
    JUDITH BASIN IRR. DIST. v. MALOTT et al.
    No. 6878.
    Circuit Court of Appeals, Ninth Circuit.
    Oct. 15, 1934.
    
    
      L. A. Foot, Atty. Gen., of Montana, C. E. Baker, Co. Atty., of Lewistown, Mont., E. K. Cheadle, of Lewistown, Mont., and L. V. Ketter and John C. Erickson, both of Helena, Mont. (John G. Brown, of Helena, Mont., of counsel), for appellant.
    Gunn, Rasch, Hall & Gunn, of Helena, Mont., for appellees.
    Dana E. Brinek and Albert Olsen, both of Spokane, Wash., amici curia,
    Before WILBm SAWTELLE, and GAEEECHT, Circuit Judges,
   _WILBUR, Circuit Judge.

This is an appeal from an order of the District Court of the United States directing the issuance of a writ of mandate. An aetion had been brought in that conrt to secure judgment against the Judith Basin Irrigation Distriet upon certain outstanding bonds issued by the district which were issued and sold in 1921. A judgment had been rendered in that action. The petition for writ of mandamus was filed in that action for the purpose of enforcing the judgment which was rendered on the 19th of October, 1931 in the sum of $77,716. It is alleged in the petition that the distriet had no property subject to execution and that there are no funds in the county treasury of Fergus county in which the irrigation distriet is situated applicable to the payment of the judgment. It is alleged that the petitioners and judgment creditors are the owners of all the bonds of the district ex-™m^;red f ’ 27i 39’ a*d ]}9 for $1,000 each. The judgment was for the principal of the first 40 bonds, to wit, $40,-000 and for the unpaid coupons excepting bonds numbered 21, 27, and 391. The judgment does not cover bonds to 160, which the petitioners alleged they now own. The bonds, by their terms, accrue at different times, ten or twelve bonds, as the casé may be, being payable annually until January 1, 1940'. It would follow that since the rendition of the judgment other bonds now owned by the plaintiff in that action have matured and other interest coupons have matured upon the bonds whieh are not yet due. The county commissioners are acting ex officio as commissioners for the irrigation distriet. All the property within the limits of the irrigation district, amounting to 4,253.35 acres, has been sold at tax sales by the county treasurer of said county to Fergus county for

« * * * delinquent taxes or assessments levied by said irrigation distriet and dp-li-ngnerit general taxes, together with penalties and interest, constituting liens thereon, and certificates of tax sales were issued to said county by said treasurer and filed in his office.

“13. That .the time for redemption from said tax sales and all thereof having expired, and no part of said lands having been redeemed, tax deeds were issued by said county treasurer to said Fergus County, conveying to said county all of said lands, and said county is now in possession and holding title to all of .said lands by virtue of said tax deeds.”

. ,, . , It is alleged that the board. of county commissioners have fixed the * fair market value of said land and parcels thereof for the purpose of such sale upon the assumption that said lands are not subject to future irrigation district taxes or assessments for the payment of any part of the principal or interest of said bonds, and threaten to and will, unless otherwise commanded by this court, notify and advise the purchaser, or purchasers, of the lands at said sale that the said lands will be sold and conveyed by said county free and clear from any and all liability to future taxation for the payment of any part of the principal or interest of said bonds.”

It is further alleged that the price fixed by the county commissioners is less than the amount due and to become due upon the bonds by over $50,006.

n ig d tbat tbe e0lmt commissi(m_ erg bave advertised aíld offered said lands £or gale ag ^ b seeticm 223ñ o£ tbe ^ vised Codes of Montana of 1921, as amended b seetkm g e gg ^ o£ Mont 1927< T]mt seeti(m ^ tbat tbe sale sball not be made &r legg than ^ maxkgb ^

, _ It is further alleged that the county comraissidners “ * * * claim and assert that the purchaser, ^ or purchasers, of said lands when so sold will obtain title thereto free and °tear from any and all liability for future taxes or assessments to pay the principal and interest said bonds which may remain unPaid after tke distribution and application of the proceeds of said sale as provided in said section 2235 as amended.”

