(dissenting) .-WThere was no effective final judgment of this Court until the mandate was issued October 13, 1938. The judgment then .becoming effective was under the control and jurisdiction of this Court until the end of the then current term and the Court retained the power to vacate or modify it during the remainder of the term.
When the Court is acting or sitting as a body, four or more Justices participating constitute a quorum and affirmative action by a majority of such participating quorum constitutes valid action by the Court.
Buford, J. — On our order filed herein on December 6th, 1938, mandate theretofore issued during the then continuing term was recalled and a rehearing granted. Reargument Iras been heard and additional briefs have been submitted and considered.
So much has been written in opinions heretofore filed March 28th and 29th and October 11th, 1938, that it appears no useful purpose can be served by repeating much which has already been said in the various opinions anent this cause.
The suit in the lower court was by way of bill in chancery seeking injunctive relief agaiirst the levy and assessment of taxes to pay interest and to create a fund to pay principal of bonds. The suit involves three issues of bonds issued by the Town of Belleair, Florida. The first was an issue of $300,000.00 known as Public improvement *759Bonds dated July 1, 1924. The second was an issue of $119,700.00 known as Paving Improvement Bonds dated May 15, 1925. The third was an issue of $700,000.00 in several series dated August 1, 1925, and subsequent dates, respectively.
There is involved the validity of several issues of refunding bonds based on one of the above mentioned issues. Eighty thousand dollars of the $700,000.00 issue of Paving Improvement Bonds were refunded and validated by decree of the circuit court on August 17, 1927. One hundred thousand dollars of the $700,000 issue was refunded and the refund validated by the circuit court on April 20, 1928. Other bonds of that issue were refunded and validated October 4, 1929.
The validation decree as to these latter refunding bonds does not appear in the record but it is alleged that the refunding issue was made and the decree entered validating the same.
As to the $119,700 issue there is a paucity of information in the record but there is not a sufficient showing to warrant a decree holding those bonds to be invalid, especially in view of the provisions of Chapter 10338, Special Acts of 1925, which Act is:
“An Act To Make Valid Certain Municipal Improvement Bonds of the Town of Belleair Heights To Define the Authority of Said Town To Issue Certain Improvement Certificates and To Validate Certain Proceedings in Respect of the Issuance and Sale of Said Bonds.
“AVhereas, the Town of Belleair Heights has a contract with C. R. Scott Company for the improvement and paving of certain streets and sidewalks in said City, and the sáid C. R. Scott Company has agreed to accept as part payment under the said contract Municipal Improvement Bonds of *760said Town, issued under Section 1907 of the Revised General Statutes, based on certificates issued under Section 1906 of the Revised General Statutes,
“Be I,t Enacted by the Legislature of ti-ie State of Florida :
“Section 1. All such bonds heretofore issued or hereafter to be issued in regard to the improvements covered by the said contract are and shall be valid if based upon certificates purporting to be issued under the said Section 1906, notwithstanding any irregularity in the making of the said contract, in the issue of said certificates or in the laying of the assessments in regard to which said certificates are or may be issued; and the said Town is hereby authorized to exercise in addition to its other powers, the powers granted by the said Section 1906 and all certificates purporting to be issued under the said Section 1906 whether heretofore issued or hereafter to be issued are and shall be yalid if issued pursuant to the provisions of the said Section 1906'.
“Section 2. That the authorization, issuance and sale of said bonds to the said C. R. Scott Company in accordance with said contract are hereby ratified, validated and confirmed.
“Section 3. This Act shall become a law upon its passage and approval by the Governor, or upon its becoming a law without such approval.
“Approved May 13, 1925.”
One of the major contentions is that, this bond issue of $119,700.00 was and is void because an inspection of the record show’s that it was when superimposed on the then outstanding $300,000.00 issue, sufficient to make bonds then outstanding in excess of the amount, in which the municipality was at the time authorized to issue bonds. This *761might present a troublesome question, had the $300,000.00 issue been a valid issue or one which could have been made valid and binding, but it will be seen that on thé face of the record the $300,000.00 issue never became an enforceable or binding .obligation. Certainly, one may not say the $300,000.00 bond issue was void, but that it was a binding obligation, which -precluded the municipality from issuingotlier obligations before that one was reduced by payments or discharge, or the prohibitory statute removed by legislative Act.
The validity of the $300,000 bond issue is challenged on a ground not discussed in the first opinion herein filed March 28, 1938.
The Town of Belleair Heights was created by Chapter 9686, Special Acts of 1923. The validity of the Act is not challenged. The Act incorporating Belleair Heights became effective from and after its passage and approval by the Governor and was approved June 6, 1923.
