
    No. 803.
    The State ex rel. E. J. Forstall & Sons vs. The Board of Liquidation.
    The bonds oí the State, issued in aid oí the Consolidated Association of Planters, are unquestionable debts of the State, possessing all the characteristics and requisites that are necessary to entitle them to be exchanged for consolidated bonds under the provisions of the Eunding'Bill.
    The fact that these bonds were at one time classed by the Auditor of Public Accounts as contingent liabilities of the State, does not change or affect their character.
    Appeal from the Third District Court of New Orleans. Monroe, J.
    
      Breaux, Fenner & Hall for the Relators. H. N. Ogden, Attorney General for the Respondent.
   Egan, J.

This is a proceeding by mandamus to compel the'funding of certain bonds of the State of Louisiana issued in aid of the Consolidated Association of the Planters of Louisiana, under Act No. 19 of 1828 and of certain interest coupons amounting, at the time of the application, to $79,927.50.

These bonds and coupons are of the same class and series with those in the case of Lesassier & Binder v. The Board of Liquidation.

In obedience to the view taken by this court in that case, the Board was proceeding to fund the bonds, etc., in question in this ease, and had actually taken all the preliminary steps for that purpose when they stopped in consequence of their interpretation of a decision of the majority of the court in the case of the N. O. Pacific R. R. Co. v. Francis T. Nicholls, Governor, et als.

In the Lesassier & Binder ease, we copied one of the bonds in the opinion. By reference to that case and to the Act under which they were issued it will appear that the bonds in question are the absolute and unconditional promises of the State of Louisiana to pay the same and that the State is the sole obligor in the bonds.

They are signed by Governor Derbigny and countersigned by the Treasurer on behalf of the State. Whatever may be the relation between the State and the Association as betioeen themselves, by no possible interpretation can the State be considered anything less or other than the principal and indeed the sole obligor upon the bonds or to the holders thereof. The fact that the Act made them transferrible by the indorsement of the President and Cashier of the Association no more modified or changed the obligation of the State than if they had been drawn payable to bearer or had been the obligations of any individual or private person.

They are unquestioned and unquestionable debts of the State of Louisiana, possessing all the requisites and characteristics, which entitle them to be exchanged for consolidated bonds under the provisions of the funding bill 'and its Amendment.

No distinction is made against them by the broad and general terms either of the Act or of the Constitutional Amendment.

By the third section of the original funding act, it is provided that upon application by the holders, new consolidated bonds “shall be exchanged by the Board of Liquidation for all valid outstanding bonds of the State.”

Those now under consideration are both valid and outstanding, The fact that they were at one time classed by the Auditor in his report as contingent liabilities of the State could not and does not change their form or obligation.

It has been argued with great earnestness that there are very marked distinctions between the bonds issued to the Consolidation Association and those issued to the account of the Citizens’ Bank — a matter we are not called on to determine in this case.

The judgment below made the mandamus peremptory.

Judgment affirmed.

Dissenting opinion.

Spencer, J.

For the reasons stated in the case of “ The State ex rel. N. O. Pacific R. R. Co. v. F. T. Nicholls et als,” I dissent from the decree in this case.

In my opinion it is a matter of no moment whether the bonds issued to the Planters’ Association were or not absolute liabilities of the State — or merely “ contingent” and conditional.

It is clear to me, from the proceedings of the Legislature in adopting the funding bill, and in proposing the Amendments of the Constitution relative thereto, that the Citizens’ Bank bonds and the Planters’ Association bonds were excepted and excluded from the Funding Scheme.

The report of the Auditor, referred to in the Pacific Railroad case, classing these Planters’ Association bonds as “contingent” liabilities does not of course make them “ contingent,” and in that decision we refer to them as “ contingent ” simply as a convenient mode of designating those bonds which were excluded from the proposed funding process — and because under that appellation they figured on the Auditor’s report which served, and was adopted, as the basis of the Funding Bill and the accompanying Amendments.

I hold that these bonds cannot be funded because the Legislature did not intend to embrace them in the Scheme, and not because they are notin fact “ contingent ” debts of the State.

This question was not raised or brought to our notice in the Lesassier & Binder case, and in that case we simply decided that these bonds were absolute, valid debts of the State, and I still think they are — but for the reasons stated they are not fundable.

The Chief Justice concurs with Justice Spencer.  