and the duties imposed upon the board of commissioners by the laws of the state pertaining to the subject, with such aid as may be derived from the general principles and analogies of the law and the decisions of other courts upon like questions.

The board of commissioners of a county is a body corporate and politic, and as such may prosecute and defend suits, and have all other duties, rights and powers incident to corporations not inconsistent with the act providing for its organization. 1 R. S. 1876, p. 350, sec. 5.

The following, among other powers, are conferred upon the board:

2. To allow all accounts chargeable against such county, not otherwise provided for, and to direct the raising of such sums as may be necessary to defray all county expenses. 3. To audit the accounts of all officers having the care, management, collection or disbursement of any money belonging to the county, or appropriated for its benefit; and, 4. To perform all other duties which may be enjoined on them by any law of this state." 1 R. S. 1876, p. 352, sec. 13. Section 28 of the same act, page 356, provides that "when any judgment has been obtained against commissioners in their corporate capacity, the public property of the county shall be liable therefor; but the court rendering such judgment may, before the issuing of execution, allow such board reasonable time, if the same is necessary, to assess and collect a sufficient amount of revenue to pay and discharge such judgment, in addition to the ordinary expenses of the county." The amount to be charged on each poll and on each $100 worth of property for county expenditures is to be determined by the board of county commissioners at its annual meeting in June. 1 R. S. 1876, p. 72, sec. 1.

The first section of an act to provide for the erection and repair of bridges, etc. (1 R. S. 1876, p. 239), authorizes the board of commissioners to build and repair bridges over any watercourse; and the second section authorizes that body to “make any appropriation from the county treasury to build or repair the same;" and the eleventh section provides that the board of commissioners of such county shall cause all bridges therein to be kept in repair."

It is thus seen that the board of commissioners has ample power to build and repair bridges, and

to make appropriations from the county treasury for that purpose, and that it may determine the amount of taxes to be levied for county expenditures, which includes expenditures for the building or repair of bridges, where the same are built or repaired by the county; and that it is made the imperative duty of the board to cause all bridges in the county to be kept in repair. The board is a body politic and corporate, and as such may sue and be sued, and ample provision is made for the collection of judgments rendered against it.

The obligation thus imposed upon the board to cause all bridges in the county to be kept in repair, with ample power to provide means to discharge the obligation, carries with it a corresponding right in every one having occasion, in the usual course of travel, to use the bridges, to have the obligation tulfilled and the bridges kept in repair. And it seems to us to follow, that where the board negligently suffers such bridge to be out of repair, whereby a person in the ordinary use of it is injured, in person or property, without his own fault, he must have an action against the board for the damage; otherwise there will be a wrong without a remedy.

It will not do to say that the members of the board might be sued for the injury in their individual capacity, and, therefore, that the corporation could not be sued.

Without stopping to inquire whether the members of the board would or would not be liable as individuals, it seems to us that a party thus injured could not be required to look for redress only to them as individuals. They might be unable to respond in damages. The wrong in such case is not the wrong of the members of the board as individuals. As individuals they were under no obligation to keep the bridge in repair. The wrong done in suffering the bridge to become out of repair was the wrong of the corporation, and the corporation must be responsible therefor.

It is upon the principles above stated that cities are held liable for failing to keep their streets in repair, though no statute expressly provides for such liability, and in our opinion the principles will apply as well to a county as a city.

We are aware that there is a diversity in the decisions in respect to the liability of a county in such case; there being, we may say, numerous cases holding against such liability. Many of the cases were decidled upon statutes less decisive of the powers and duties of the board of commissioners than our own. Other cases discriminate between counties and cities, and, again, others hold that neither counties nor cities are liable for such neglect in the absence of a statute making them so. Other cases hold that a county is liable in such case without any statute expressly providing for such liability. In this diversity in the decisions we have felt at liberty to adopt and follow that line which seems to us to be most in accordance with the principles which should govern the question.