The power and authority of the Municipality to issue and sell bonds was prescribed and limited by Section 44 of the Act which, inter alia, provides:
“The Town of Belleair Heights shall have the right to issue and sell bonds for municipal government improvements; Provided such issue and sale of bonds shall be ratified by a majority of the qualified electors of said Town who are taxpayers and who paid taxes on their own property in the Town of Belleair Heights assessed and levied for the calendar year prior to that in which said election is held and actually voting at an election to be held for that purpose, not to exceed the amount of 15 per cent of the assessed value of the taxable property of said town.”
Section 47 of the Act provides:
“All of the property within the Town of Belleair Heights *762taxable for State and county purposes shall be assessed and listed for the purpose of taxation on the town assessment roll, and railway and railroad companies, including street railway companies, shall be subject to assessment and taxation on all real estate and personal property owned by them within the limits of the corporation in the same manner and at the same ratio and valuation as other property, save and except roadbeds and rolling stock of said railroads, which shall be assessessed by the Comptroller as now provided by law, and it shall be the duty of the tax assessor of said town, between the first Monday in January and the first Monday in June each year to ascertain by diligent inquiry all taxable property, both personal and real estate, in the Town of Belleair Heights and the names of the persons owning the same, and on the first Monday in January of each year to make an assessment of all such taxable property. He shall visit and inspect all real estate, unless acquainted therewith, and the improvements thereon, and fix a valuation on the same and shall require owners of personal property to return and value the same under oath; and in case the owner of personal property neglects and fads to return the same the assessor of taxes shall assess the same, fix a valuation thereon, and any person or persons so neglecting to make return under oath shall not ’ be permitted afterwards to reduce the valuation by such assessor on his personal property for that year; Provided that any error therein may be corrected by the board of commissioners of the Town of Belleair Heights at the time of the equalization by them of the tax assessment of said city. The assessor of taxes is hereby authorized to administer oaths to all persons returning their personal property.”
There was no provision for the levy and assessment of *763taxes for the year 1923. The bond election was held prior to July 1, 1924, and it, therefore, appears that at that time the Town by its charter Act was precluded from issuing-bonds because under the express terms of the charter Act bonds could only be issued, “Provided such issue and sale of bonds shall be ratified by a majority of the qualified electors of said town who are • tax-payers and who paid taxes on their own property in the town of Belleair Heights assessed and levied for the calendar year prior to that in which said election is held and actually voting at an election to be held for that purpose.” The issuing authority being without power to issue bonds, a judicial validating decree could not confer validity. See cases hereinafter cited.
This is true because under the statute the power of the municipality to issue bonds did not accrue or exist prior to January, 1925, and by the terms of the statute the municipality was denied the power until such time as it became possible to hold an election under the terms of the statute. (See 94 U. S. 429; 74 Fed. 535.) The power to issue bonds not having been attained, the bonds were void ab initio. If the power to issue bonds had accrued then the question of whether or not the power had been regularly and lawfully exercised could have been presented in a validating proceeding and, - therefore, a validation decree entered by a court of competent jurisdiction having jurisdiction of the parties and the subject matter under the Constitution and valid statutes would forever put at rest such issues of fact. Stated another way, it may be said, that if such an election as was required could have been held then a validating decree adjudging it to have been held would establish forever that it was held and that question of fact would be thereby concluded. See Board of Public Instruction v. State ex rel. Tanger Investment Co., 121 Fla. 703, 164 Sou. 697.
*764If so happens that the proceeds of this $300,000 issue was used for building a sea wall and making other improvements which were chiefly beneficial to a private corporation.
The Town of Belleair was created succeeding the Town of .Belleair Heights by Chapter 10335, Special Acts of 1925. Sub-section (d) of Section 3 of that Act provides:
“Shall have the power within and without its territorial limits, to construct, condemn, purcha.se, acquire, lease or to maintain, conduct, and operate within and without its corporate limits,, wharves, warehouses, ship-channels, breakwaters, jetties, sea walls, water-works, parks, athletic fields, golf links, drives, lighting plants, gas plants, telephone systems, power plants, transportation systems, graveyards, pest-houses, hospitals and libraries, for the use. of said Town and its inhabitants, and to make a contract of whatever nature in connection therewith, and shall enforce such’ purchase, if necessary, by eminent domain proceedings, ancl shall have the right and power to issue bonds for any of the aforesaid purposes and for refunding any indebtedness, upon the majority vote of all electors actually voting at any bond election, provided that no bond election shall be required for the purposes set forth in Section 24 of this Act, and provided further that no bond election shall be required for the purposes set forth in Section 24 of this Act, and provided further that no elector shall participate in any bond election who is not a freeholder in said Town, and who is not otherwise qualified as a voter therein. Provided also that the maximum amount to which said Town of Belleair may bond shall not exceed twenty-five per cent (25%)’ of its assessed valuation.”