That section (2285) was subsequently amended by the Legislature of Montana in 1929 (chapter 162) by providing that the sale should be made to the highest bidder, but the Supreme Court of Montana, in State ex rel. Malott v. Board of County Commissioners, 89 Mont. 37, 296 P. 1, held that this amendment was unconstitutional, in that it violated the contract rights of the bondholders of irrigation districts because it impaired the obligation of the contract between the distriet and the bondholders. They are further “cornmanded, in the event a levy of the taxes or assessments shall not be made for said Irrigation District by the Commissioners of said Distriet for any year, to ascertain the total amount necessary to be raised for all purposes °I sai^ distriet, and make a levy for that year for said distriet as provided in chapter 59 of the Laws of Montana, 1931, and furnisR the county clerk and recorder of said county with a list of said lands and the am0lmt o£ ^ t£m;s Qr assessmellte, as re_ quired by section 7246 of the Revised Codes q£ Montana; 1921 until tbe judgment in this actkm and gaid ^ fuUy id „

The basic question in this case is as to the nature of the obligation of the distriet upon the bonds issued and sold by it. At the time of the issuance of the bonds there were* no decisions by tlie Supreme Court of Montana as to whether or not the bonds wore the’ general obligation of the district. Later the matter came before that court in Cosman v. Chestnut Valley Irr. Dist., 74 Mont. 111, 238, P. 879, 40 A. L. R. 1344, and in Clark v. Demers, 78 Mont. 287, 254 P. 162, and the case of Drake v. Schoregge, 85 Mont. 94, 277 P. 627. In these eases it was held that the bonds of the irrigation district were general obligations of the district. Later, however, the matter was again presented to the Supreme Court of Montana in State ex rel. Malott v. Board of County Commissioners, 89 Mont. 37, 296 P. 1, supra. The Supreme Court of Montana expressly overruled its previous decisions and decided the bonds were not the general obligation of the district, but merely a charge against the lands within the district, and that each tract of land was only liable for its proportion of the entire bonded indebtedness. It wa,s also held in that case that when the land ... had been sold for taxes and conveyed to tlie . , . . . . .. ... county by tax deed and subsequently sold to the county, as provided by law, that the purchaser acquired the lands free and clear from any lien of the bonds or any future taxation for the payment thereof. Ordinarily, it is the duty of the federal court to follow the deeisions of the state court with reference to state legislation. But one of the exceptions to this rale is that when there is no decision of the state court interpreiing a statute and that statute has been the basis for the issua.nee of obligations the statute becomes a part of the contract between the purchaser of the bond and the political corporation issuing the same and the federal courts will exercise their independent judgment in determining the proper construction of the state statute regardless of subsequent decisions of the Supreme Court of the state upon the question, leaning strongly, however, to the adoption of such interpretation if reasonably possible, This case presents a situation of that nature. At the time the bonds involved in this action were issued and sold there was no interpretation of the statute by the Supreme Court of Montana. Under these circumstances this court must exercise its own independent judgment as to the meaning of the statute under which the bonds were issued. Davenport v. Lord, 9 Wall. 409, 19 L. Ed. 704; Bolles v. Town of Brimfield, 120 U. S. 759, 7 S. Ct. 736, 30 L. Ed. 786; Folsom v. Township Ninety-six, 159 U. S. 611, 16 S. Ct. 174, 40 L. Ed. 278; Bourbon County v. Block, 99 U. S. 686, 25 L. Ed. 491; Carroll County v. Smith, 111 U. S. 556, 4 S. Ct. 539, 28 L. Ed. 517; Burgess v. Seligman, 107 U. S. 20, 2 S. Ct. 10, 27 L. Ed. 359; Kuhn v. Fairmont Coal Co., 215 U. S. 349, 30 S. Ct. 140, 54 L. Ed. 228.

The law of Montana authorizing the formatlon of irrigation districts, like that of many western states, is patterned after the Wright Act of California (St. Cal. 1887, p. 29). Tomich v. Union Trust Co., 31 F.(2d) 515. As stated by the Supreme Court of Montana in Re Crow Creek Irrigation District, 63 Mont. 293, 207 P. 121, 122; “In its general legislative plan, our statute is modoled after the Wright Law of California (O’Neill v. Yellowstone Irr. Dist., 44 Mont, 492, 12l P. 283), the constitutionality of whieh has been established by numerous deefsions of the California court and by the deeigion Gf ^jj0 Supreme Court of the United States in Fallbrook Irr. Dist. v. Bradley, 164 U. S. 112, 17 S. Ct. 56, 41 L. Ed. 369.”

See, also, State ex rel. Malott v. Board of County Commissioners, 89 Mont. 37, 76, 80, 296 P. 1, supra.

