(dissenting).— The case is now before us on rehearing. Dor former opinion, see 109 N. W. 794. Upon the original hearing counsel for appellee frankly conceded that the board had no authority to issue the bonds, and that, save for the doctrine of estoppel, the bonds were illegal and void. In the petition for rehearing the claim was made for the first time that the board had authority to issue them, and that they are payable from taxes levied upon property outside of the city of Ottumwa. Counsel for appellee just as frankly concede this change of front as they did the principles involved upon the original hearing. They are now relying upon the validity of the bonds, where, as upon the original hearing, they conceded their invalidity, and insisted that no taxes could be levied upon property within the city for the payment theréof. They now insist that the bonds are and were valid, but that taxes for the payment thereof should be levied upon property without the limits of the city of Ottumwa. Having presented their case upon one theory, and having obtained an adverse decision thereon, they should not on rehearing be permitted to change their premises, and insist upon a decision based upon an entirely distinct and contrary position. There must be an end to all litigation, and counsel are not now contending that the conclusion from the admitted premises upon the former submission is incorrect. Their insistence now is that they were wrong in their premises, and they ask us to change the conclusion accordingly. That this is not the purpose of a *252rehearing see the following among other cases which are closely in point: Hintrager v. Hennessy, 46 Iowa, 604; Mann v. Railroad, 46 Iowa, 643. I do not think appellees have a right to present a new case upon rehearing.
Aside from this, I do not believe there was any authority in our statutes prior to Acts 30th General Assembly chapter 16,"for boards of supervisors to issue long-time negotiable bonds for the purpose of funding an indebtedness incurred for the building or repair of bridges outside the limits of a first-class city, save as it might fund any purely county indebtedness. Prior to the act in question there was certainly no statute expressly giving the power, and without power expressly given municipalities cannot issue such a form of indebtedness. This is the general rule established by the great weight of authority and by an unbroken line of decisions from this court. More than this we have the legislative construction following from the adoption of the act of the Thirtieth General Assembly before referred to; The warrants which were refunded did not represent county indebtedness; but, if they did, then the bonds issued therefor must be paid out of the bond tax, and not some other levy. Nowhere is there any statute authorizing a bond tax upon a part of the property within a county save as found in the act of the Thirtieth General Assembly, which was passed after this cause of action arose. The bonds themselves did not state that they were to be paid out of a fund derived from a levy upon a part of the property within the county. On the contrary, the law expressly provided that they should be paid from a bond tax levy which was to be upon all the property within the county. Code, section 406 et seq. So that there was no authority to issue the bonds, nor was there any authority whatever to levy a tax upon a part of the taxable property within the county for the payment of these bonds. Under the provisions of section 406 of the Code the board of supervisors had express authority to levy a tax upon all the property within the county to pay the principal *253and interest on outstanding bonds issued in conformity with the provision of section 403 hitherto mentioned; the amount realized from such levies being known as the “ bond fund ” to be used for the payment of bonds and interest coupons, and for no other purpose. If the board failed to make the levy, provision is made for collection through the executive council by a state tax. Code, section 408. If the bonds were issued by authority of law, or if the county issuing them is estopped from denying want of authority, which in effect amounts to the same thing as if authority were granted in the first place, we think it clear that the board of supervisors had the right, and that it was its duty, under section 406 of the Code, to levy a tax upon all the taxable property in the county for the payment of interest and principal of the bonds. The case is different from one where the debtors are jointly and severally and personally liable in this, that the bondholder cannot sue the individual members of the community. He must secure his money through the tax levy either voluntarily or involuntarily made. The board having authority to make a voluntary levy to pay these bonds and the interest upon them, and having made a levy with which to pay a part thereof, some of the parties liable therefor cannot, in an action to which the bondholder is not a party, by injunction against the collecting agents, destroy the bondholder’s right to have this tax collected and paid over to it. But it is said that, as those persons living outside the city limits were alone responsible for the bridge warrants, they and they alone should pay these bonds. The fallacy of this argument as applied to this case lies in the fact that the bondholders in this case never were creditors until they purchased the bonds. They never held any of the bridge warrants, and their rights are upon the bonds, and upon these alone. The bondholders stand in the position of holding county bonds issued by authority of law, and they are entitled to the statutory rights and remedies for the enforcement of the same. In other words, they are entitled *254to the tax already levied to pay the amount due on these bonds, and are entitled to have further and future levies made to take up all the obligations of the county held by them. I do not see how they can be deprived of their rights to have taxes levied to pay these obligations, which, so far as the county is concerned, are as valid as if they had been executed with express statutory authority. They were made for, and on behalf of, the entire county, and not for a fraction thereof. If this were not true, the bonds would not be valid, for, at the time they were issued, the board had no authority to issue bonds obligatory upon but a part of the inhabitants. Even now there seems to be no authority to levy taxes upon but part of the taxable property in the county to pay county bonds so issued as to bind all the inhabitants, or at least all the property therein. There seems to be no authority to levy taxes save as provided by law, although it may he true that a court, by mandamus or other special remedy, might require the levy of taxes to pay a judgment against the county. But here there seems to be no reason, if the bonds are valid, or are such as that the entire county is estopped from asserting their invalidity, why the levy should not be ordered against all the taxable property in the county.