Section 24 of Chapter 10336, Special Acts of 1925, provides :
“The. term ‘local improvements’ as' referred to in Section *7651 of this Act, shall be construed to mean the following improvements, namely:
“(a) Streets, highways, boulevards, avenues, square^, lanes, alleys and parks, or any part thereof, may be opened, reopened, widened, graded, regraded, paved, repaved, surfaced or resurfaced, and curbs and gutters may'be constructed or reconstructed therein, together with the necessary storm sewers, drains and catch basins, necessary to and incident in paving of such highways, boulevards, avenues, squares, lanes, alleys and parks.
“(b) Sanitary sewers, storm sewers and other drains or sewers may be laid or relaid, and constructed or reconstructed in any streets, highway, boulevard, avenue, square, lane, alley or park.
“(c) Side-walks and white-ways may be constructed, reconstructed, widened, altered or changed along any highway, boulevard, avenue, squares, lanes, alleys and park thereof.
“(d) Tiees and shrubbery may be purchased and planted in parkways between property lines and curb.”
The $700,000 bond issue appears to have been promulgated under the provisions of Chapter 10337, Special Acts of 1925, the title of which is:
“An Act Providing a Supplemental, Additional and Alternative Method of Making Local Improvements for the Town of Belleair, a Municipal Corporation, Authorizing and Providing for Special Assessments for the Cost Thereof, and Authorizing the Issuance and Sale of Bonds for Such Municipality.”
Arid Sections 1 to 8, inclusive, which are as follows:
“Section 1. Whenever the Town of Belleair, a municipal corporation existing under the laws of this State hereinafter referred to as the ‘Municipality’ shall have (either *766heretofore or hereafter), by its board of commissioners or other governing authority, hereinafter referred to as the ‘Governing Authority,’ awarded contracts for local improvements, as specifically provided in Section 24 of this Act, and to be made wholly or in part at the cost of the property owners benefited thereby and the payment for which improvements it proposes to provide by levying and assessing and collecting special assessments for any and all of the improvements authorized under Section 24 of this Act, the Town of Belleair is hereby authorized to estimate and determine the cost of the improvements to be raised by special assessments against the property benefited, and may by resolution issue improvement bonds pledging the full faith and 'credit of the municipality to an amount not exceeding 90 per cent of such estimate. Said bonds may be sold but shall not be delivered except as the work progresses. Said bonds may be issued in series or installments from time to time as the governing authority may determine.' Such bonds shall be general obligations of the municipality and if special assessments be not imposed and collected in respect of the improvement in season to pay the principal and interest, the municipality by its governing authority and other officers shall levy and collect on all taxable property in the municipality a tax sufficient to pay such principal and interest as the same respectively become due and payable.
“Sec. 2. Upon the final completion of any contract for a public improvement, and after an assessment of benefits has been confirmed by the governing authority, as hereinafter provided, the governing authority of the municipality may by resolution issue Improvement Bonds pledging the full faith and credit of the Municipality to an amount not exceeding the unpaid assessments, as so confirmed; provided, *767however, that if any bonds have been issued under the preceding section upon an estimate of the cost of the improvement, the bonds issued under this section shall not in the aggregate exceed the amount of the unpaid assessments, •as so confirmed. All special assessments levied and imposed in respect of the improvements shall constitute a fund for the payment of the bonds authorized, by this and the preceding section, and in the event that there be any failure to collect and receive the said special assessments in season to pay the principal and interest of the said bonds, the municipality by its governing authority and other officers shall levy and collect on all of its taxable property in the municipality a tax sufficient to pay such principal and interest as the same respectively become due and payable. All bonds issued under this title, and the preceding section shall be excluded from any limitation of indebtedness prescribed by the Charter of the municipality, by Special Act or by the General Laws.
“Sec. 3. All bonds issued under the two sections immediately preceding shall mature and become payable in not more than ten annual installments, which shall be substantially equal in amount and the last of which shall be payable in not more than ten and one-half years from the date.
“Sec. 4. All bonds issued under this Act shall be in the denomination of One Hundred Dollars or some multiple thereof, and shall bear interest not exceeding six per centum per annum, payable annually, or semi-annually, and both principal and interest shall be payable at such place or places as the governing authority may determine. The form of such bonds shall be fixed by resolution of the governing authority of the municipality, and the said' bonds shall be signed by the mayor or chief executive officer of the *768municipality and the town clerk thereof, under the seal of the municipality. The coupons shall be executed by 'the fac-simile signature of the Town Clerk. The delivery of any bond and coupon so executed at any time thereafter shall be valid, although before the date of delivery the person signing such bonds or coupons shall cease to hold office.
“Sec. 5. Bonds issued hereunder shall have all the qualities of negotiable paper under the law merchant, and shali not be invalid for any irregularity or defect in the proceedings for the issue and sale thereof, and shall be incontestable in the hands of bona fide purchasers or holders thereof for value.
