MARION COUNTY v. COLER et al., 67 F. 60

McCORMICK, Circuit Judge. The debt which is the consideration of the bonds involved in this case was contracted before the adoption of the constitution now in force in Texas. At the time it was contracted, there ivas no provision in the constitution of the state similar to

section 9 of

article 8, or to sections 5 and 7 of

article 11, of the constitution adopted in 1876. The constitution being silent, the legislature had power to provide, in its discretion, for the taxing of property in the state, and for the distribution and appropriation of the taxes to be raised. New Orleans v. Clark, 95 U. S. 644. The contention that the enabling act violated fundamental principles, and is therefore invalid, does not seem to be supported by authority.

The contention that the enabling act of February 22, 1873, required provision to be made for the payment of the interest, and creating a sinking fund, before the contraction of the debt and the execution of the bonds, does not appear to be supported by the terms of statute. On the contrary, it appears that the authority given the specially named commissioners to contract the debt was full and complete, and the duty was imposed on the county government to execute the bonds to meet the debt, and to provide for the interest and required sinking fund before issuing the bonds.

The power to provide the courthouse and jail is not made contingent on any action by the county. The contractor who erected the buildings might be paid in the bonds of the county, or out of the proceeds of the sale of its bonds; but the county could not, by its refusal to execute the bonds, or by its refusal or neglect to provide for the levy and collection of a tax sufficient to meet the interest and sinking fund, defeat the execution of the power conferred by the statute to provide a courthouse and jail for the county.

These necessary public grounds and buildings were secured; the bonds were executed and issued; and at the January term, 1874, of the proper court of the county a,n order was made and entered levying a tax to pay the interest and sinking fund, and the rax was collected annually for several years thereafter. We see no ground co question the validity of the bonds. The judgment of the circuit court is affirmed.