
    No. 7181.
    Sun Mutual Insurance Company vs. Board of Liquidation. Secretary of State and Auditor, Intervenors.
    The sale of bonds constituting a part of the assets of the "free school fund,” made in virtue of act No. 81 of 1872, was utterly null and void, and conferred no title on the purchaser, and no future assignee of the purchaser, who took the bonds in good faith, for value, and before their maturity, could acquire a title to them.
    Bonds that are a part of the assets of the " free school fund ” are consigned by law to the custody of the Secretary of State and Auditor of Public Accounts, and those officers have a right to claim their possession in whatever hands they may be found. And this right is not affected by the prescription of three years.
    j^PPEAL from the Fifth District Court, parish of Orleans. Rogers, J.
    
      Leovy & Kruttschnitt for plaintiffs and appellees.
    
      Jas. 0. Egan, Assistant Attorney General, for intervenors and appellants.
   The opinion of the court was delivered by

Spencer, J.

Plaintiffs brought this suit to compel the Board of Liquidation to fund eleven bonds of $1000 each of the series issued to the New Orleans, Jackson & Great Northern Railroad under act of 1853.

The State, the Auditor, and Secretary of State intervened, alleging that said bonds belonged to and constituted part of the assets of the “ Free School Fund,” and pray that the same be delivered to them, the said Auditor and Secretary being the lawful custodians thereof.

The court below ordered the Board to fund the bonds, and rejected the demands of intervenors, as in case of nonsuit.

There is no serious contest over the legality of the bonds as lawful debts of the State. The contest is between the plaintiffs and the intervenors.

It appears and is admitted that these bonds did belong to and constitute part of the assets of the “ Free School Fund,” organized and created by acts No. 321 of 1855, and No. 182 of 1857, pursuant to the act of Congress of February 15,1843, 5th Statute at Large, p. 600.

It also appears that these bonds were sold, in pursuance of act 81 of 1872.

That they were acquired by plaintiffs before maturity, from persons who bought them at said sale. That plaintiffs are all citizens of Louisiana, and had no other notice of the fact that these bonds belonged to the “ Free School Fund” than would result from their presumed knowledge of the acts and proceedings of the State and its officials.

In “State ex rel. Durant vs. Board of Liquidation,” 29 A. 77, we had occasion to consider the legality and constitutionality of the act 81 of 1872, abolishing the “ Free School Fund,” transferring its assets to the- “ Redemption of Floating Debt Fund,” and directing their sale for the benefit of said last named fund. We there held that said act 81 was an act of spoliation — violative of the said act of Congress, and of the acts-of 1855 and 1857, carrying the same into effect, and of Art. 139 of the constitution of 1868, and that the sales of the bonds of said school fund under said act 81 were null and void and conferred no title on the-purchaser. We adhere to that view, and refer to that case as supplementary to our opinion in this. These sales were made in violation of prohibitory laws.

The Free School Fund having acquired said bonds,, they became-under the said act of Congress, and the acts of the Legislature of 1855- and 1857, carrying said act of Congress into effect, and under the constitution of 1868 affirming said acts of 1855 and 1857, inviolably appropriated, to the support of public schools, “ and for no other use or purpose whatsoever.” These laws to all intents and purposes took said, bonds out of commerce. They were placed in the special and joint custody of the Secretary of State and Treasurer, who were required to execute duplicate receipts therefor, and “to be and remain a perpetual fund” “ inviolably appropriated” to support of public schools.

We agree with the Assistant Attorney General that they ceased to be negotiable by virtue of these positive declarations of legislative will, and that the usages and laws of commerce relative to negotiable paper are superseded by these positive enactments, and are inapplicable to the case. We follow the commercial law only when it does not conflict with statute laws of the State, but no further. 21 A. 568. It is within the power of the State to destroy the negotiability of all paper, and to withdraw from commerce such things as it may deem proper.

Nor are we prepared to say that the purchasers of these bonds were guilty of no laches. Theyiean not plead ignorance of the laws of the United States nor of the constitution, laws, and public acts of the State. They therefore knew that sales of the assets of the school fund under act 81 of 1872 were illegal. They knew what bonds belonged to that fund, for they were exhibited in reports of the proper public-officers. They knew that these bonds had been illegally sold to pay the floating debt; for the sale thereof was duly advertised for thirty-days in the official journal and due return made and officially published.

Ordinary diligence and investigation of facts perfectly accessible and known or presumed to be known by all men would have protected plaintiffs.

The views we have taken and expressed herein render it manifest that the three years prescription pleaded by plaintiffs to intervenors’ demands can not be maintained. The intervenors do not ask any decree against the Board to fund said bonds, and we will therefore make no order in that-regard.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be avoided and reversed, and, proceeding to render such judgment as should have been rendered, it is ordered, adjudged, and decreed that plaintiffs’ demands be rejected, and that the intervenors be and are declared entitled to the possession and custody of the bonds sued on in this case, which are decreed to belong to the Free School Fund.

It is further ordered that said bonds be delivered to intervenors; and that plaintiffs pay costs of both courts.

On Application por Rehearing.

The plaintiffs’ counsel ask a rehearing, on the ground, among others, that “ there is no evidence in the record to show that bonds 716, 717, and 718, herein sued on, ever did belong to the Free School Fund.”

This suit was brought on eleven bonds, and a list giving the numbers of all the bonds held by the school fund was filed in evidence, these numbers being in many instances stated as from one number to another inclusive.

The plaintiffs’ counsel filed an elaborate brief, and argued the case throughout upon the hypothesis that all the bonds in suit belonged to that fund, nowhere intimating that in that labyrinth of numbers three of the bonds sued upon were not embraced.

This court has labor enough, and its power is sufficiently taxed, to decide the issues presented and pressed by counsel, without exploring records to discover defenses and points not urged.

If the counsel had in any way called our attention to the fact now . urged — indeed, it they had not misled us by an argument which seemed to admit that all the bonds sued upon were of those held by the school fund, we should not have made the oversight complained of. We will grant the rehearing only for the purpose of correcting our decree in regard to those three bonds. We see no reason to change it in other respects.

The rehearing is granted.

On Rehearing.

There is no evidence showing that the bonds sued on by one of the plaintiffs, J. E. G-lenny, and numbered 716, 717, and 718, belonged to the Free School Fund.

It is therefore ordered, adjudged, and decreed that our former decree herein be so amended as to reject the claim of intervenors to the three bonds above named; and it is now ordered and decreed that as to said three bonds the judgment appealed from is affirmed, and that they be and are declared legal and valid debts of the State, issued in strict conformity to law and for a valid consideration, and not in violation of the constitution of this State or of the United States, and are as such entitled to be funded in consolidated bonds.

It is further ordered that as to said plaintiff, Glenny, he recover costs of the lower court and pay those of this appeal. That in all other respects our former decree remain undisturbed.

Mr. Justice White took no part in the original, and takes none in this opinion.  