ting property. It further authorizes them, "to provide for the payment of the costs and expenses of said improvement to be assessed upon the abutting property," to issue bonds and negotiate the same at not less than par, "as other bonds of said county are negotiated." It requires them to levy the assessments which shall be payable in installments to meet the bonds, and shall be a lien on the property, and to appropriate the same, when collected, solely to the payment of such bonds, and authorizes them, in case any bond or interest shall become due, and no money is in hand to pay the same, to make a temporary loan for the purpose, in which case the lien of the assessments shall continue for the benefit of the county. Held, that in the absence of any provision, either in the act, or in bonds issued thereunder, that such bonds should be payable only from the assessments when collected, they constituted obligations of the county, and that on default in their payment a holder was entitled to a judgment at law thereon against the county, without regard to the question of the means by which such judgment could be enforced.

2. FEDERAL COURTS-FOLLOWING STATE DECISIONS-LAW OF CONTRACT.

In a suit in a federal court on municipal bonds, the question of the validity of the legislative act under which they were issued is to be determined by the law of the state as judicially declared by its highest court at the time the bonds were issued; and where, under such law, the act was valid, the rights of a holder of the bonds cannot be affected by the fact that before the date of his purchase the court had overruled its prior decisions and declared it invalid.

8. MUNICIPAL BONDS-VALIDITY-PARTIAL INVALIDITY OF STATUTE.

The unconstitutionality of a method provided by law for making special assessments to pay bonds issued by a county to pay for road improvements, if conceded, does not affect the validity of the bonds as obligations of the county, or the right of a holder to recover judgment thereon.

In Error to the Circuit Court of the United States for the Southern District of Ohio.

first grade of the second class, to improve roads extending from such cities and other roads and streets in certain cases;' also by virtue of a resolution heretofore passed by the board of county commissioners of Franklin county, Ohio, on the 6th day of August, A. D. 1892; and it is to be paid for by an assessment upon the property abutting on North Fourth street (in Clinton township), from Chittenden avenue to the north line of Indianola Summit addition, for the purpose of improving and extending the same. In testimony whereof, we, the undersigned officers of Franklin county, Ohio, being duly authorized to execute this obligation on its behalf, have hereunto set our signatures, and caused the seal of said county to be hereunto affixed, this first day of January, A. D. 1894.

T. D. Cassidy, "S. B. Biggert, "J. B. McDonald, "Commissioners of Franklin County, Ohio.

"Henry J. Caren, County Auditor."

The prayer of the petition is for a judgment at law upon the bonds for the aggregate sum of $5,630, with interest and costs. A demurrer was filed to the petition upon the following grounds:

"(1) The act of the general assembly passed March 26, 1890, as amended March 7, 1892, under and by virtue of which the bonds and coupons described in the petition were issued, contravenes article 2, § 26, of the constitution of Ohio, and therefore said bonds and coupons thereto attached are invalid.

"(2) Said act of the general assembly passed March 26, 1890, as amended March 7, 1892, under and by virtue of which the bonds and coupons described in the petition were issued, contravenes the fourteenth amendment of the constitution of the United States, and therefore said bonds and the coupons thereto attached are invalid.

"(3) On all of said bonds sued upon the petition, and to each of which the coupons set out in said petition were attached, there is contained the following condition and recital: 'This bond is issued under and by virtue of section seven of an act of the general assembly of the state of Ohio passed March 26, A. D. 1890, entitled "An act 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 such cities and other roads and streets in certain cases;" also by virtue of a resolution heretofore passed by the board of county commissioners of Franklin county, Ohio, on the 6th day of August, A. D. 1892; and is to be paid for by an assessment upon the property abutting on North Fourth street (in Clinton township), from Chittenden avenue to the north line of Indianola Summit addition, for the purpose of improving and extending same.'"

