
    State, ex rel. Gage Co., v. Thos. H. Benton.
    [Filed January 27, 1892.]
    County Bonds: Refunding. County bonds issued to aid in the construction of works of internal improvement can be refunded only under the provisions of the act of February 28, 1883, entitled “An act to authorize eourities to issue bonds for refunding their bonded indebtedness, and providing for registering and certifying the same, and for levying a tax to pay the interest and principal thereof.”
    Original application for mandamus.
    
    
      Charles O. Bates, for relator.
    
      Geo. II Hastings, Attorney General, contra.
    
   Norval, J.

This is an original application to this court for a peremptory writ of mandamus to compel the respondent, as auditor of public accounts, to register certain refunding bonds issued by Gage county. There is no controversy upon the facts.

On the 1st day of July, 1871, the county of Gage duly issued its bonds to the amount of $50,000, bearing eight per cent interest per anuum, payable semi-annually, due in twenty years from date, to aid in the construction of the Omaha & Southwestern railroad.

On the 9th day of June, 1891, the county board of said county adopted a resolution to refund said bonds by the issue of the coupon bonds of said county to the amount of $50,000, to be dated July 1, 1891, due in twenty years from their date, at five per cent interest, payable semiannually, and instructed the chairman of the board and the county clerk to execute and issue said bonds and to present the same to the auditor for registration. Pursuant to said resolution said bonds were issued and presented to the respondent for registration, who refused to register the same. These refunding bonds were issued under the provisions of an act of the legislature of this state, entitled “An act to authorize counties to issue bonds for refunding their bonded inebtedness, and providing for registering and certifying the same, and for levying a tax to pay the interest and principal thereof,” approved February 28,1883. Each bond recites on its face that it “is issued for the purpose of refunding one series of bonds heretofore issued by the said county of Gage, and dated the 1st day of July, A. D. 1871, for the sum of $50,000 and accrued and unpaid interest, issued to the Omaha & Southwestern Railroad Company, to aid in the construction of said railroad into said county, which remain unexchanged and unpaid, and payable twenty years from date thereof, with interest at eight per cent per annum, payable semi-annually.”

The respondent contends, first, that bonds issued to aid in the construction of works of internal improvements cannot be refunded under the provisions of the act of 1883 above referred to; second, the act is limited in its scope, by the second section thereof, %to bonds which have been held and determined to be valid obligations in the hands of bona fide holders by a court of competent jurisdiction in an action thereon, or on some coupon thereof; third, internal improvement bonds can be refunded only under the provisions of chapter 59 of the Session Laws of 1885.

The same propositions were fully considered in the opinion in the ease of State, ex rel. Seward County, v. Benton, filed herewith, ante, p. 823, and were decided adversely to the contention of the respondent. Following that decision, the bonds in the case at bar are entitled to registration; A peremptory writ is

Allowed.

The other judges concur.  