under which certain bonds were issued by Lake county, Colo., which bonds were under consideration in Lake Co. v. Graham, 130 U. S. 674, 9 Sup. Ct. Rep. 654. The bonds in that case were quite similar to those now under consideration, differing only, as regards their recitals, in this: that the bonds here contain the additional recital that "the total amount of this issue does not exceed the limit prescribed by the constitution of the state of Colorado," and do not show upon their face,

assessed to them in said county in the preceding year, to submit to the vote of the qualified electors of such county who shall have paid taxes on property assessed to them in said county in the preceding year the question whether the board of county commissioners shall issue bonds of such county, under the provisions of this act, in exchange, at par, for the warrants of such county issued prior to the date of the first public tion of the aforesaid notice; or they may submit such question at a special election, which they are hereby empowered to call for that purpose, at any time after the expiration of thirty days from the date of the first publication of the notice aforementioned, on the petition of fifty qualified electors as aforesaid; and they shall publish, for the period of at least thirty days immediately preceding such general or special election, in some newspaper published within such county, a notice that such question will be submitted to the duly-qualified electors as aforesaid, at such election. The county treasurer of such county shall make out and cause to be delivered to the judges of election, in each election precinct in the county, prior to the said election, a certified list of the tax-payers in such county who shall have paid taxes upon property assessed to them in such county in the preceding year; and no person shall vote upon the question of the funding of the county indebtedness unless his name shall appear upon such list, nor unless he shall have paid all county taxes assessed against him in such county in the preceding year. If a majority of the votes lawfully cast upon the question of such funding of the floating county indebtedness shall be for the funding of such indebtedness, the board of county commissioners may issue to any person or corporation holding any county warrant or warrants issued prior to the date of the first publication of the aforementioned notice coupon bonds of such county in exchange therefor, at par. No bonds shall be issued of less denomination than one hundred dollars, and, if issued for a greater amount, then for some multiple of that sum, and the rate of interest shall not exceed eight per cent. per annum. The interest to be paid semi-annually, at the office of the county treasurer, or in the city of New York, at the option of the holders thereof. Such bonds to be payable at the pleasure of the county, after ten years from the date of their issuance, but absolutely due and payable twenty years after date of issue. The whole amount of bonds issued under this act shall not exceed the sum of the county indebtedness at the date of the first publication of the aforementioned notice, and the amount shall be determined by the county commissioners, and a certificate made of the same, and made a part of the records of the county; and any bond issued in excess of said sum shall be null and void; and all bonds issued under the provisions of this act shall be registered in the office of the state auditor, to whom a fee of ten cents shall be paid for recording each bond.

Sec. 2. All bonds which may be issued under the provisions of this act shall be signed by the chairman of the board of county commissioners, countersigned by the county treasurer of the county, and attested by the clerk of said county, and bear the seal of the county upon each bond, and shall be numbered and registered in a book

as did those in that case, how many bonds were issued, or how large each series was.

The provision of the constitution of 1876, referred to, both in this case and in that, (article 11, § 6,) is as follows:

"No county shall contract any debt by loan in any form, except for the purpose of erecting necessary public buildings. making or repairing public roads and bridges; and such indebtedness contracted in any one year shall not exceed the rates upon the taxable property in such coun

kept for that purpose by the county treasurer, in the order in which they are issued; each bond shall state upon its face the amount for which the same is issued, to whom issued, and the date of its issuance.

Sec. 3. The county commissioners shall be authorized to prescribe the form of such bonds, and the coupons thereto, and to provide for the halfyearly interest accruing on such bonds actually issued and delivered. They shall levy annually a sufficient tax to fully discharge such interest, and for the ultimate redemption of such bondsthey shall levy annually, after nine years from the date of such issuance, such tax upou all the taxable property in their county as shall create a yearly fund equal to ten (10) per cent. of the whole amount of such bonds issued, which fund shall be called the "redemption fund. " And all taxes for interest on and for the redemption of such bonds shall be paid in cash only, and shall be kept by the county treasurer as a special fund, to be used in payment of interest on and for the redemption of such bonds only; and such taxes shall be levied and collected as other taxes.