In the case of Wilson v. Jefferson County, 13 Iowa, 181, a county was held liable in such case. The court said, amongst other things: "The question recurs, to whom must the plaintiff look for

indemnity? We think, the county. We think so because the county is charged with the duty of building and maintaining bridges, and even repair, ing them when the requisite expenditure for so doing is large. This duty involves a corresponding obligation and liability to pay damages resulting from a neglect of the same. This rule is not only authorized and sanctioned by the analogies, but by the policy of the law which requires that the traveling public should have some security for a safe passage over the bridges and highways of the county." To the same effect are the cases of Brown v. Jefferson County, 16 Id. 339; Kendall v. Lucas County, 26 Id. 395, and Taylor v. Davis County, 40 Id. 295.

In the case of County Commissioners of Anne Arundel County v. Ducket, 20 Md. 468, a well considered case, it was held: "That the duties imposed by law upon the county commissioners being defined in the most comprehensive terms, and the law having supplied them with ample means and armed them with coercive power sufficient to meet and sustain their liability, they are responsible for special damage resulting from the non-repair of the public roads by their officers, the road supervisors." The case was followed in the case of County Commissioners of Calvert County v. Gibson, 36 Md. 229.

In the case of Wheeler v. Tray, 20 N. H. 77, it was held that "it is the duty of towns to keep in repair the highways within their limits, and for neglect of such duty they are liable at common law, and independent of the statute giving an action to the party injured." We understand that "towns" in that state are equivalent substantially to townships here. The court said in the case: "We are inclined, therefore, to the opinion that the general maxim of the common law, that he who is specially damaged by the breach of a duty on the part of another, shall have his remedy by action, is properly applicable to the case of one who has received an injury through the neglect of a town to repair its roads." In Dean v. New Milford Township, 5 Watts & Serg. 545, it was held that "an action on the case will lie against a township to recover damages for an injury sustained by reason of the neglect of the supervisors to keep the road in repair."

In the case of Erie City v. Schwingle, 22 Penn. 384, the following language is found in the opinion of the court, delivered by Black. C. J.: "The principal question in this case is, whether a city corporation, bound by its charter to keep its streets in repair, is liable for an injury occasioned by a neglect to do so. Every highway or thoroughfare which the public has a right to use must be kept by somebody in such order that it can be safely used; and if any serious injury happens to an individual in consequence of its bad condition, those who are bound to repair must answer in damages." After citing some authorities, the opinion proceeds: "I have cited these several cases to show that a party bound to repair, whether it be an individual, a private corporation, a township, district or city, must perform the duty or pay, in an action on the case, for all injuries to person and property

which may be caused by the omission." It is thus seen that the view we have taken of the question is well supported by authority.

The leading English case on which most of the American cases exempting counties from liability are based, is that of Russell v. Men of Devon, 2 Term R. 667. The action was upon the case against the men dwelling in the county of Devon, to recover satisfaction for an injury done to the wagon of the plaintiff in consequence of a bridge being out of repair, which ought to have been repaired by the county; to which two of the inhabitants, for themselves and the residue of the men dwelling in that county, appeared and demurred generally, and there was judgment for the defendants. Some, at least, of the reasons given for the judgment have no force here. Lord Kenyon, C. J., seemed to doubt whether the defendant was a corporation at all, against which a judgment could be rendered. He said, among other things: "But the question here is, whether this body of men, who are sued in the present action, are a corporation, or qua a corporation, against whom such an action can be maintained. If it be reasonable that they should be by law liable to such an action, recourse must be had to the legislature for that purpose.

I do not say that the inhabitants of a county or hundred may not be incorporated to some purposes; as if the king were to grant lands to them rendering rent, like the grant to the good men of the town of Islington. But where an action is brought against a corporation for damages, those damages are not to be recovered against the corporation in their individual capacity, but out of their corporate estate; but if the county is to be considered a corporation, there is no corporate fund out of which satisfaction is to be made."