Upon hearing, this demurrer was overruled. Afterwards the board of commissioners filed an answer in which they admitted that the bonds were issued under the authority of a certain act of the general assembly of Ohio, entitled "An act to authorize the 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" (87 Ohio Laws, p. 113); that the copies of the bonds as set out were true copies thereof; and that the bonds and coupons became due, and the plaintiff was the owner thereof, at the time the petition was filed. By way of special defenses, the commissioners set up further:

"Second Defense. That the total cost of the North Fourth street improvement, from Chittenden avenue to the north line of Indianola Summit addition, in Clinton township, to pay for which the bonds and interest coupons set out in the petition were sold, including the interest on the bonds to the next interest day when the assessments could be collected to pay for the same, amounted to $92,050.85, and that on the 3d day of December, 1895, the board of commissioners of Franklin county, Ohio, levied an assessment of eight dollars eighty-seven cents and eight and twelve-hundredths mills per front foot on all the property fronting and abutting on said improvement, and amounting in all to eighty-three thousand two hundred and seventy-six dollars and seventy cents ($83,276.70). That said assessment so levied was duly placed upon the tax duplicate of Franklin county, Ohio, against the property abutting and fronting on said improvement、on North Fourth street from Chittenden avenue to the north line of Indianola Summit addition in Clinton township. That the county treasurer of Franklin county, Ohio, has proceeded to and has collected said assessments as they became due, except the assessments levied against the property of the following named owners: Sallie H. Surguy, Sarah E. and D. R. Summy, the Summit Land Company, Wm. C. Frech, W. E. Smith, Phœbe Thompson, Wm. E. Peters, Henry Boska, A. C. Hartman, Estella M. Berry, Rebecca Ellis, Asa B. Dennison, John W. Thompson, E. W. Dow, Mulby Bros., Cath. C. Cottingham, Eliza Wildermuth, W. Guy Jones, Ira H. Miller, Hanna Goodman, Lynas B. Kauffman, Oscar E. Miles, Harry N. Hills, Fred N. Abbott, Gilbert G. Raynor, Oliva A. Spear, David E. Shrider, Henry Morton, Isaac E. Chaplear et al., Albert K. Neer, Mary A. Meyers, The. A. Simons, Geo. W. Clark, Kate Speilman, and A. E. Dennison, which said property owners have filed their petition in the court of common pleas of Franklin county, Ohio, and upon said petitions temporary restraining orders have been issued against the treasurer of Franklin county. Ohio, restraining him temporarily from collecting said assessments levied against said property or any of them; and said restraining orders are still in full force and effect, and have not been dissolved, and for that reason the assessments so levied upon the property of the persons hereinbefore mentioned have not been collected, and the same remain unpaid. That all moneys received from the assessments so levied upon the property abutting on North Fourth Street, in Clinton township, from Chittenden avenue to the north line of Indianola Summit addition, to pay for the improvement thereof, have been appropriated by the proper officers of Franklin county, Ohio, solely to the payment of the interest and redemption of said bonds so issued for said improvement. And said fund is now entirely exhausted, and there remains in the hands of the treasurer of said Franklin county, Ohio, no money which has been collected from said assessments upon the property abutting upon North Fourth street from Chittenden avenue to the north line of Indianola Summit addition, in Clinton township. In addition to the moneys so collected from said assessments, the sum of $7,100 has been applied to the payment of the bonds and interest coupons which were issued to pay for the cost of said North Fourth street improvement from Chittenden avenue to the north line of Indianola Summit addition in Clinton township. By reason of the restraining order so issued as aforesaid, the treasurer of Franklin county, Ohio, has been unable to collect said assessments as they became due. Said treasurer of Franklin county, Ohio, the auditor of Franklin county, Ohio, and the board of county commissioners of Franklin county, Ohio, have done each and every act which has been authorized by the statutes by the state of Ohio to levy and collect assessments provided for by the act of the general assembly which authorized the issuing of the bonds and interest coupons sued upon in the petition, and have failed to collect said assessments only by reason of the temporary restraining order restraining the treasurer of Franklin county, Ohio, from collecting the assessments hereinbefore set out. The board of county commissioners of Franklin county, Ohio, refused to pay the bonds and interest coupons set out in the petition for the reason that the constitution of the state of Ohio (article 10, § 5) provided, 'No money shall be drawn from any county or township treasury except by authority of law.' And the only authority which the defendant has for paying the bonds and interest coupons set out in the petition is the act of general assembly of the state of Ohio passed March 16, 1890, which authorized said board to pay said bonds and interest only from such assessments as shall be collected from the property abutting upon the improvement to pay for which said bonds are issued. No tax has been levied by the defendant, the board of county commissioners of Franklin county, Ohio, to pay the bonds and interest coupons set out in the petition, except said assessment hereinbefore set out, to wit, the assessments upon the property abutting upon North Fourth street, in Clinton township, from Chittenden avenue to the north line of Indianola Summit addition, as provided by sections 8 and 9 of said act of the general assembly of the state of Ohio, passed March 26, 1890, for the reason that the constitution of Ohio (article 12, § 5) provides that no tax shall be levied except in pursuance of law, and every law imposing a tax shall state distinctly the object of the same, to which only it shall be applied."