Sec. 4. It shall be the duty of the county treas urer, when there are sufficient funds in his hands to the credit of the redemption fund, to pay in full the principal and interest of any such bonds, immediately to call in and pay as many of such bonds, and accrued interest thereon, as the funds on hand will liquidate, as herein before provided. Such bond or bonds shail be paid in the order of their number; and, when any bonds or coupons issued under this act are taken up, it shall be the duty of such treasurer to certify his action to the board of county commissioners, who shall cancel the same, so that they can be plainly identified, and cause a record to be made of the same; and, when it is desired to redeem any of such bonds, the county treasurer shall cause to be published for thirty days,. in some newspaper at or nearest the county-seat of the county, and in a newspaper published in the city of Denver, a notice that certain county bonds, by numbers and amounts, will be paid upon presentation, and at the expiration of thirty days such bonds shall cease to bear interest.

Sec. 5. All persons voting on the question as bereinbefore provided shall vote by separate ballot, which shall be deposited in a box to be used for that purpose only, and on which ballot shall be printed the words, "For funding county debt, " or Against funding county debt;" and if, upon canvassing to [the] vote, (which shall be canvassed in the same manner as the vote for county officers.) it shall appear that a majority of all votes cast upon the question so submitted are for funding the county debt, then the county commissioners shall be authorized to carry out the provisions of this act, and the canvassing board shall certify the vote, and it shall be made part of the county records. The judges of election shall make and certify to the clerk of the county a separate list of the names of the electorsvoting upon the question of the funding of the county indebtedness in the order in which the ballot of the elector so voting is received, and each ballot shall be numbered in the order in which it is received, and the number recorded and [on] the said list of voters opposite the name of the voter who presents the ballot. Laws 1881, p. 85, §§ 1-5.

ty, following, to-wit: Counties in which the assessed valuation of taxable property shall exceed five millions of dollars, one dollar and fifty cents on each thousand dollars thereof; counties in which such valuation shall be less than five millions of dollars, three dollars on each thousand dollars thereof; and the aggregate amount of indebtedness of any county, for all purposes, exclusive of debts contracted before the adoption of this constitution, shall not at any time exceed twice the amount above herein limited, unless when, in manner provided by law, the question of incurring such debt shall, at a general election, be submitted to such of the qual. ified electors of such county as in the year last preceding such election shall have paid a tax upon property assessed to them in such county, and a majority of those voting thereon shall vote in favor of incurring the debt; but the bonds, if any be issued therefor, shall not run less than ten years; and the aggregate amount of debt so contracted shall not at any time exceed twice the rate upon the valuation last herein mentioned: provided, that this section shall not apply to counties having a valuation of less than one million of dollars."

We held in that case that the county was not estopped from "pleading the constitutional limitation, because there was no recital in the bonds in regard to it, and because, also, the bonds showing upon their face that they were issued to the amount of $500,000, the purchaser, having that data before him, was bound to ascertain from the records the total assessed valuation of the taxable property of the County, and determine for himself, by a simple arithmetical calcnlation, whether the issue was in harmony with the constitution; and that the bonds, having been issued in violation of that provision of the constitution, were not valid obligations of the county. Our decision was based largely upon the ruling of this court in Dixon Co. v. Field, 111 U. S. 83, 4 Sup. Ct. Rep. 315. To the views expressed in that case we still adhere; and the only question for us now to consider, therefore, is: Do the additional recitals in these bonds, above set out, and the absence from their face of anything showing the total number issued of each series, and the total amount in all, estop the county from pleading the constitutional limitation?

In our opinion, these two features are of vital importance in distinguishing this case from Lake Co. v. Graham and Dixon Co. v. Field, and are sufficient to operate as an estoppel against the county. Of course, the purchaser of bonds in open market was bound to take notice of the constitutional limitation on the county with respect to indebtedness which it might incur. But when, upon the face of the bonds, there was an express recital that that limitation had not been passed, and the bonds themselves did not show that it had, he was bound to look no further. An examination of any particular bond would not disclose, as it would in the Lake Co. Case and in Dixon Co. v. Field, that, as a matter of fact, the con

