Territory of Arizona v. Vail

THE COURT. As the matter comes before us, there are no disputed questions of fact to be determined. The facts are that in 1883 the legislature of this territory passed an act making it the duty of the board of supervisors of Pima County to issue two hundred thousand dollars of county bonds, and to deliver the same to the Arizona Narrow Gauge Railroad Company. One hundred and fifty thousand dollars of these bonds were issued by the county, delivered to the company, and sold by it. In 1894 the supreme court of the United States, in the case of Lewis v. Pima County, 155 U. S. 54, 15 Sup. Ct. 22, 39 L. Ed. 67, held these bonds void, by reason of the fact that the act of the legislature was in excess of its powers as limited by acts of Congress. In that case Pima County presented not only the contention thus upheld by the court, but also the contention that these bonds were void for the additional reason that they were issued by the county under an act of the legislature directing, commanding, and compelling the issue thereof, irrespective of the will or interests of the county. The supreme court of the United States did not express an opinion on the latter point, because, as stated by them, it was not necessary to the determination reached. In 1896 Congress passed an act affirming, approving, and validating “all bonds and other evidences of indebtedness heretofore issued under the authority of the legislature” [142] of Arizona Territory, “as hereinbefore áuthorized to be funded.” In suits to which Pima County was not a party the supreme court of the United States held that this act applied to the bonds in question, and cured the defect under which they were held to be void in Lewis v. Pima County, supra. Utter v. Franklin, 172 U. S. 416, 19 Sup. Ct. 183, 43 L. Ed. 498; Murphy v. Utter, 186 U. S. 95, 22 Sup. Ct. 776, 46 L. Ed. 1070. The respondents maintain that the bonds in question are void by reason of the fact that the act of the legislature commanded the county to issue the bonds, and hence the writ should not issue, and that, as this question has not been determined by the supreme court of the United States, this court may properly pass upon it. Even if it be that the question is an open one, and the validity of these bonds has not been conclusively determined by the supreme court of the United States, still we think the contention of the respondents is not well taken. It is conceded that Congress could validate these bonds by subsequent legislation, if it had the power to pass the act in question in the first instance; but it is contended that Congress could not have .compelled the county to issue the bonds, and therefore cannot give life to bonds issued under compulsion of such an act as that passed by the territorial legislature. Without deciding the point, if it be conceded that neither under such an act of the legislature nor under a like act passed by Congress could the county have been compelled to issue or deliver these bonds, and that its officers could with impunity have successfully defeated the act by refusing compliance therewith, the fact is, nevertheless, that the county did avail itself of the act, and issued and delivered the bonds. In the absence of legislative authority, a municipality may not issue such bonds. It may issue them if so authorized. Assuming that the act of the legislature became in effect the act of Congress by virtue of the retroactive effect of the remedial act of Congress, it cannot successfully be maintained that the county acted without legislative authority, because iu its language the act was mandatory, and not merely permissive. So far as the act commanded the issuance of the bonds, it might not have been enforceable, had the county chosen to disregard it; but in this case the county did issue the bonds, and thus complied with the requirement, and we think the act of the [143] legislature constituted adequate permissive legislation to support the action of the county in issuing the bonds. Upon all the other points raised by counsel, by virtue of the decisions of the supreme court of the United States, the rule of stare decisis must apply. Let the writ issue as prayed for. KENT, C. J., SLOAN, J., DOAN, J., CAMPBELL, J., and NAVE, J., concur.