The State, on the petition of the Attorney General, (having injoined the Auditor and Treasurer from issuing warrants for ¡the payment of interest on, and from paying quite a list of the obligations of the State, and prayed to have the appropriations therefor and the said indebtedness declared null, the New Orleans, Mobile and 'Texas Railroad Company intervened in the suit and moved to dissolve the injunction, so far as it applied to the bonds of the State issued to ¡said company.
The grounds of the injunction, in this respect, are that the appropriation for the payment of the coupons of said bonds is a disguised ¡donation of the funds of the State to a private corporation; that the *347«Grovernor had no authority to subscribe for the stock of said company, •and the act 95 of 1871, by virtue of which the said bonds were issued, •attempts to create a debt exceeding $100,000 without providing adequate means for its payment, as required by article 111 .of the State ■Constitution, and also in excess of the constitutional limitation to the ;State indebtedness.
The injunction was dissolved as to the intervenor, and the other parties appealed.
It is contended, on behalf of appellee, and we think correctly, that 4;he State can not sue to annul the bonds in question without first tendering back the stock, which it is admitted has been received by the State in exchange for the bonds. There is not even an allegation of such tender, which, it is suggested, the Legislature alone is competent to make or authorize.
Judgment affirmed.
Wyly, J.I was not present at the consultation at which this case was decided, and, therefore, I took no part in this decision.