Ii: ^as been uniformly held that the bonds an irrigation district issued in pursuance ^he Wright Act (St. Cal. 1887, p. 20, as amended) are general obligations o£ the distriet and. this has been true in states where the state legislation has varied slightly from the provisions of the Wright Act but has been based upon it. In Rialto Irr. Dist. v. Stowell, ^46 F. 294, 305, this court held that bonds issued under the Wright Act of California were general obligations of the district. We there stated': ‘We regard it as clear that the bonds here in question constitute a general obligat™11 of the irrigation district to pay the prmcipal and interest thereof as therein provided ^or.n The Circuit Court of Appeals of *he Eighth Circuit in Norris v. Montezuma Valley Irr. Dist., 248 F. 369; held that the bonds of an irrigation district organized under the laws of Colorado, patterned after the Wright Act, were the general obligations of the district.

In Noble v. Yancey, 116 Or. 356, 241 P. 335, 42 A. L. R. 1178, the Supreme Court of Oregon held that the obligations of the irrigation district were the general obligations of the district. The Supreme Court of Washington has held the irrigation district bonds issued under its statute to be the general obligation of the district. State ex rel. Clancy v. Columbia Irr. Dist., 121 Wash. 79, 208 P. 27; State v. Hartung, 150 Wash. 590, 274 P. 181. This holding of the Supreme Court of the State of Washington has been recently a£firmed by the Supreme Court of the United States in Roberts v. Richland Irr. Dist., 289 U. S. 71, 53 S. Ct. 519, 77 L. Ed. 1038.

rm. n ^ , ji th t. i. r. in The Supreme Court of Idaho has held j, , , ,, . . ,7 « that the law of Idaho authorizing the forma- . , . . tion of irrigation districts and providing for ,, . 8 „. t . •. . 3 .i t. t the usnanee of bonds eonstxtnted the bonds a genera ° ga ion o e is rie • ^eee^ decision of the Supreme Court of California . , A1 /v. x T7 -pv i. , is to the same effect. Dougery v. Bettencourt, 2 P.(2d) 765, Id., 214 Cal. 455, 6 P.(2d) 499. m, v\ ? a ,1 ^ ~ v . t The decision of the Supreme Court of. the t x /-o -L x United States above referred to (Roberts v. Riebland Irrigation Distnet) is significant m the ease at bar because it held that notwith0 z-t x^ttti.*^. standmg the Supreme Court of Washington *, t i n xt i . • x- t x ♦ o. t. a a had held that irrigation district bonds issued under its law were- general obligations of the x • x i x -It x t xi /» x at x district, and notwithstanding the fact that J, n; . . , , 8 j. , «, these bonds were issued because of benefits . , ... i ,, , , . ,n .. expected to be denved by the lauds m the dmtnct, t^t the issuance of general obhgatmus of the district to pay therefor was a valid ex-x» 7 • i x- , ,, , t. 7 ercise of legislative power and that such legíslation did not conflict with the prior deci- „ ,, „ „ , . -vf , sion of tbe Supreme Court in Norwood v. Baker, 172 U. S. 269, 19 S. Ct. 187, 43. L. Ed. 443, which latter ease was strongly relied up-t xi n c, . , • on by the Supreme Court of Montana m reaching the conclusion that the bonds of an irrigation district issued in Montana did not create a general obligation of the district but represented a special lien upon tbe lands of the district.

The Supreme Court of Colorado, however, has held that bonds issued by an irrigation district in that state do not permit cumulative assessments upon the lands of the district to cover delinquent assessments upon other lands in the district. Interstate Trust Co. v. Montezuma Valley Irr. Dist., 66 Colo. 219, 181 P. 123. As we have already pointed out, the Circuit Court of Appeals of the Eighth ~ .,7 7 7 j xt. i r 1 j . 3 3 ,, Circuit has held that bonds issued under the . . .. t . . x i a 7 3 ,, irrigation district law of Colorado are the , ... ,. /» 17 t • x • x rm_ • general obhgations ox the district. There is f. _. P n- x 7 x 3 . . « thus a direet conflmt belween the decmions of the Circuit Court of Appeals of the Eighth Circuit and the Supreme Court of the State of Colorado with reference to the interpretation of the statutes of Colorado.

The Supreme Court of Utah, in Nelson v. Board of Commissioners, 62 Utah, 218, 218 P. 952, has held that bonds issued by irrigation districts incorporated under the laws of Utah are not the general obligations of tbe district.