Here, as we have already seen, ample provision is made for the satisfaction of judgments rendered against county commissioners in their corporate capacity. Ashurst, J., said, in the case above mentioned, among other things: "But there is another general principle of law which is more applicable to this case, that it is better that an individual should sustain an injury than that the public should suffer an inconvenience. Now, if this action could be sustained the public would suffer a great inconvenience, for if damages are recovered against the county, at all events, they must be levied on one or two individuals who have no means whatever of reimbursing themselves; for if they were to bring separate actions against each individual of the county for his proportion, it is better that the plaintiff should be without remedy." The inconvenience thus spoken of, which the public would suffer, has been entirely obviated by our statutes providing for the collection of judgments against counties. It is said in the case of Dean v. New Milford Township, supra, in speaking of Russell v. Men of Devon, and the reasons therein given above noticed that "the inference is by no means unreasonable that, had not these reasons existed the judgment would have been different."

It is not our purpose in this opinion to bring together the various cases bearing upon the question or to attempt in any manner to reconcile them.

We have cited some that well support the view we take of the question, and it would subserve no good purpose to cite or review those which hold a contrary doctrine. The case of Haag v. Board of Commissioners of Vanderburg County (at this term), may also be mentioned as remotely analogous to the case here. We may, however, before closing this opinion, notice the case of Commissioners of Hamilton County v. Mighils, 7 Ohio St. 109, which discriminates between a county and a municipal corporation, as a city, holding that the former would not be liable while the other might, under like circumstances. It is said in the opinion, "It is freely admitted that if counties are, in all material respects, like municipal corporations proper and may be fairly classed with them, this action ought to be maintained. But how is the fact? This question is vital, and on its solution the case must depend. As before remarked, municipal corporations proper are called into existence either at the direct solicitation or the free consent of the people who compose them; counties are local subdivisions of a state, created by the sovereign power of the state of its own sovereign will, without the particular solicitation, consent, or concurrent action of the people who inhabit them. The former organization is asked for, or at least assented to by the people it embraces; the latter is superimposed by a sovereign and paramount authority. A municipal corporation proper is created mainly by the interest, advantage and convenience of the locality and its people; a county organization is created almost exclusively with a view to the policy of the state at large for the purpose of political organization and civil administration in matters of finance, of education, of provision for the poor, of military organization, of the means of travel and transport, and especially for general administration of justice. With scarcely an exception all the powers and | functions of the county organization have a direct and exclusive reference to the general policy of the state, and are in fact but a branch of the general administration of that policy."

The above extract contains a graphic delineation of the difference between the method of the creation of a municipal corporation and that of the creation of a county, and between the objects, purposes and ends to be attained by the creation of each of those corporations. But does it state any satisfactory reason why the one should be liable to an action and the other not under like circumstances?

The ground of the action is the failure on the part of the corporation to perform a duty imposed upon it by law, whereby the party suing is injured.

It seems to us that the method of the creation of the corporation can not be decisive of the question of liability, one way or the other. A county is created by the sovereign power of the state. A city can not be created otherwise than by the sovereign power of the state. This sovereign power may be exercised, to be sure, in the passage of general laws under which cities may be voluntarily organized. But the liability of the corporation for the failure to perform a duty imposed by law can not be made to depend upon the question whether it was organ

ized by the act of Congress or of the people inhabiting the territory, in pursuance of law; or was superimposed by law without such consent. The people in each class of corporations elect their officers, for whose neglect of duty they may be liable through the medium of the corporate organization.

Then as to the objects and purposes of these organizations, it may be observed that the matter of keeping the streets of a city in repair is a matter of general state interest and policy, not affecting the people of the locality alone. No substantial difference is perceived between the duty of the county to keep the bridges therein in repair, and the duty of a city to keep its streets in repair, so far as the general public is concerned. They are both matters of public interest and controlled by the general policy of the state. Or, to state the proposition conversely, the matter of keeping the bridges of a county in repair is as local in its character as the matter of keeping the streets of a city in repair.