“Sec. 6. Before any bonds of any municipality are issued hereunder, the governing authority shall investigate and determine the legality of the proceeding's. The resolution authorizing the bonds may direct that they shall contain the following recital:
“ ‘It is certified that this bond is authorized by and is issued in conformity with the requirement of the Constitution and statutes of this State.’ Such recital shall be an authorized declaration by the governing authority of the municipality and shall import that there is constitutional and statutory authority for incurring the debts and issuing the bonds; that all the proceedings thereof are regular; that all acts, conditions and things required to exist, happen and be performed precedent to and in the issuance of the bond have existed, happened and been performed in due time, form and manner as required by law; that the amount of the bond, together with all other indebtedness, does not exceed any limit or limits prescribed by the Constitution and Statutes of this State. If any bond be issued containing such recital, it shall be conclusively presumed that said recital construed according to the import hereby' declared is *769true, and neither the municipality nor any taxpayer thereof shall be permitted to question the validity or legality of the obligation in any court, in any action or proceeding.
“Sec. 7. All bonds issued hereunder shall be sold for not less than ninety-five cents and accrued interest to date of delivery and in such a manner as the governing authority shall determine, or as may be provided in any section of the town charter relative to the sale of bonds; provided, however, that nothing contained herein, or any section oí. the town charter, or any other act, shall be construed to mean that any bonds herein provided for must be ratified or submitted to the vote of the electors of the said town provided, further, that all contracts heretofore made and entered into for the sale of bonds based on special assessments are hereby validated and confirmed and the municipality' is hereby authorized to proceed in the carrying out of said contracts and said bonds may be issued under the provisions of this Act without respect to the provisions of any other Act or law or section of the town charter relative to the manner of sale and issuance of bonds of said municipality.
“Sec. 8. This Act shall, without reference to any other Act of the Legislature of Florida, be full authority for the issuance and sale of the bonds in this Act authorized, and shall be construed as an additional and alternative method for financing of the improvements herein referred to. No ordinance, resolution or proceeding in respect of the issuance of said bonds hereunder shall be necessary, except such as is required by this Act. No publication of any resolution, ordinance or proceeding relating to the issuance of the said bonds shall be required, except such as is required by this Act.”
And Section 24 is:
“The term ‘local improvements’ as referred to in Section *7701 of this Act, shall be construed to mean the following improvement, namely:
“(a) Streets, highways, boulevards, avenues, squares, lanes, alleys and parks or any part thereof, may be opened, re-opened, widened, graded, re-graded, paved, re-paved, surfaced- or re-surfaced, and curbs and gutters may be constructed or reconstructed therein, together with the necessary storm sewers, drains and catch basins necessary to and incident in paving of such highways, boulevards, avenues, squares, lanes, alleys and parks.
“(b) Sanitary sewers, storm sewers and other drains or sewers may be laid or re-laid and constructed or reconstructed in any streets, highways, boulevard, avenue, square, lane, alley or park,
“(c) Sidewalks and white-ways may be constructed, reconstructed, widened, altered or changed along any highway, boulevard, avenue, ^squares, lanes, alleys and park thereof, and the planting of trees and other ornamental shrubbery in parkways, between lot line and street curbs,”
This Act is the most important legislation involved in this latter bond issue and yet we fail to find it given - any prominence in any brief filed here, or in oral argument.
The resolution by the city commission contemplating and authorizing the issuance of the $700,000 bond issue was sufficient to show compliance with the provisions of the Act last quoted and the charter provision, supra.
The bonds of that issue recited:
“Know all Men by these Presents: That the Town of .Belleair, a municipal corporation in the County of Pinellas, State of Florida, for value received, acknowledges itself indebted and promises to pay to bearer, on the 1st day of August, A. D. 1931, One Thousand Dollars, with interest thereon from date hereof until paid, at the rate of *771six (6) per cent per annum, payable semi-annually, on the 1st day of February and the 1st day of August each year, on presentation and surrender of the annexed coupons hereto attached as they severally become due. Both principal and interest payable in gold coin of the United States of America of current weight and fineness, at the Banking House of Harriman National Bank, of the City of New York, and the said Town of Belleair is hereby held and firmly bound and its full faith, credit and resources are hereby irrevocably pledged for the payment of the principal and interest hereof at maturity.
“This bond is one of a series of six (6) series of bonds aggregating $700,000.00 issued by the Town of Belleair for the purpose of securing funds with which to pay contracts for street and sidewalk paving and street improvements and is issued in conformity with and under the provisions of Senate Bill No. 655, Laws of Florida 1925, and pursuant to resolutions of said Town duly passed, approved and adopted as required by law, and it is certified that this bond is authorized by and issued in conformity with the requirements of the Constitution and statutes of this State.