stitutional limitation had been exceeded in the issue of the series of bonds. The purchaser might even know, indeed it may be admitted that he would be required to know, the assessed valuation of the taxable property of the county, and yet he could not ascertain by reference to one of the bonds and the assessment roll whether the county had exceeded its power, under the constitution, in the premises. True, if a purchaser had seen the whole issue of each series of bonds, and then compared it with the assessment roll, he might have been able to discover whether the issue exceeded the amount of indebtedness limited by the constitution. But that is not the test to apply to a transaction of this nature. It is not supposed that any one person would purchase all of the bonds at one time, as that is not the usual course of business of this kind. The test is, what does each individual bond disclose? If the face of one of the bonds had disclosed that, as & matter of fact, the recital in it, with respect to the constitutional limitation, was false, of course the county would not be bound by that recital, and would not be estopped from pleading the invalidity of the bonds in this particular. Such was the case in Lake Co. v. Graham and Dixon Co. v. Field. But that is not this case. Here, by virtue of the statute under which the bonds were issued, the county commissioners were to determine the amount to be issued, which was not to exceed the total amount of the indebtedness at the date of the first publication of the notice requesting the holders of county warrants to exchange their warrants for bonds, at par. The statute, ir terms, gave to the commissioners the de termination of a fact,—that is, whether the issue of bonds was in accordance with the constitution of the state and the statute under which they were issued,-and re quired them to spread a certificate of that determination upon the records of the county. The recital in the bond to the effect that such determination has been made, and that the constitutional limitation had not been exceeded in the issue of the bonds, taken in connection with the fact that the bonds themselves did not show such recital to be untrue, under the law, estops the county from saying that it is untrue. Town of Coloma v. Eaves, 92 U. S. 484; Town of Venice v. Murdock, Id. 494; Marcy v. Township of Oswego, Id. 637; Wilson v. Salamanca Tp., 99 U.S. 499; Buchanan v. Litchfield, 102 U. S. 278; Northern Bank v. Porter Tp., 110 U. S. 608, 4 Sup. Ct. Rep. 254.

The rule respecting the binding force of recitals in bonds is well stated in Town of Coloma v. Eaves, as follows: "Where legislative authority has been given to a municipality, or to its officers, to subscribe for the stock of a railroad company, and to issue municipal bonds in payment, but only on some precedent condition, such as a popular vote favor. ing the subscription, and where it may be gathered from the legislative enactment that the officers of the municipality were invested with power to decide whether the condition precedent has been

complied with, their recital that it has been, made in the bonds issued by them and held by a bona fide purchaser, is conclusive of the fact, and binding upon the municipality; for the recital is itself a decision of the fact by the appointed tribunal." 92 U. S. 491.

In Buchanan v. Litchfield, while hold ing that the bonds were in excess of the amount that could be legally issued, and that the recitals in the bonds were not sufficient to estop the municipality from pleading a want of authority to issue them, the court say: "As. therefore, neither the constitution nor the statute prescribed any rule or test by which persons contracting with municipal corporations should ascertain the extent of their 'existing indebtedness,' it would seem that if the bonds in question had contained recitals which, upon any fair construction, amounted to a representation on the part of the constituted authorities of the city that the requirements of the constitution were met, that is, that the city's indebtedness, increased by the amount of the bonds in question, was within the constitutional limit,-then the city, under the decisions of this court, might have been estopped from disputing the truth of such representations as against a bona fide holder of its bonds. The case might, then, perhaps, have been brought within the rule announced by this court in Town of Coloma v. Eaves.' And again: "Had the bonds made the additional recital that they were issued in accordance with the constitution, or had the ordinance stated, in any form, that the proposed indebtedness was within the constitutional limit, or had the statute restricted the exercise of the authority therein conferred to those municipal corporations whose indebtedness did not, at the time, exceed the constitutional limit, there would have been ground for holding that the city could not, as against the plaintiff, dispute the fair inference to be drawn from such recital or statement, as to the extent of its existing indebtedness." 102 U. S. 292.

We think this case comes fairly within the principles of those just cited; and that it is not governed by Dixon Co. v. Field and Lake Co. v. Graham, but is distinguishable from them in the essential particulars above noted. Judgment af.

firmed.

Mr. Justice GRAY dissented.