The decision of the Supreme Court of the United States sustaining the validity of the Wright Act of California, Fallbrook Irr. Dist. v. Bradley, 164 U. S. 112, 17 S. Ct. 56, 41 L. Ed. 369, strongly indicated, but did not de- ., ,, ' ,, cide, that the obhgations of the irrigation dis- , . !' ,, 8 , , r *,♦ tnct were the general obligations of the dis- , . , T, . % , , , ° « ,, 3 . . tnct. It is no doubt because of the decisions of ^ gupreme Comrt of ^ TJnited gtates upholding the validity of the districts organ- . , 38 ^ . n , » ■ it, x xt. fix ized under the Wnght Act that other states , , , , . M 7.7,. a proceeded to enact similar legislation and ^ ,, , ,, . , 3 , were able to sell their bonds. While this fact _ ,3 , , ,, , ,. , . would not change the rule which requires the federal foUcw ^ stateHcourts in M tati(m of local Ration, it WOuld , aa a » .. • a n a be an added reason for asserting an mdepend- , . 3 , . , J3 , ñ\ ent judgment m cases where bonds had been A ^ . r „ „ * / ,. % ,, . . , « , able construction of the statute of the state , , , xi*¿. i.x-but also upon the interpretation of that stat- , , V^ 0 n ^ tt ute by the Supreme Court of the United ^ &e earlier decigions' q£ s reme Court of Montana holdin , , * ,7 7 7 T. ,. « the bonds were the general obligations of the .. . . . . ? and thaf 5 , t deci_ . , ,,, , , ... . . sions holding that the bonds constituted a ., , , . ,. , . , , , lien upon, the lands m the district and did not ..-r , , ,,. ,,, constitute general obhgations of the district, ™ are erroneous,

question has been so often presented courts of last resort and so frequently passed upon that we would feel justified in merely referring to those decisions as we have done. In view of the fact, however, that we are not witíl the general frame work ^e Wright Act, but with the specific provisions based thereon which had been enacted by tbe Legislature of Montana, and also with the general taxing system of’that state as enacted b7 tbe Legislature, and the mter-relation of these two ^sterns of taxation, we think *ba* farther comment upon the most °f oftb? SuP™m(i Coiurt oftbe State of Montana is desirable if not required . „ ,, ,3 ... 3 . . by reason 01 the respect due to the decisions ¿ , . , , ._ . . . of the highest court of a sovereign state. As . 3. , • • • we indicated m our previous per curiam memorandum ^ father argument, the eonfliet between tbe federal courts and the gtate courts as to the meaning of the state gtatlltes and ^ rigllts o£ tbe 0f an irrigation district organized under the laws of the state is highly undesirable and to be avoided if possible. We proceed, therefore, to a brief consideration of some of the propositions involved in the determination of whether or not the bonds were the general obligations of the district:

1. In ihe first place, where the Legislaturc authorizes a municipality to issue bonds, the bonds thus evidenced are agreements to pay certain amounts therein speeified by the municipality to the holder of the bond and are on their face a general obligation of the municipality. The bonds in question were issued in that form and the law clearly contemplates that they should he so issued. Authority to issue the bonds implies ar* authority to levy a tax to pay them.

2. It seems to us an insuperable obstacle to the declaring that the bonds constitute a lien only upon the lands of the district that no method is provided by Ihe law of Montana for the apportionment of the debt upon ihe several pieces of land within the district. The only segregation provided is that which results from the imposition of the annual tax to pay interest and principal of the bonds American Falls Reservoir Dist. v. Thrall, 39 Idaho, 105, 228 P. 236. I'his tax was to be levied upon the irrigable land of the district and apportioned according to the irrigable acreage and not ad valorem.

3. The bonds were sold to various individuals'. The amount of the bond does not represent a lien upon any particular piece of property.

, rm_ , •, ,, . j. , . , 4. The bonds on their face purport to be ... j , a ihe obligation of the district and not of any ■ n ■ j. , n specilie piece ox property or ox any owner . .. , . i , ox any individual piece ox property. J r r r j

5. The purchaser of a bond cannot enforce it against any particular piece of property nor can tho owner of any particular piece of property pay the bond and thus discharge his land from the lien. The purchaser of the bond must rely solely upon the annual assessments and collection of those assessments by the public authorities. .

