The opinion of the court was delivered by: Gray, J.
W. H. Munger, Lewis A. Groff, and C. S. Montgomery, for plaintiff in error.
Wm. Marshall, for defendants in error.
This is a writ of error to reverse a judgment of the circuit court of the United States for the district of Nebraska, denying a peremptory writ of mandamus to command the county commissioners of the county of Dodge, in the state of Nebraska, to levy a special tax upon the taxable property within Fremont precinct, a local subdivision of that county, to pay and satisfy two judgments obtained by the petitioner against the county, in that court, upon interest coupons attached to bonds issued by the county commississioners in behalf of the precinct on September 1, 1871, under the statute of Nebraska of February 15, 1869, for the purpose of building a wagon bridge across the Platte river in that precinct, and purchased by the petitioner in good faith in the usual course of business, and without notice of any defects or infirmities; each of which judgments provided that they should be paid by such a levy.
To an alternative writ of mandamus, alleging the facts above stated, the county commissions filed an answer, alleging that the bonds, which were signed and sealed by the county commissioners, were in this form:
'UNITED STATES OF AMERICA, STATE OF NEBRASKA:
'It is hereby certified that Fremont precinct, in the county of Dodge, in the state of Nebraska, is indebted unto the bearer in the sum of one thousand dollars, payable on or before twenty years after date, with interest at the rate of ten per cent. per annum from date. Interest payable annually on the presentation of the proper coupons hereunto annexed. Principal payable at the office of the county treasurer, in Fremont, Dodge county, Nebraska; interest payable at the Ocean National Bank, in the city of New York.
'This bond is one of a series issued in pursuance of and in accordance with a vote of the electors of said Fremont precinct at a special election held on the eleventh day of November, A. D. 1870, at which time the following proposition was submited:
'Shall the county commissioners of Dodge county, Nebraska, issue their special bonds on Fremont precinct, in said county, to the amount not to exceed fifty thousand dollars, to be expended and appropriated by the county commissioners, or as much thereof as is necessary, in building a wagon bridge across the Platte river, in said precinct; said bonds to be made payable on or before twenty years after date, bearing interest at the rate of ten per cent, per annum, payable annually?' Which proposition was duly elected, adopted, and accepted by a majority of the electors of said precinct voting in favor of the proposition.
'And whereas the Smith Bridge Company, of Toledo, Ohio, have entered into a contract with said county commissioners to furnish the necessary materials, and to build and construct said bridge referred to in the foregoing proposition.
'Therefore this bond, with others, is issued in pursuance thereof, as well as under the provisions of an act of the legislature of the state of Nebraska, approved February 15, A. D. 1869, entitled 'An act to enable counties, cities, and precincts to borrow money on their bonds, or to issue bonds to aid in the construction or completion of works of internal improvement in this state, and to legalize bonds already issued for such purposes.'
'In witness whereof we, the said county commissioners of said Dodge county, have hereunto set our hands, this ___ day of _____, A. D. 1871.'
The answer further alleged that the proposition to vote the bonds, submitted to, and voted upon by, the voters of the precinct, contained a provision that the tax levied in any one year should not exceed one mill on a dollar of the valuation of the taxable property within the precinct, and was entered on the records of the county; and that a tax of one mill had since been annually levied. A general demurrer to the answer was overruled by the circuit court, and judgment entered accordingly; and thereupon this writ of error was sued out. The decision of this case depends upon the peculiar provisions of the statutes of Nebraska, and an examination of those statutes leaves us in no doubt how it should be decided. In the Revised Statutes of 1866, the ninth chapter, concerning county commissioners, contained the following provisions:
'Sec. 19. The said commissioners shall have power to submit to the people of the county, at any regular or special election, the question whether the county will borrow money to aid in the construction of public buildings, the question whether the county will aid or construct any road or bridge, or to submitted to the people of the county any question involving an extraordinary outlay of money by the county; and said commissioners may aid any enterprise designed for the benefit of the county as aforesaid, whenever a majority of the people thereof shall be in favor of the proposition, as provided in this section.
'Sec. 20. When county warrants are at a depreciated value, the said commissioners may, in like manner, submit the question whether a tax of a higher rate than that provided by law shall be levied; and in all cases when an additional tax is laid, in pursuance of a vote of the people of the county, for the special purpose of repaying borrowed money, or of constructing or ordaining to construct any road or bridge, or for aiding in any ...