(142 U. S. 366)

bonded indebtedness of the district, or he may exchange such bonds for outstanding bonds, par for par, but the bonds hereby authorized shall be issued for no other purpose than the funding of outstanding bonded indebtedness." Laws Iowa 1880, c. 132. The bonds recited that they were issued in pursuance of and in accordance with such statute and the constitution of the state, and the resolution of the district board, and plaintiff purchased them from the duly-auAt the thorized agent of the district at par. time of their issue the total valuation of the taxable property within the district, as shown by the next preceding state and county tax-lists, was $131,038. Only a small proportion of the proceeds were in fact applied in payment of the outstanding bonds, the remainder being applied on other obligations of the district. Held that, under the provision of the state constitution that "no county, or other political or municipal corpo.. ration, shall be allowed to become indebted in any manner, or for any purpose, to an amount in the aggregate exceeding five per centum on the value of the taxable property within such county or corporation, to be ascertained by the last state and county tax-lists, previous to the incurring of such indebtedness," (Const. Iowa 1857, art. 11, 88,) that such bonds were not enforceable in plaintiff's hands. Mr. Justices BROWN, HARLAN, and BREWER dissenting. 42 Fed. 644, reversed. In error to the circuit court of the United States for the northern district of Iowa. Reversed.

STATEMENT BY MR. JUSTICE GRAY.

The original action was brought by Theron Cummins, a citizen of Illinois, on coupons attached to negotiable bonds is. sued by the defendant, a district township of Iowa, under the statute of Iowa of 1880, c. 132, the material provisions of which are copied in the margin.1

The defendant denied the validity of the bonds, on the ground that they were issued in violation of the constitution of Iowa of 1857, art. 11, § 3, likewise copied in the margin.2

A jury was duly waived, and the case was submitted to the circuit court, which found the following facts:

The defendant is a school-district in Lyon county, Iowa, having power to contract in its corporate name, and to issue

1 Section 1. Any independent school-district or district township now or hereafter having a bonded indebtedness outstanding is hereby authorized to issue negotiable bonds, at any rate of interest not exceeding seven per cent. per annum, payable semi-annually, for the purpose of funding said indebtedness, said bonds to be issued upon a resolution of the board of directors of said district: provided, that said resolution shall not be valid unless adopted by a two-thirds vote of said directors.

Sec. 2. The treasurer of such district is hereby authorized to sell the bonds provided for in this act at not less than their par value, and apply the

TY, IOWA, v. CUMMINS.

(January 4, 1892.)

MUNICIPAL CORPORATIONS-LIMITATION OF INDEBTEDNESS-BONDS OF SCHOOL-DISTRICT.

Defendant school-district, for the purpose of funding an outstanding bonded indebtedness of $20,000 at a reduced rate of interest, in pursuance of a resolution of the district board, regularly passed, issued funding bonds under a statute authorizing such issue, and providing that "the treasurer of such district is hereby authorized to sell the bonds provided for in this act at not less than their par value, and apply the proeeds thereof to the payment of the outstanding |

ing bonded indebtedness of the district, or he may exchange such bonds for outstanding bonds, par for par, but the bonds hereby authorized shall be issued for no other purpose than the funding of outstanding bonded indebtedness. Laws Gen. Assem. Iowa, 127.

No county, or other political or municipal corporation, shall be allowed to become indebted in any manner, or for any purpose, to an amount in the aggregate exceeding five per centum on the value of the taxable property within such county or corporation, to be ascertained by the last state and county tax-lists previous to the incur ring of such indebtedness. 1 Charters & Consts. 565.

998.

negotiable bonds. From the date of its organization its affairs have been badly managed, and, through fraud and incompetency on the part of the officers of the district, indebtedness to a very large extent has been created against the district, part of which was evidenced by bonds of the district, part by judgments against it, and part by warrants or orders drawn on its different funds.

On July 9, 1881, the board of directors of the district unanimously adopted a resolution to issne, "for the purpose of funding the outstanding bonded indebtedness of the district," bonds to an amount not exceeding $25,000, in accordance with the statute aforesaid, to run for 10 years. and payable after 5 years, at the pleasure of the district, and bearing interest at the annual rate of 7 per cent., with interest coupons attached; and appointing one Richards "refunding agent to negotiate said bonds," to take up the aforesaid indebtedness, and to report his doings to the district.

In pursuance of this resolution, 25 bonds were prepared and signed by the proper officers of the district, dated July 11, 1881, for the sum of $1,000 each, having the statute aforesaid printed upon them, and containing the following recital:

"This

bond is executed and issued by the board of directors of said school-district in pur. suance of and in accordance with chapter 132, Laws 18th Gen. Assem. Iowa, is in accordance with the laws and constitution of the state of Iowa, and in couformity with a resolution of said board of directors passed in accordance with said chapter 132 at a meeting thereof held 9th day of July, 1881.