And for further defense:

"Third Defense. For a further and third defense to each and all of the alleged causes of action set out in the petition herein, the defendant avers that the said act of the general assembly of the state of Ohio passed March 26, 1890, as amended March 7, 1892, is and was in contravention of article 2, §26, of the constitution of the state of Ohio, and is therefore null and void. That previous to the 28th day of April, 1896, legislative acts similar to the said act of March 26, 1890, were upheld and declared valid by the various courts of the state of Ohio. That on said 28th day of April, 1896, the supreme court of Ohio, the same being the highest judicial tribunal therein, in the case of Hixson v. Burson, 54 Ohio St. 470, 43 N. E. 1000, decided and adjudged that an act of the legislature of Ohio providing for the repairs and improvements of certain public highways, and which said act was similar to the said act of March 26, 1890, in that its subject-matter was general, while its application and effect were local, was in conflict with section 26, art. 2, of the constitution of Ohio, and was therefore void. That ever since the date of the decision of the said case of Hixson v. Burson by said supreme court of Ohio, to wit, since April 28, 1896, said court has declared each enactment of the legislature of Ohio authorizing the repair or improvement of the public highway, and which by its operation could only affect one county in the state, to be unconstitutional and void, for the reason that all such legislation was in violation of section 26 of article 2 of the constitution of Ohio. That at the time the said act of March 26, 1890, and the said amendment thereto, was passed, the only county in the state of Ohio which contained a city of the first grade of the second class was said Franklin county. All of the facts stated in this defense were well known to the plaintiff at the time it purchased the bonds and coupons, and each thereof, set out in the petition. The defendant denies that the plaintiff purchased the bonds and coupons set out in the petition, or any or either thereof, on the day of, 1894, but alleges that neither thereof was purchased by the plaintiff, nor did it become the owner or holder thereof, until long after the said case of Hixson v. Burson was decided by the supreme court of Ohio, to wit, after the 28th day of April, 1896. The exact date when said purchase was made the defendant is not now able to state, for want of definite knowledge. Wherefore the defendant avers that the said supreme court of Ohio had, previous to the time when the plaintiff purchased and became the owner of any of the bonds or coupons set out in the petition, held, decided, and adjudged that all legislation in Ohio similar to the said act of March 26, 1890, was unconstitutional and void."

