Lincoln County v. Luning

delivered the opinion of the court.

- TJhis is an action on bonds and coupons. Judgment was rendered against, the county and it alleges error. The pri

With regard to the first objection, it may be observed that the. records of this court for the last thirty years are full of suits against counties, and it would seem as though by general consent the jurisdiction of the Federal courts in such suits had become established. But irrespective of this general acquiescence, the jurisdiction of the Circuit courts is beyond question. The Eleventh Amendment limits the jurisdiction only as to suits against a State. It was said by Chief Justice' Marshall, 'in Osborn v. The Bank of the United States, 9 Wheat. 738 , 857, that “ the Eleventh Amendment, which restrains the jurisdiction granted by the Constitution over suits against States, is of necessity limited to those suits in which the State is a party on the record.” •

V"hile that statement was held by this court in the case of In re Ayers, 123 U. S. 443 , to be too narrow, yet by that decision the jurisdiction was limited only in respect to those cases in which the State is a real, if- not a nominal defendant; and while . the county is territorially a part of the State, yet politically it is also a corporation created by and with such powers ás are given to it by the State. In this respect it is a part of the. State only in that remote sense in which any city, town,- or other municipal corporation may be said tp be a part of the State. Metropolitan Railroad Co. v. District of Columbia, 132 U. S. 1 .

■ The constitution'of the State of Nevada explicitly, provides for the liability-of counties to suit. Article eight is entitled “ Municipal and other corporations,” and ts ten' sections contain provisions, some applicable to private and others to both.

With regard to the other objection the case of Cowles v. Mercer County, 7 Wall. 118 , 122; is decisive. In that case the court, by the Chief Justice, expressed its opinion on the very question in these words: “But it was argued that counties in Illinois, by the law of their organization, were exempted from suit elsewhere than in the Circuit courts of the county. And this seems to be the construction given to the statutes concerning counties by the Supreme Court of Illinois. But that court has never decided that a county in Illinois is exempted from liability to suit in national courts. It is unnecessary, therer fore, to consider what would be the effect' of such a decision. It is enough for this case that we find the board of supervisors to be a corporation authorized to contract for the county. The power to contract with citizens of other States implies liability to suit by citizens of' other States, and no statute lirhitation of suability can defeat a jurisdiction given by the Constitution.”

It is further objected that the complaint was defective in not showing that the bonds and coupons had been presented to the county- commissioners and county auditor for allowance and approval, as provided by sections 1950 and 1961-5-6 of the General Statutes of the State. Those sections, referring to claims and accounts, have application only to unliquidated claims and accounts, and do not apply to bonds and coupons. -This question was presented in the case of County of Greene v. Daniel, 102 U. S. 187 , 194, in which the court observed, speaking of bonds and coupons, that “the claim was, to all intents’ and purposes, audited -by the coürt when the bonds were issued. The validity and amount of the liability were then definitely fixed, and warrants on the treasury given, payable at a future day.”

The remaining question arises on the statute of limitations. By the general limitation law of the State, some of the coupons were barred; but there has been this special -legislation in reference to these coupons. The bonds were issued under the funding act. of, 1873. . In 1877 the county was delinquent in its interest, and the legislature passed an act amendatory to the act of 1873. This amendatory act provided for the registering of overdue coupons, and imposed upon-the treasurer'the duty of thereafter paying the coupons as money came into his possession applicable thereto, in the order of their registration. .Statutes of Nevada, 1877,"16’.

The coupons, which by the general limitation law would have been barred, were presented, as they, fell due, to the treasurer for payment, and payment demanded and refused,' because the interest, fund was exhausted. Thereupon the treasurer registered themi as presented, in accordance with the act of 1877, and from, the time of their registration to the commencement of this suit .there was no money m the treasury appli

The cases of Underhill v. Sonora, 17 California, 173, and Freehill v. Chamberlain, 65 California, 603, are in point. In the former case, the' court observes that “ the legislative acts then ' 7 1 ° . recognized the debt and made provision for its payment. This is' enough to withdraw the case -from the operation of the statute; it is equivalent to a trust deed by the State setting apart property'' out of which the money due was to be paid at a given time, if not sooner paid upon a claim acknowledged to be an outstanding debt; and we cannot conceive of any principle of law or justice which would hold the claim to be barred by the statute simply because the creditor-waited after this for his money.” In the other case it was held that “ where a statute provides for the issuing of bonds of a city with interest coupons payable as fast as money should come-into the treasury from spe: cial sources designated by the act, the statute of limitations does not commence to run against the . coupons until the money is received in the treasury in accordance with the terms of the act.”

Both of these decisions were rendered before the act of 1877 was passed, and, being in an adjoining State which has always had close relations with the State of Nevada, may well have induced the passage of that act.

These are all the questions presented. "We see no error in the rulings in the Circuit Court, and its judgment is' therefore

Affirmed.

Mr. II. F. Bartine for plaintiffs in error.

Mr. Abraham Ciarle Freeman for defendants in error.