Ten of these bonds were sold on July 25, 1881, and ten others on August 11, 1881, for their par value in cash, by Richards to the plaintiff, who, at the time of his first purchase, knew that it was the defendant's purpose to issue bonds to the amount of $20,000 at least, or $25,000 if necessary. The remaining five bonds were sold by Richards on December 20, 1881, to another party.

At the time of issuing the bonds in question, the total valuation of the taxable property within the district, as shown by the next preceding state and county tax-lists, was $131,038. The evidence failed to show the exact amount of bonds of the defendant outstanding on July 11, 1881, but the amount of such bonds, with interest, exceeded $20,000. Large amounts of warrants had been issued by the district from time to time for various purposes, a portion, at least, of which was fraudulent; and there were outstanding unsatisfied judgments against it for $11,700. Many frauds had been perpetrated by the officers of the district, and thereby the amount of indebtedness evidenced by its bonds and by judgments against it had been fraudulently increased. But the evidence failed to show that any of those bonds had been issued in violation of the above provision of the constitution of Iowa, or that a successful defense could have been interposed by the defendant against the holders of any of them.

Of the proceeds of the sale of the new

bonds, the sum of $19,174 was paid out by Richards at various times from July 30, 1881, to March 4, 1882, in discharging bonds, coupons, judgments, warrants, and orders drawn on the teachers', contingent, and school-house funds, and the balance of $6,485.79 was paid to the defendant's treasurer. His report, which was made part of the findings of fact, showed that, of the sum of $19,174, less than $6,000 was applied to the payment of outstanding bonds and coupons, $875 in paying interest on the new bonis, and the rest to the other purposes above mentioned.

The defendant regularly paid interest on the new bonds until and including July, 1885, and this action was brought on the coupons falling due in 1886, 1887, 1888, and 1889.

On these facts the court gave judgment for the plaintiff for $6,462.40, being the amount of the coupons sued on, with interest. 42 Fed. Rep. 644. The defendant sued out this writ of error.

B. F. Kauffman, for plaintiff in error. J. H. Swan, for defendant in error.

* Mr. Justice GRAY, after stating the case as above, delivered the opinion of the court.

The constitution of Iowa, art. 11, § 3, ordains as follows: "No county, or other political or municipal corporation, shall be allowed to become indebted in any manner, or for any purpose, to an amount in the aggregate exceeding 5 per centum on the value of the taxable property within such county or corporation, to be ascertained by the last state and county taxlists, previous to the incurring of such in-debtedness.

"

*The scope and meaning of this provision of the fundamental and paramount law of the state are clear and unmistakable. No municipal corporation "shall be allowed" to contract debts beyond the constitutional limit. When that limit has been reached, no debt can be contracted in any manner or for any purpose." The limit of the aggregate debt of the municipality is fixed at 5 per cent. of the value of the taxable property within it; and that value is to be ascertained" by the last state and county tax-lists," which are public records, open to all, and of the contents of which all are bound to take notice. The prohibition is addressed to the legis lature as well as to all municipal boards and officers, and to the people, and forbids any and all of them to create, or to give binding force to, any debts of the corporation in excess of the limit prescribed. The prohibition extending to debts contracted “in any manner, or for any purpose," it matters not whether they are in every sense new debts, or are debts contracted for the purpose of paying old ones, so long as the aggregate of all debts, old and new, outstanding at one time, and on which the corporation is liable to be sued, exceeds the constitutional limit. The power of the legislature in this respect be ing restricted and controlled by the constitution, any statute which purports to authorize a municipal corporation to con. tract debts in any manner or for any pur.

pose whatever in excess of that limit is to | that extent unconstitutional and void.

By the terms of the statute of lowa of 1880, c. 132, under which the bonds in question were issued, any independent schooldistrict or district township, having a bonded indebtedness outstanding, is authorized to issue negotiable bonds for the purpose of funding that indebtedness; and "the treasurer of such district is hereby authorized to sell the bonds provided for in this act at not less than their par value, and apply the proceeds thereof to the payment of the outstanding bonded indebtedness of the district, or he may exchange such bonds for outstanding bonds, par for par.