“It Is Hereby Certified and Recited that all acts, conditions and things required by the Constitution and laws of the State of Florida and by the Charter of said Town to exist, happen and be performed precedent to and in the issuance of this bond, do exist, have happened and been performed in regular and due form, time and manner as required by law, and that the amount of this bond, together with all other indebtedness of said Town, does not exceed any limitation imposed by either the Constitution or statutes of Florida, or by the Charter of said Town.”
The decree of validation, inter alia, held and decreed:
“This cause coming on to be heard on the 11th day of *772July, A. D. 1925, before the court in the City of Clearwater, Florida, pursuant to a prior order of this court made herein upon the 19th day of June, A. D. 1925, and upon the filing of the petition of the Town of Belleair, which petition was duly sworn to by Ed A. Plaley, Acting Mayor of Belleair, and the answer of the State of Florida through E. P. Wilson, State Attorney for the Sixth Judicial Circuit of the State of Florida, and there being no person appearing pursuant to the notice published by the clerk of this court;
“And it appearing to the court and the court so finds that the clerk of this court did publish in the Clearwater Evening Sun, a newspaper published in the County of Pinellas, a notice addressed to the citizens and taxpayers of the said Town of Belleair, as required by law., which said notice was published once a week for three consecutive weeks, the first of said publications being on the 19th day of June A. D. 1925, and which said notice was in proper form and fully complied with the requirements of law;
“And it further appearing to the court and the court so finding that all things, conditions and requirements necessary and requisite to the issuance of. said bonds have been, have happened and been performed as set forth in said petition, and that all the requirements of law in every respect have been fully met, fulfilled and complied' with by the officers charged by law with the duties and requirements incident to the issuance of said bonds;
“And it further appearing to the court that the purpose for which said bonds were issued, ■ to-wit: for providing funds with which to pay contracts for street and sidewalk paving and street improvements to the amount of $700,-000.00 is a purpose authorized by law for the issuance of said bonds and that said bonds should be validated and confirmed:
*773“It Is, Therefore,' ''Ordered, Adjudged and Decreed by the court that the issue of bonds to the amount of $700,000 for providing funds for the payment of contracts for street and sidewalk paving and street improvement in the Town of Belleaif, to be issued in six series and -to be dated and to mature as follows, to-wit:
“Series A for $100,000.00, to be dated August 1, 1925, and $10,000 of said bonds to mature on the first day of August in each of the years 1926 to 1935, inclusive.
“Series B for $100,000.00 to be dated September 1, 1925, and $10,000 of said bonds to mature on the 1st day of September in each of the years 1926 to 1935, inclusive.
“Series C for $100,000 00 to be dated October 1, 1925, and $10,000 of said bonds to mature on the first day of October in each of the years 1926 to 1935, inclusive.
“Series D for $100,000.00 to be dated November 1, 1925, and $10,000 of said bonds to mature on the 1st day of November in each of the yeai-s 1926 to 1935, inclusive.
“Series E for $100,000.00 to be dated December 1, Í925, and $10,000 of said bonds to mature on the 1st day of December in each of the years 1926 to 1935, inclusive.
“Series F for $200,000.00 to be dated January 1, 1926, and $20,000.00 of said bonds to mature on the 1st day of January in each year of the years 1927 to 1936, inclusive.
“To draw interest at the rate of six percent (6°/0) per annum, payable semi-annually, to be in denominations of One Thousand Dollars ($1,000.00) each, both principal and interest payable in the City, and State of New York and as otherwise set out in said petition and as authorized by a resolution of the Town Commissioner's of the Town of Belleair, on the 18th day of June, A. D. 1925, be and they are hereby validated and confirmed and that henceforth said bonds shall never be questioned in any Court in this State, *774and that upon the issuance of said bonds there shall be stamped or printed on each of said bonds the following endorsement :
“'Validated and confirmed by decree of the Circuit Court of the Sixth Judicial Circuit of the State of Florida in and for Pinellas County; dated the 11th day of July, A. D. 1925,
" ‘Clerk of the Circuit Court of the Sixth Judicial Circuit of the State of Florida, in and for Pinellas County.’
“And which said endorsement shall be signed by the Clerk of said court, and the official seal of said Clerk thereunto attached.
“Done and Ordered in the City of Clearwater, Florida, this 11th day of July, A. D. 1925.
“M. A. McMullen, Judge.”
There was no appeal from this decree and it became a final adjudication of the validity of the bonds involved.
The conclusions which we have herein stated are in line with those stated, and are amply supported by the authorities cited by Mr. Justice AViixtfíeld, in the opinion prepared by him and filed in this cause on March 28, 1938, wherein he stated:
“The Constitution of Florida contains the following: ‘No tax shall be levied for the benefit of any chartered company of the State, nor for paying interest on any bonds issued by such chartered companies, or by counties or by corporations, for the above mentioned purposes.’ Sec. 7, Art. IX, Florida Constitution.