But it is argued that the taxpayers in the city have had no benefit from the bonds, and that to compel them to pay either principal or interest would amount to a taking of their property for a local purpose in which they were not interested. If the bonds are valid, then they were issued for a public purpose. County bridges are undoubtedly matters in which the entire public is interested, although the particular individual may never have occasion to use them or any of them. For administrative purposes the county is sometimes, as in this case, divided into taxing districts, but the unit of taxation in these matters, generally speaking, is the county. The Legislature has the undoubted right to establish taxing districts, and, as a rule, its discretion in *255this regard will not he interfered with. This inquiry is, however, collateral to the main question in the case, for the liability here is not upon bridge warrants, but upon county bonds, issued with authority, or in such a way as to be as binding upon the entire county, as if they had been issued with authority. The obligation which the bondholder has is an obligation of the entire county, and is to be collected as sueh obligations generally are, that is to say, by a levy upon all the taxable property in the county, or by following the provisions of section 408 of the Code. The tax when so levied will undoubtedly be for a public purpose, and the taxpayers within the city limits are not paying bridge warrants, but valid and enforceable obligations of the county. Whatever rights these parties may have as between themselves after they have contributed to the payment of obligations upon which each and all are liable, we need not nor can we now determine. That matter must of necessity be left until it is presented in a proper manner. There is no merit in the contention that the bondholder, had he been a party, might have consented to the decree in this case. It might, of course, forego all its right, and cancel its evidences of indebtedness. But we are not justified in assuming that it would waive or forfeit any of its legal rights. And injunction such as is sought in this case would so complicate matters that it should not be granted. If plaintiffs may thus escape the payment of taxes already levied, it is difficult to see how an adjudgment can be made which would protect the bondholder, as there is no authority of law for levying a tax upon part of the property of a county for the payment of county bonds, except under chapter 16, Acts 30th General Assembly, the board of supervisors would doubtless be unable to make any levy for the payment of these county bonds. None of the numerous cases cited by appellee’s counsel run counter to the views above expressed. Green v. Harrison County, 61 Iowa, 311, was a personal injury case, and is in no way in point, and the same may be *256said of Dashner v. Mills County, 88 Iowa, 401; Mills County Bank v. Mills County, 67 Iowa, 697, was an action upon two county warrants, one expressly payable “ out of the Watkins ditch fund,” and the other “ out of the ditch fund.” A demurrer to the petition was sustained by the trial court, and the order was reversed upon appeal to this court. It is said in that case that these warrants were payable out of a special fund to be created out of an assessment against the owners of the land benefited by the construction of the ditches. It was further said that, as there was no privity between the holder of the warrants and the taxpayers liable to pay for the improvement, he could not maintain an action against them, but was entitled to judgment against the county, and to the enforcement of the payment by the levy of a tax in obedience to the requirements of the statute. We quote the following from that case: “ We do not determine that plaintiff can by mandamus compel the county treasurer to pay the warrants from the general funds of the county. The law contemplates that the owners of the property benefited by the ditch must pay the costs of its construction, and, if the plaintiff obtains judgment upon the warrants, the method of raising means for its payment is plainly pointed out by statute.” The case now before us is very different from that. There is a difference as to parties, the holder of the warrants being the party plaintiff in that case. Again, the warrants in that case were payable out of a particular fund, and the statute provided for the creation of that fund. Moreover there was no holding that in the event of failure to raise that fund the county would not be liable upon the warrants. Indeed we have held that when a city or other municipality fails to do its duty in the making of special assessments to meet an indebtedness, the city itself becomes liable personally, and judgment may be obtained against it. Ft. Dodge Electrie L. & P. Co. v. City of Ft. Dodge, 115 Iowa, 568, and cases cited.