6. The bond expressly provides for the annual levy of a tax to pay the installments of interest due upon tho bond and to pay the bond itself when due. Tho Revised Code of Montana of 1921, § 7232, provides as follows: “Tax or assessment to pay bonds and interest. All bonds and the interest thereon issued hereunder * * ” shall be paid by revenue derived from a special tax or assessment levied as hereinafter provided upon all illo lands included in the district, except upon such lands as have boon included in such district on account of the exchange or substitution of water under the provisions of section 720G) if any there be; and all the lands in tho district at the time said bonds are issued, and all lands subsequently ineluded which are so chargeable under the provisions of this act, shall be and remain Viable to be taxed and assessed for the paymont of said bonds and interest. * * * It shall be the duty of the board of eommissioners of the district, in the order or resolution authorizing and directing the issuance of bonds of the district, mentioned in section 7210, to provide for the annual levy and collection of a special tax or assessment upon all the lands included in the district and subjoot taxation and assossmolJit as aforesaid, gllfgeion^ jn am0nnt to meet the interest on said b(>nds promptly when and as the same aeomcS) and to discbarg,e tbe prineipal there-o£ at tbcir maiurity? or respcetive maturities, «, , * A certified copy of such resolution sñall bo flled wii}l tbo ekrk of the board of eouid;y commissioners of each county in which tho landg of the irrig.ation distóet lie; and tbo special tax or assessment therein provided for sbajj bn ¡eded and co]jeeb;d as hereinafter prcseribod) and when so collected shall, by the county treasurer having custody of the funds 0£ £jie digbc[et, hg piaeed jn a special fund and used solely for the payment of all amounts due or to become due to the United States * * * and for the payment of the interest on and principal of said bonds when due, so long as any of said bonds or the interest coupons ,, , , . . . x , . .. ” , thereto appertaining remain Outstanding and • j v , ,, . „ 65 unpaid. In the event that for any reason any • , , , , . , J special tax or assessment hereinabove pro- „ I . JIT-T T vided tor cannot or shall not be levied and collected in time to meet any interest falling due on any bonds issued hereunder, then the board of commissioners shall have the power and authority, and it shall be their duty, to provide for and pay such interest when duo, either out of any of tho funds in hand in the treasury of the district not otherwise appropriated, or by warrants (which may bear intercst at a rato not to ^ceed six per centum Pcr ammm) drawn against the next district ta* ” assessment levied or to be levied.” (Italles ours-)

It will be noted that the provision that the amounts due on the bonds should be paid from any money in tho treasury of the district is inconsistent with the idea that the bonds are not an obligation of the district. In sections 7251 and 7253 of the Revised Code of Montana the bonds are referred to as an “indebtednoss of the district.” In section 7251 it is said, “provided, however, that this limitation shall not apply to the indebtedness for which bonds have been or may be issued as provided for by law.”

Section 7253, supra, providing for the dissolution of the district, where “no bonded indebtedness has been incurred,” provides if, upon said hearing, the court finds that no bonded indebtedness of the district has been created, and all the expenses of organization and all other indebtedness have been paid,’ e^c-

These statutes recognize the indebtedness as an obligation of the district. The bond issued by the district in pursuance of the statute contained an express promise by the district to pay the amount of the bond; that promise is as follows: “The Judith Basin Ir-ligation District, a municipal corporation of the state of Montana, organized and existing under the laws of the state of Montana, for value received, promises to pay to the bearer the sum of One Thousand Dollars ($1,000.00') in gold coin of the United States.” The bond also provides:

“All of said bonds are issued under the provisions of chapter 146 of the Session Laws of 1909 of the State of Montana and of the acts amendatory thereof, and all of said bonds are secured by a hen m all of the lands included within said Irrigation District, as provided in said chapter and the acts amendatory thereof

“All of the lands included within said Irrigation District are subject to a special tax and assessment for the payment of the interest on, and the principal of, all of said bonds, and said special tax and assessment are declared by the laws of Montana to constitute a first and prior hen on the land against which it is levied, to the same extent and with like force and effect as taxes levied for state and county purposes.

“The Board of Commissioners of said District has duly provided for the annual levy and collection of a special tax and assessment ,, ,, , - • i n j t • upon all the lands included within said Irni • j * j. * , , j. gation District sufficient m amount to meet ?. . , , „ .. , . ,, , the interest on all said bonds promptly when and as the same shah accrue and to discharge ,, the principal amount of all ox said bonds at i • . 3 7 their respective maturities, as required by the laws of Montana.” ■

The coupon attached to the bond contains an express agreement of the irrigation district to pay the bearer of the coupon the face value thereof.