There is a wide difference in the two alternatives which this statute undertakes to authorize. The second alternative, of exchanging bonds issued under the statute for outstanding bonds, by which the new bonds, as soon as issued to the holders of the old ones, would be a substitute for and an extinguishment of them, so that the aggregate outstanding indebtedness of the corporation would not be increased, might be consistent with the constitution. But under the first alternative, by which the treasurer is authorized to sell the new bonds, and to apply the proceeds of the sale to the payment of the outstanding ones, it is evident that, if (as in the case at bar) new bonds are issued without a cancellation or surrender of the old ones, the aggregate debt outstanding, and on which the corporation is liable to be sued, is at once and necessarily increased, and, if new bonds equal in amount to the old ones are so issued at one time, is doubled; and that it will remain at the increased amount until the proceeds of the new bonds are applied to the payment of the old ones, or until some of the obligations are otherwise discharged.

It is true that if the proceeds of the sale are used by the municipal officers, as directed by the statute, in paying off the old debt, the aggregate indebtedness will ultimately be reduced to the former limit. But it is none the less true that it has been increased in the interval; and that, unless those officers do their duty, the increase will be permanent. It would be inconsist ent alike with the words, and with the object, of the constitutional provision, framed to protect municipal corporations from being loaded with debt beyond a certain limit, to make their liability to be charged with debts contracted beyond that limit depend solely upon the discretion or the honesty of their officers.

There could be no better illustration of the reasonableness, if not the necessity, of this construction, in order to secure to municipal corporations the protection intended and declared by the constitution of the state, than is afforded by the facts of the present case. The total valuation of the property of the district, as shown by the last state and county tax-list before it Issued the bonds in question, was $131,038, 5 per cent. of which, or $6,551.90, was the limit beyond which it was prohibited by the constitution to contract debts. Its outstanding bonded debt was already not less than $20,000, which upon the facts

found must be assumed to be valid. For the purpose of funding that debt it execut. ed and sold bonds to the amount of $25,000, and it actually applied less than $6,000 of the proceeds of the sale to the payment of outstanding bonds. The result of holding the new bonds good would be to double the whole bonded debt of the district, and to bring it up to about 30 per cent. of the valuation.

This construction of the constitution of Iowa appears to us to be warranted, and indeed required, by previous decisions of this court.

In construing a prohibition of the constitution of Illinois of 1870, art. 9, § 12, expressed in substantially the same words, this court, speaking by Mr. Justice HARLAN, said: "The words employed are too explicit to leave any doubt as to the object of the constitutional restriction upon municipal indebtedness. The purpose of its framers, beyond all question, was to withhold from the legislative department the power to confer upon municipal corporations authority to incur indebtedness in excess of a prescribed amount." "No legislation could confer upon a municipal corporation authority to contract indebtedness which the constitution expressly declared it should not be allowed to inenr. Buchanan v. Litchfield, 102 C. S. 278, 287, 288. It is proper to add that the bonds there held invalid recited that they had been issued in accordance with a certain legislative act and municipal ordinance, but neither the bonds, the statute, nor the ordinance mentioned the constitutional restriction; and that it was intimated in the opinion that if the bonds had contained further recitals which, fairly construed, amounted to a representation that the proposed indebtedness was within the constitutional limit, the city might have been estopped to dispute the truth of the representation as against a bona fide holder of the bonds. 102 U. S. 290, 292. This court afterwards held that the original purchaser of the bonds thus held invalid could not maintain a suit in equity against the city to recover back the money paid for them; and, speaking by Mr. Justice MILLER, after quoting the constitutional provision, and emphasizinga the words, “indebted in any manner or for any purpose," said: "It shall not become indebted. Shall not incur incur any pecuniary liability. It shall not do this in any manner. Neither by bonds, nor notes, nor by express or implied promises. Nor shall it be done for any purpose. No matter how urgent, how useful, how unanimous the wish. There stands the existing indebtedness to a given amount in relation to the sources of paymeat as an impassable obstacle to the creation of any further debt, in any manner, or for any purpose whatever. If this prohibition is worth anything, it is as effectual against the implied as the express promise, and is as binding in a court of chancery as a court of law." Litchfield v. Ballou, 114 U. S. 190, 192, 193, 5 Sup. Ct. Rep. 820.

In Dixon Co. v. Field, 111 U. S. 83, 4 Sup. Ct. Rep. 315, there was brought in question the effect of the constitution of Ne