The liability in this case is upon bonds, and there is *257no statutory or other authority for a special levy to meet the obligations imposed. In all the eases cited by appellee, ■while there may have been a liability upon the part of the municipality, that liability was expressly payable out of a particular fund which the corporation was expressly authorized to create. But that is not the case here. The constitutional questions suggested by appellee do not seem to be in the case. In so far as they are collaterally involved, we have disposed of them in what has heretofore been said. The bonds are valid in. the hands of innocent holders, and they are valid as to the entire county. They are not payable, nor may they be made payable, out of a particular fund, but must be paid out of the bond fund authorized by section 406 of the Code. Appellee’s suggestion that the case is the same as if two separate counties were interested is not true, and, if adopted, would lead to a fallacious conclusion. No one could act for two separate counties, and there could not be an estoppel against them, no matter who should assume to act on their behalf. If there were any one who could so act, we would have a parallel case, and, if that were true, we. doubt not that the taxable property of both counties would be liable. But we need not deal with supposed cases, for the facts here are agreed to, and the sole question is one of law. As supporting our views upon the question of taxing districts and of the public purpose for which the bonds were issued, see Kelly v. Pittsburgh, 104 U. S. 78 (26 L. Ed. 659) ; Stale v. Laheside Land Co., 71 Minn. 283 (73 N. W. 970); Butler v. City of Muscatine, 11 Iowa, 433; Fulton v. City, 17 Iowa, 404; Maltby v. Tautges, 50 Minn. 248 (52 N. W. 858). The segregation of the city from the county was not for the purpose of paying bonded indebtedness, but for the purpose of levying and collecting taxes for bridges within their respective territorial jurisdictions. As to bonds the taxing district is coextensive with the county.
The whole matter resolves itself down to these ultimate questions: (1) May a county issue long-time negotiable *258bonds to refund an indebtedness of a part of the county? (2) If it may do so, can it levy a tax upon a part of the property of the county and satisfy its obligations? and (3) Is there any authority to levy a bond tax upon a part of the propeidy of the county ? After the refunding of the indebtedness into bonds there is no statutory method for paying these bonds save by a bond tax upon all the property of the county. The original warrants are merged into the bonds, and neither the bonds nor the law which is in effect written into the bonds authorize the levy of a tax upon part of the property of the county for the satisfaction of these bonds. The taxes are no longer bridge taxes, but taxes to satisfy bonds issued by the county. And these bonds must be paid out of the bond fund authorized by section 406 of the Code, and in no other way. Does any one suppose that the executive council could authorize a bond tax upon a part of the property of a county under section 408 of the Code ? If so, I do not know where the authority for it is to be found, and yet that is the result of the majority opinion. It must be remembered that the holders of the indebtedness are bondholders. They never held any of the warrants which were refunded. They paid their money for these bonds upon the strength of sections 406 and 408 of the Code, and are entitled to the proceeds of the levy already made, and such as shall be made in the future. The whole trouble in the case may be solved by remembering that the statute segregating the bridges in a city from those in the country in the same county was passed long after these bonds issued and bond tax statutes were enacted. Originally there was and could be no question about the correctness of my view. The indebtedness was a county one, no matter where the bridges were located, and bonds issued to take up warrants were to be paid out of a bond fund resulting from a tax upon the entire property within the county. Thereafter bridges within the cities of the first class were segregated from bridges without such cities, and levies were provided for *259each. But no change was made in the statutes with reference to bond issues or bond levies until the Thirtieth General Assembly passed the act before mentioned. The board of supervisors was authorized to levy taxes for bridge funds both without and within cities of the first class, but could levy only one kind of bond tax, and that was to be upon all the property within the county. Section 406, the only one authorizing a levy for bond purposes, expressly says that it shall be upon the taxable property of the county. This means, of course, wherever located within the county. In the event the board does not do this, the executive council may and is required to do so. See section 408. It is well settled that no tax can be levied without authority and that the taxing power must be exercised according to the law as it is written, and not upon some supposed equitable bases. Chicago R. R. v. Phillips, 111 Iowa, 377. The taxes in question are bond taxes which are authorized to be levied, and they must be upon all the taxable property within the county. Such is the law as written, and such is equity as between all the parties. If there be any duties or rights as between these litigants, they must be worked out in some other manner than through such a proceeding as this.
I believe the decree should be reversed.