To this answer a demurrer was filed by the plaintiff, which was sustained by the court. No further pleadings being filed, a judgment was rendered for the plaintiff upon the bonds and coupons. A copy of the act under which the bonds were issued is here given, as follows:

"An act 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 such cities and other roads and streets in certain cases. "Section 1. Be it enacted by the general assembly of the state of Ohio, that in counties in which there are cities of the first grade of the second class, county commissioners shall have authority to cause any of the streets or avenues, or parts thereof of said cities which may have been paved with granite or other stone block, asphalt or other permanent material to the limit of said city, to be extended beyond the limits of said cities and improved by paving as aforesaid, or to cause any other road or street within said counties to be so improved upon the following conditions, to wit:

"Sec. 2. The property owners of lands fronting upon such road, street or streets being desirous of having said road, street or streets extended and so improved beyond the limits of said cities, or any other road, street or streets within such counties so improved, shall petition said commissioners to have said street or streets extended, widened and so improved, as called for in said petition; said petition shall state therein with what material said street shall be paved, provided with sidewalks, gutters and other passages for carrying off the water, and stating therein to what point on said road or

:

street said improvement is to be extended, or between what points on such other road or street such improvement is to be made. No petition for the improvement of any road or street under the provisions of this act shall be, favorably considered by said commissioners unless it is signed by the property owners representing a majority of the feet frontage of the lands abutting upon said road or street, between the city limits mentioned therein, and the point designated in said petition where said improvement shall stop, or the points upon such other road or street where said improvements shall begin and end, and the distance between such points shall be mentioned by the number of feet upon the line of said road or street.

"Sec. 3. Whenever the commissioners of such county shall receive such petition, they shall appoint a time and place for the hearing of said application, not less than four weeks thereafter, publish a notice of such hearing in some newspaper of general circulation in the vicinity of the proposed improvement, for not less than two consecutive weeks, one each week, and cause service of said notice to be given to all owners of property fronting upon the proposed improvement, their agents or attorneys, at least two weeks before said hearing.

"Sec. 4. All owners of lots or lands bounding or abutting upon the proposed improvement claiming damages therefor, shall file a claim in writing with said county commissioners, setting forth the amount of damages claimed, together with a description of the property owned for which the claim is made, within one week after the expiration of the time required for [the] publication of said notice, and all such as shall fail or neglect to file their claim for damages aforesaid, within the time aforesaid, shall be deemed to have waived the same and be forever barred from filing any claim or recovering any damages therefor.

"Sec. 5. Upon the day appointed for said hearing, if no claim for damages or for appropriations have been filed, or if whatever claims have been filed are allowed by the commissioners as hereinafter authorized, the hearing may proceed, and if, upon such hearing, the county commissioners shall be satisfied that the owners of a clear majority of the feet front of land abutting upon said proposed improved roadway favor said improvement, and that the proposed improvements are judicious, it shall be their duty to declare said improvement authorized and established, and to declare the width of said road legalized and established, as of the dimensions and manner as prayed for in said petition, and to make a permanent record of their said action. When said action is taken by the county commissioners they shall immediately notify the county surveyor of their action; said commissioners shall have the authority to allow claims as presented or as may have been acted upon. They shall also have authority to sit as arbitrators, and hear all claims arising out of such proposed improvements. They may subpœna witnesses and hear testimony, and upon final hearing shall find and determine the amount, if any, fairly due the claimant, or that claimant is entitled to no damages, and their finding shall be conclusive.

"Sec. 6. It shall be the duty of the county surveyor, upon receiving such notice from the county commissioners, that such a road has been widened, or other improvements authorized, to survey such road, erect stakes or monuments in front of each piece of property, marking the outside lines of such road so widened or extended, and do whatever other work [may be] necessary for said improvement, as ordered by said commissioners. It shall be the duty of said commissioners to assess all claims allowed by them for the establishment and widening of said street or streets upon the property fronting on such road so improved by the foot front. All other expenses for said improvement, except building bridges and culverts, which shall be paid out of the county bridge fund, shall be paid for and assessed upon the property abutting upon said street, not, however, to a greater depth than two hundred and fifty feet, in accordance with the various provisions of law now enacted or hereinafter enacted applicable thereto, and not inconsistent with this

act.

"Sec. 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