7. The payment of the bonds of earliest maturity does not release any parcel of land from the lien of the bond, and all the lands within the district, according to the terms of the bond and of the statute, are liable for the payment of the unpaid bonds,

g_ yle ^-^g 0f tbe decision by the Supreme Court of Montana in State ex rel. Malott v. Board of County Com’rs, 89 Mont. 37, 296 P. 1, 15, that court was of opinion that jf by reason of the sale of a portion of the lands free and clear of the lien of the bonds, the balance of the land in the district would be compelled to bear the whole burden of the payment of the balance owing for the bonds, that the law requiring this resrdt would be “violative of both the state and Federal Constitutions, in that it amounts to the taking of private property for public use without just compensation.” .See Kadow v. Paul, 274 U. S. 175, 181, 47 S. Ct. 561, 71 L. Ed. 982. This view is not in accord with the most recent decisión of the Supreme Court (Roberts v. Richland Irr. Dist., 289 U. S. 71, 53 S. Ct. 519, 521, 77 L. Ed. 1038) dealing with the distlet “d state of Washington, where said: Norwood v. Baker 172 U. S. 269, 19 S. Ct. 187, 43 L. Ed. 443, and similar cases, has no apP1^10? her\ Appellant’s land will be assessed meet a general obhgation of the corporation and the mere tact that the apportioned burden will exceed estimated beneg£yeg no color to the claim of confiscation, _^g p0in£ed out the eases cited lands may be taxed to pay for local improvements although they receive no actual benefits. Never? ag £be Supreme Court of the state has said, was appellant entitled to the segregation of bis sbare af the corporate obligation. The gtatute -did n0,t eontempiate that assessments agains£ any tract should be limited to payment of its increased value. A general obligation was created and every tract subject thereto.”

This ease was originally argued upon the theory that a determination or the basic question as to whether or not the bonds or an lrrigation district were the general obligation the district or merely a lien upon all the lands m the district was determinative of the appeal, and that if the obligations were general obligations of the district that the order 0f the District Court appealed from should be affirmed. Upon an examination of the questions involved and the legislation of Montana relating thereto, we concluded that before the matter was determined we should ask the attorneys for further briefs and argument bearing particularly upon the statutory law of Montana. These briefs have been filed and the ease has been reargued. We do not deem it necessary to discuss many of the questions raised by us. One of the questions was as to whether or not the statutory law of Montana contemplated that after a deed had been issued to the county for unpaid state, county, and irrigation district taxes it was contemplated that subsequent irrigation district taxes should be levied from year to year pending the sale hv the county of the lands thus acquired. On the argument it is stated that there is no decision of the Supreme Court of Montana upon that subject. In the absence of such decision it would seem that the duty to assess the tax is clearly imposed by section 7232 of the Revised Codes, which authorizes the issuance of irrigation district bonds, and provides that when the bonds are issued provision should be made for the annual levy of the tax. We also suggested that the question of the disposition of the funds derived by the sale of lands deeded'to the county for state, county, and irrigation district taxes suggested by the Supreme Court of Montana in its dictum in the ease of State ex rel. Malott v. Board of County Commissioners, supra, was in conflict with the statutory rule (Rev. Code Mont. 1921, § 2235, subd. 1, as amended by Laws 1927, c. 85, § 3) in relation thereto.

Having determined the basic question in favor of the appellee, for the reasons above stated, it is unnecessary to discuss this matter. Wo are also satisfied with the fact that there are other outstanding' bonds and that these bonds were included in the order directing the sale and further assessment therefore does not impair the power of the court to enforce the rights of the petitioning bondholders. See Freeman on Judgments (5th Ed.) vol. 1, pp. 952, 957, 1098; New Orleans v. Citizens’ Bank, 167 U. S. 371, 17 S. Ct. 905, 42 L. Ed. 202; Gunter v. Atlantic Coast Line R. Co., 200 U. S. 273, 26 S. Ct. 252, 50 L. Ed. 477.

In our request to counsel for further argument we suggested a discussion of whether or not it was an improper interference with the discretion of the Board of Commissioners to direct that the board fix a different market value of the property to he sold by them from that already fixed. We are satisfied that the writ was proper where the market value was fixed by the hoard because of an erroneous interpretation of the law. The market value was fixed by them upon the theory that the land in the hands of a purchaser would not be liable for the outstanding and unpaid bonds. According to the law, as we interpret it, the land would still be subject to the outstanding bonds and the market value should be fixed with that fact in mind as directed by the trial court.

Order affirmed.  