The court in the case in Ohio, which we have been noticing, found it necessary to overrule the case of Commissioners of Brown County v. Butt, 2 Ohio, 248. That case was as follows: Butt was the sheriff of the county and had a prisoner in his custody on a capias. The commissioners of the county had failed to provide a jail, which it was their duty to provide, whereby the prisoner escaped. The creditor sued the sheriff for the escape and recovered. Butt, the sheriff, then sued the commissioners for failing to provide a jail and recovered. The judgment was affirmed.

We are of opinion that the court below erred in arresting the judgment. The order below arresting the judgment is reversed with costs, and the cause remanded with instructions to the court below to render judgment on the verdict.

MUNICIPAL BONDS-LEVY OF TAX-CONSTITUTIONAL LAW-MANDAMUS.

UNITED STATES v. JEFFERSON COUNTY.

United States Circuit Court, Eastern District of Arkansas.

Before HON. H. C. CALDWELL, District Judge.

1. WHERE A STATUTE AUTHORIZES A COUNTY TO ISSUE ITS NEGOTIABLE BONDS, and makes it the duty of the county court "to levy a special tax of sufficient amount to pay the interest and principal of said bonds, as the same become due," the power of taxation, thus given, enters into and becomes a part of the obligation of the contract between the county and every holder of such bonds; and under the Constitution of the United States this obligation of the contract can not be impaired or lessened in any degree by the constitu tion or laws of the state afterwards enacted.

2. IN SUCH CASE IT IS THE DUTY OF THE COUNTY Court to levy, and cause to be collected, a tax sufficient in amount to pay the interest and principal of such bonds as the same mature, and if it does not perform its duty, it may be compelled to do so by mandamus.

On the 26th day of October, 1877, the relator recovered a judgment in this court against Jeff

erson County for $5,120.70, and costs, on negotiable bonds issued by said county in pursuance of the provisions of the act of the General Assembly of this state, entitled "An Act to authorize certain counties to fund their outstanding indebtedness," approved April 29, 1873. By the terms of this act the board of supervisors of the counties named therein was authorized" to issue the bonds of such counties in any sum necessary to pay the outstanding indebtedness of such counties," etc. The bonds were to be made payable in not less than three nor more than ten years, and to bear interest at the rate of eight per cent. per annum, payable semiannually. The 5th section of the act declares: "It shall be the duty of the board of supervisors issuing bonds under the provisions of this act, to levy a special tax of sufficient amount to pay the interest and principal of said bonds as the same become due. Such tax shall be collected in the lawful currency of the United States, and shall not be appropriated to any other purpose than that for which it was levied. If any board of supervisors neglect or refuse to levy the tax herein provided for, the holder of any such bond shall have the right to compel such levy by a writ of mandamus," etc.

The constitution of the State, adopted 30th October, 1874, abolished the board of supervisors, and devolved all their duties and jurisdiction on the county courts, and declared they should" be regarded as a continuation of the board of supervisors." § 23, of Schedule to Const. It also provided that, no county shall levy a tax to exceed one-half of one per cent. for all purposes, but may levy an additional one-half of one per cent. to pay indebtedness existing at the time of the ratification of this constitution." Art. 16, § 9.

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The act under which the bonds were issued was passed, and the bonds issued before the adoption of the present Constitution. The Constitution of 1868, in force at the date of the passage of this act, unlike the present Constitution, contained no limitation on the power of taxation for county purposes; any rate was lawful that was authorized by act of the legislature.