“The organic section forbids taxation for the benefit of any chartered company of the State or for. paying interest *775on any bonds issued by any chartered company of the State or by counties or by corporations for the benefit of any chartered company of this State.
“The evil sought to be avoided by the organic section is taxation for the benefit of any chartered company of this State as is illustrated in the issue of bonds by counties and cities to aid in the construction of railroads. See Columbia County v. King, 13 Fla. 451; Canover v. Baker County, 18 Fla. 512; County of Jefferson v. Lewis, 20 Fla. 980; Jefferson County v. Hawkins, 23 Fla. 223, 2 So. 362; Sec. 22, Chap. 610, Internal Improvement Fund Act of 1855, approved jan. 6, 1855; Hawkins v. Mitchell, 34 Fla. 405, 16 So. 311; Wilson v. Mitchell, 43 Fla. 107, 30 So. 703; Trustees Internal Improvement Fund v. Bailey, 10 Fla. 112.
“Where county or municipal or district bonds are legally issued for public improvements of public facilities, the mere fact that corporations or individuals are benefited by such public improvements or facilities along with or in common with the public generally, does not violate Section 7 of Article IX of the Constitution. Hunter v. Owens, 80 Fla. 812, 86 So. 839; West v. Town of Lake Placid, 97 Fla. 127, 120 So. 361; Whitney v. Hillsborough County, 99 Fla. 628. 127 So. 486.
“Decrees validating municipal bonds duly rendered under the statute are conclusive of the validity of the bonds validated unless there was no legal authority to issue the bonds, or unless the statute or the bonds or the record of the proceedings under which the bonds were issued, show that the bonds violate some command or prohibition of the Constitution relating to the bonds. Commands and prohibitions of the Constitution control over legislative or judicial validations of bonds. Validations cannot supply an entire absence of authority to issue municipal bonds, or cure a *776patent violation of a command or prohibition of the Constitution. Weinberger v. Bd. Pub. Inst., 93 Fla. 470, text page 492, 112 So. 253. * * *”
At least the greatest part of the bonds have been validated by judicial decrees under the jurisdiction conferred by the statute, all of ‘the taxpayers and citizens of the * * * municipality.’ being, by notice published under this statute, made parties defendant to the validating proceedings. No taxpayer asserted the invalidity of the bonds in the validation suits, and the decrees of validation are conclusive against the ‘municipality * * * and against all taxpayers and citizens thereof.’ Sec. 5109 (3299) C. G. L. No violation of a command or prohibition, of the Constitution in issuing the bonds is shown by the statute or by the bonds or by the record for issuing the bonds. Such a violation of organic law, if so shown, would be binding -notice to purchasers of the bonds. See 44 C. J. 1243. The bonds state the statutory authority under which they were issued and recite a 'compliance therewith, together with a pledge of full faith and credit of the town for the payment of the bonds. Recitals and covenants contained in the bonds are binding on the taxpayers, and no violation of the Constitution in issuing the bonds appears by the bonds or by the issuing or validating proceedings. Sparks v. Ewing, 120 Fla. 520, 163 So. 112; City of Hialeah v. United States, 87 Fed. (2d) 953; State ex rel. Conn v. Henderson, 130 Fla. 288, 177 So. 539; Hillsborough County v. Keefe, 82 Fed. (2d) 127; State ex rel. Rogers v. Walthal, et al., 125 Fla. 423, 170 So. 115. See also Validating Act, Chapter 10338, Acts of 1925; 44 C. J. 1254; 104 Fed. 473, 486; 17 Fla. 174; 125 Fla. 423, 170 So. 115, 123 Fed. 1.
' ‘Tí the bonds or the proceeds of bond sales zvere benig illegally used ‘for (he benefit of any chartered company’ by *777making improvements primarily for the benefit of property owned by chartered companies in building sea-walls and other improvements in front of or on such private property, as is in effect alleged, such illegal action must have been obvious to citizens and tax-payers of the town and any taxpayer could have invoked judicial decrees enjoining such asserted illegal use of the bonds or the funds; and not having done so, all have thereby waived their rights to challenge the validity of a tax to pay the bonds upon the stated grounds resting in pais, when, as here, no illegal use of the bonds or their proceeds for the benefit of any chartered company, as asserted, appears by the bonds or by the record of the proceedings for their issue, or by the law under which the bonds were issued. See Abell v. Town of Boynton, 95 Fla. 984, 117 So. 507; State ex rel. v. Broward County Port Authority, 118 Fla. 42, 151 So. 416, 718; 158 So. 62. See Perry v. Town of Panama City, 67 Fla. 285, 65 So. 6; State ex rel. v. Brandon, 92 Fla. 793, 110 So. 127; 44 C. J. 1253.
“In Thompson v. Town of Frostproof, 89 Fla. 92, 103 So. 118, the bonds had not been issued, and it was held that no ‘bonds can legally be issued to improve streets where no streets in law exist.’ See City of Fort Myers v. State, 95 Fla. 704, 117 So. 97.