Upon the relation of the judgment-plaintiff, a rule issued directed to the county judge of the county requiring him to show cause-if any he could—at a time stated in the rule, why a peremptory mandamus should not issue out of this court requiring the county judge and justices of the peace of the county composing the county court for the levy and appropriation of taxes, to convene at the time and place fixed by law for the meeting of said court for the annual levy of the county and other taxes, and, when so convened, to proceed in conformity to the requirements of the fifth section of the act under which the bonds were issued, to levy a special tax on all the taxable property of the county, payable only in United States currency, sufficient to pay the relator's judgment. This rule was duly served on the county judge. No response to the rule has been filed, and the relator moves for judgment awarding the premptory writ. John McClure, attorney for relator. CALDWELL, J.:

It is a popular but erroneous opinion that the

restriction on the taxing power of counties, contained in the Constitution of 1874, repeals or annuls the provisions of the act of 1873, making it the duty of the county court to levy a special tax sufficient to pay the interest and principal of the bonds issued under this act, as the same becomes due. This erroneous view, in one instance heretofore, occasioned costs and inconvenience, and to prevent misconception on the subject in the future, it is deemed proper to state, with some fullness, the law applicable to this class of cases.

It has long been settled by repeated decisions of the Supreme Court of the United States and of many of the states, that the usual provision contained in acts authorizing counties to issue negotiable bonds, making it the duty of the proper county court, or board, to levy an annual tax sufficient to pay the principal and interest of such bonds as the same falls due, enters into and becomes a part of the obligation of the contract between the county and the holder of the bonds; and the power and duty of the proper county authorities to levy the tax required by the terms of the act authorizing the issue of the bonds, can not subsequently be withdrawn, so long as a single bond remains unpaid. When bonds are issued under such an act, the act itself becomes a part of the contract, as much so as if it had been written out at length on the face of the bond, and it can not be repealed or abrogated by any law of the state-neither by act of the legislature nor constitutional provision-until the obligations incurred under it are paid and discharged according to their terms.

The supreme court of the state has recently decided that the act under which these bonds were issued was legally passed under the constitution then in force; that it is a constitutional and valid law, and that a tax levied by the county court to pay the interest on the bonds was a valid and legal tax. Badgett v. Worthen, MS. Opinion, Nov. Term, 1877.

The constitution of the United States declares that "no state shall pass any ex post facto law, or law impairing the obligation of contracts." Art. 1, sec. 10, Const. U. S. And it further declares that "this constitution and the laws of the United States which shall be made in pursuance thereof *

shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding," and that "all executive and judicial officers, both of the United States and of the several states, shall be bound by oath, or affirmation, to support this constitution." Art. 6, Const. U. S.

In this state the public property of the county can not be sold on execution to pay the debts of the county, and the only mode of discharging such debts is by the levy of a tax on the taxable property of the citizens of the county. It is obvious that a bond of a county would be valueless unless there existed a legal right to require the levy of a tax to pay it; and, as to such contracts, this right is the principal, if not the only, element of their value, and constitutes the vital part of the obligation.

This right, to the full extent to which it was granted by law for this purpose, at the date of the issue of the bonds, is protected from invasion or impairment by the constitution of the United States.

In Von Hoffman v. City of Quincy, the precise question here involved was presented to the Supreme Court of the United States, and that court, in an opinion concurred in by every member of the court, said: "When the bonds in question were issued there were laws in force which authorized and required the collection of taxes, sufficient in amount to meet the interest, as it accrued from time to time, upon the entire debt. But for the act of the 14th of February, 1863, there would be no difficulty in enforcing them. The amount permitted to be collected by that act will be insufficient; and it is not certain that anything will be yielded applicable to that object. To the extent of the deficiency the obligation of the contract will be impaired, and if there be nothing applicable, it may be regarded as annulled. A right without a remedy is as if it were not. For every beneficial purpose it may be said not to exist. It is well settled that a state may disable itself by contract from exercising its taxing power in particular cases. It is equally clear that where a state has authorized a municipal corporation to contract and to exercise the power of local taxation to the extent necessary to meet its engagements, the power thus given can not be withdrawn until the contract is satisfied The state and the corporation, in such cases, are equally bound. The power given becomes a trust which the donor can not annul, and which the donee is bound to execute; and neither the state nor the corporation can any more impair the obligation of the contract in this way than in any other. The laws requiring taxes to the requisite amount to be collected, in force when the bonds were issued, are still in force for all the purposes of this case. The act of 1863 is, so far as it affects these bonds, a nullity. It is the duty of the city to impose and collect the taxes in all respects as if that act had not been passed. A different result would leave nothing of the contract but an abstract right-of no practical value-and render the protection of the constitution a shadow and a delusion." Von Hoffman v. City of Quincy, 4 Wall. 535.