“In the Weinberger case, 93 Fla. 470, 112 So. 253, the issue of bonds by a special tax school district was enjoined because the bonds showed on their face that an express command of the Constitution as to the terms of the bonds would be disregarded and violated if the bonds were issued. The record proceedings for issuing the bonds and the terms of the bonds were in conflict with the express commands of Section 17, Article XII of the Constitution then in force. See Leonard v. Franklin, 84 Fla. 402, 93 So. 688; Barrow *778v. Moffett, 95 Fla. 111, 116 So. 71; State v. Bd. Publ. Inst. Indian River County, 98 Fla. 1152, 125 So. 357; Bd. Pub. Inst. v. Union School Furniture Co., 100 Fla. 326, 129 So. 824. In State ex rel. Bours v. L’Engle, 40 Fla. 392, 24 So. 539, a statute authorizing general county bonds to be issued for public free school purposes in the county was adjudged to be in violation of the limitations contained in Article XII of the Constitution and, therefore, void. No bonds were issued.
“In the Nuveen case, Article XIL of the Constitution impliedly forbade the issue of Municipal bonds for the support and maintenance of public free schools, which rendered the bonds ineffectual, even in the hands of purchasers for full value, because they were issued by the municipality for public free school purposes in violation of the Constitution as shown by the record and by the bonds, and not by matters de hors the record arising after the bonds were issued and sold. The statute attempting to authorize the municipality to issue bonds for public free school purposes, on its face, violated Article XII of the Constitution. Munroe v. Reeves, 71 Fla. 612, 71 So. 922; State ex rel. Nuveen v. Greer, 88 Fla. 249, 102 So. 739, 37 A. L. R. 1298; Nuveen v. City of Quincy, 115 Fla. 510, 156 So. 153. See also Brown v. City of Lakeland, 61 Fla. 508, 54 So. 716. See Parkersburg v. Brown, 106 U. S. 487; Johnson v. Bd. Pub. Inst., 81 Fla. 503, 88 So. 308; Bd. Pub. Inst. v. Union School Furn. Co., 100 Fla. 326, 129 So. 824.
“ ‘Municipal bonds issued without competent legal authority or for a purpose that is forbidden by controlling law are invalid even in the hands of bona fide holders for value. And recitals of compliance with law contained in municipal bonds cannot confer authority not legally given to issue the bonds. 44 C. J. 1248; State ex rel. Nuveen v. Greer, 88 Fla. *779249, 102 So. 739; 37 A. L. R. 1298; Holland v. State, 15 Fla. 455; State ex rel. Bours v. L’Engle, 40 Fla. 392, 24 So. 539; Brown v. City of Lakeland, 61 Fla. 508, 54 So. 716; Munroe v. Reeves, 71 Fla. 612, 71 So. 922; Weinberger v. Board of Public Instruction, 93 Fla. 470, 112 So. 253; State v. Hillsborough County, 113 Fla. 345, 151 So. 712; First Natl. Bank of Key West v. Board of Public Instruction, 107 Fla. 525, 145 So. 203; O’Brien v. Wheelock, 184 U. S. 450, 22 S. Ct. 345, 46 L. Ed. 636; Sutliff v. Lake County Comm’rs., 147 U. S. 230, 13 S. Ct. 318, 37 L. Ed. 145.’ See Barnett v. Bennison, 145 U. S. 135, 12 S. Ct. 819.
“ ‘Where there is adequate legal authority for the issue and sale of municipal bonds, and the bonds are issued for an authorized municipal .purpose, mere administrative or ministerial irregularities in issuing the bonds may not render the bonds invalid in the hands of a bona fide holder, particularly when the bonds contain a statement that the laws have been fully complied with in issuing the bonds. See Crawford v. State ex rel., 110 Fla. 301, 149 So. 340; State v. Rodes (Fla.), 151 So. 298; Jefferson County v. B. C. Lewis & Sons, 20 Fla. 980; Town of Aurora v. Gates, 125 C. C. A. 329, 208 F. 101, L. R. A. 1915A, 910, and notes. An illegal use of the proceeds of bonds legally issued and sold to bona fide holders for value may not affect the validity of the bonds. 44 C. J. 1247.’ See also West Plains Tp. v. Sage, 69 Fed. 943; State ex rel. v. Broward County Port Authority, 118 Fla. 42, text page 670, 151 So. 416, 718; 158 So. 62; 104 Fed. 473, text 486.
“ ‘While the proceeds of bonds sold by the municipality must be applied to the purposes for which the bonds were issued and sold, the purchaser of such bonds is not. required to look to the application of the proceeds, and hence it is no defense that the proceeds of the bonds were improperly *780applied or used for an unauthorized purpose.’ McQuillin: Municipal Corporations (2d Ed.), Vol. 6, Sec. 2516. See Hightower v. Raleigh, 105 N. C. 569, 65 S. E. 279; Jones v. Camden, 44 S. C. 319, 23 S. E. 141, 51 Am. St. Rep. 819; Clifton Forge v. Allegheny Bank, 92 Va. 283, 23 S. E. 284.
“This suit is to enjoin taxation to pay municipal bonds, based upon matters not of record when the bonds were is-' sued: i. e., the use of the bonds or the bond proceeds in violation of Sec. 7, Article IX of the Constitution. The bonds were issued and sold years ago upon a record of proceedings showing the bonds were to be issued for authorized municipal purposes, and at least a large part of the bonds were validated by decree of the circuit court under the jurisdiction conferred by statute; and nothing in the record of the proceedings or in the bonds indicated that the bonds were to be used in violation of Section 7, Article IX of the Constitution, which organic section does not require bona fide purchasers of municipal bonds to see to the proper application of the bond proceeds. See Hightower v. Raleigh, 150 N. C. 569, 85 S. E. 279.
“The statute under which the decrees were rendered validating the bonds, provides by published notice for appropriate parties, including the taxpayers and citizens of the municipality, with adequate notice of hearing; and the statute'also provides that ‘the decree of the circuit court validating and confirming the issuance of the bonds (if not reversed on appeal) * * * shall be forever conclusive as to the validity of said bonds * * * against the * * * ’ municipality * * * and against all taxpayers and citizens thereof; and the validity of said bonds * * * shall never be called in question in airy court in this State.’ Sec. 5109 (3299) C. G. L. See Little River Bk. & Tr. Co. v. Johnson, 105 Fla. 212, 141 Sou. 141; Abell v. Town of Boynton, 95 Fla. *781984, 117 So. 507; Steen v. Bd. of Pub. Inst., 80 Fla. 146, 85 So. 684; Bd. Pub. Inst. v. State ex rel. Tanger Investment Co., 121 Fla. 703, 164 So. 697. See notes 37 A. L. R. 1310; 86 A. L. R. 1057.
“In City of Bradenton v. State, 88 Fla. 381, 102 So. 556, 36 A. L. R. 1297, the circuit court denied a validating decree upon averments in the answer by a taxpayer tending to show that the proposed municipal bonds if issued would violate Section 7 of Article IX of the Constitution; and s.ucli decree denying validation was affirmed by this Court.
‘“Any taxpayer could have contested the validating proceedings covering bonds referred to in this case, if the bonds were tó be used in violation of Section 7, Article IX, Constitution. See Juvenal v. Dixon, 99 Fla. 936, 128 So. 27. Or illegal use of the bond proceeds could have been enjoined. See City of Tampa v. Salomonson, 35 Fla. 446, 17 So. 581; Suburban Inv. Co. v. Hyde, 61 Fla. 809, 55 So. 76; Brown v. City of Lakeland, 61 Fla. 508, 54 So. 716.
“Section 7, Article IX of the Constitution of Florida does not forbid the issue or the payment of bonds of a municipality for authorized municipal purposes, or require bona fide purchasers of such bonds to see to the proper application of the bond proceeds; and when the taxpayers of the municipality acquiesce in the validation of such bonds and in the use of the bond proceeds, taxation to pay the bonds held bona fide should not be enjoined on the ground that the bond proceeds were used for the benefit of chartered companies or individuals, unless it appears by the statute authorizing the bonds, or by the bonds, or by the record proceedings for issuing or validating the bonds, that the bonds or the proceeds thereof were to be used for the benefit of chartered companies or otherwise in violation of such section 7, Article IX.
*782“No taxpayer resisted, as authorized by the statute, the validation oí the bonds on the ground that Section 7, Article IX, would be violated by the.issue of the bonds as was done in City of Bradenton v. State, 88 Fla. 381, 102 So. 556, 36 A. L. R. 1297; the issue of the bonds was not enjoined as in Weinberger v. Board of Public Instruction, 93 Fla. 470, 112 So. 253, and in Brown v. City of Lakeland, 61 Fla. 508, 54 So. 716; the bonds were validated under the statute and on their face showed they were issued in compliance with law, and they do not show that they were issued in violation of the Constitution as did the bonds, held invalid in the. Nuveen and Weinberger cases. Illegal use of the bond proceeds could have been enjoined.”
From the conclusions reached, it follows that insofar as the decree appealed from affects the proposed tax to be levied and assessed to produce funds with which to pay the principal and interest on the $300,000.00 bond issue, supra, it is affirmed; but, in all other respects, it is reversed and the cause is remanded with directions that a decree be forthwith entered not inconsistent with the views herein expressed.
So ordered.
Whitfield and Brown, J. J., concur. Thomas, J., concurs specially. Terrell, C. J., and Chapman, J., dissent.