And the doctrine laid down in the case last cited has been reaffirmed in numerous cases, In Riggs v. Johnson County, 6 Wall. 166, 194, Mr. Justice Clifford, delivering the opinion of the court, states the rule in these words: "Where a state has authorized a municipal corporation to contract and to exercise the local power of taxation to the extent necessary to meet the engagements, the power thus given can not be withdrawn until the contract is satisfied." And this is the settled doctrine of all the courts. City of Galena v. Army, 5 Wall. 705, 709; Rees v. City of Watertown, 19 Wall. 107, 120; Lansing v. County Treasurer, 1 Dillon, 522; 1 Dillon on Mun. Corp., sec. 41, and note; Burroughs on Taxation, p. 426, sec. 139; Hasbrouck v. Milwaukee, 25 Wis. 122; Western Savings Fund v. Philadelphia, 31 Penn. St. 175;

Bechwith v. English, 51 Ill. 147; Vance v. City of Little Rock, 30 Ark. 440, 441.

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It is no answer to say that the present constitution does not utterly destroy the right given by the act under which the bonds were issued-that a limited tax may still be levied. If, by any subsequent act of the state, the rate could be limited to five mills, it could be limited to one, or taken away altogether. "One of the tests that a contract has been impaired," say the Supreme Court of the United States, "is that its value has by legislation been diminished. It is not by the constitution to be impaired at all. This is not a question of degree or manner or cause, but of encroaching in any respect on its obligations-dispensing with any part of its force. And the test, as before suggested, is not the extent of the violation of the contract, but the fact that in truth its obligation is lessened in however small a particular." Planters Bank v. Sharp, 6 How. 327. And the same court, in a recent case, held a provision of the constitution of the State of North Carolina, exempting property from sale on execution, void as to debts contracted before its adoption, and the court, in this case, state the rule to be that "the remedy subsisting in a state when and where a contract is made and is to be performed, is a part of its obligation, and any subsequent law of the state which so affects that remedy as to substantially impair and lessen the value of the contract, is forbidden by the constitution, and is, therefore, void." Edwards v. Kearzy, 6 Cent. L. J. 391.

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Nor does it affect the question that the law of the state impairing the obligation of a previous valid contract is made part of the constitution of the state, not even though Congress has authorized and ratified said constitution. On this point the Supreme Court of the United States say: gress can not, by authorization or ratification, give the slightest effect to a state law or constitution in conflict with the Constitution of the United States. That instrument is above and beyond the power of Congress and the states, and is alike obligator upon both. A state can no more impair an existing contract by a constitutional provision, than by a legislative act; both are within the prohibition of the National Constitution." Gunn v. Barry, 15 Wall. 610, 623; Jefferson Bank v. Skelley, 1 Black, 436; Dodge v. Woolsey, 18 How. 331.

The Supreme Court of Virginia, in a recent case, held the provision of the onstitution of that state, allowing property to the value of $2,000 to be held exempt from execution for the debts contracted before its adoption, was in conflict with the Constitu tion of the United States and void, as respects application to such debts. The court said: "The fact that an enactment tending to impair contracts is embodied in the constitution of a state, does not protect it. The prohibition of the United States Constitution is upon the states, irrespective of the form its laws may take or the agencies which enact them. A state has no more power to impair the obligation of a contract, by a constitution, than by a legislative act; " and the unanimous opinion of the court concludes in language as marked for the force with which it inculcates the moral and