On Rehearing.
• The opinion of the Court was delivered by
Manning, J.The bonds offered for funding by the plaintiff aro signed by Governor Hébert, by the Auditor, Treasurer, and Secretary of State. The genuineness of none of these signatui’es is denied, or in-any manner questioned. The form of the bond is literally copied from the Act of 1853. In the absence even of suggestion to the contrary, we must assume that bonds, signed nearly thirty years ago by the Governor and other State officers, were executed and issued in virtue of a power conferred by law, and pursuant to its requirements. Hamlin vs. Bd. Liq. 30 Ann. 447.
In remanding the case wé required proof that the State subscribed for the stock of the Railroad Company, and that the bonds were issued in payment of that subscription. We are now satisfied this was error. It is virtually requiring an impossibility, since at this interval with the derangements that have occurred in it, such testimony is not accessible, but if it was at hand, it is raising an issue outside of the pleadings, and requiring proof the production of which the defendant waived.
The question raised by the answer is the alleged confusion, consequent upon the State buying up these bonds after they had been issued, and the alleged illegal resale of them under the Act of 1872. That Act has been declared unconstitutional quoad the bonds belonging to the Free School fund, (Durant’s case, 29 Ann. 77) but the proof in this *265record is complete that the plaintiff’s bonds never formed a part of that fund, and iu Sun Ins. Co. case, affirming Durant’s, three of the eleven bonds then offered were found not to have belonged to that fund, but to have been sold under the Act of 1872, in both features like the bonds now offered, and the Court ordered them funded. Sun Ins. Co. vs. Bd. Liq. 31 Ann. 175.
Of the bonds sold under the Act of 1872, over a million dollars in amount belonged to the school fund, the others to the fund for the redemption of the State debt. The bonds of the plaintiff were in this latter class. Many years after they had been issued and been put on the market, the State bought them with the fund she liad created for the redemption for her debt, and they were in possession of her officers Avhen sold again under the Act of 1872. She would not have bought invalid bonds, or bonds that had not been primarily issued in strict conformity to law, or that were otherwise tainted. Her own act in thus purchasing them for her own purposes stamps the original issue of them with the marks of conformity to law, constitutionality, and valid consideration.
It is therefore manifest that the inquiry as to the legality and validity of these bonds, and others in comimili cam, directed to be made by the supplemental funding Act of 1875, refers to the sale of them and reissue under the Act of 1872, and it is so treated in the pleadings and in the briefs on both sides.
Confusion did not ensue on the State’s purchase of them prior to 1872, or if it did, the State cannot avail herself of the plea since she held them out to the world as her obligations for a second sale. The. constitutionality of the Act is attacked because its title does not indicate the creation of a debt. The debt had been already created in the shape of “ State warrants and certificates of indebtedness,” and the title includes the creation of “a fund for the payment” of them. Another objection is that the General Assembly was prohibited from contracting a debt exceeding a hundred thousand dollars without providing adequate means of payment in the same law. No new debt was contracted by the Act of 1872, but means were provided b,y it for the conversion of a debt already existing into another—the substitution of one kind of obligations to another, a change in the instrument evidencing the debt. With the policy or impolicy of that legislation we have nothing to do. We have been often compelled to recognise and enforce legislation that did not commend itself to our judgment, but Ave should no more trench upon the legislative department of the government than we would permit it to intrude into our sphere.
As was said in Hamlin’s case supra, the question which alone interests *266the State and which the supplementary funding Act directed to be determined contradictorily with the Board of Liquidation, is whether the bond presented for funding is a valid obligation of the State, and as such entitled to be funded. The bonds of the plaintiff conform to the requirements of that Act and should be funded. Therefore,
It is ordered and decreed that our former judgment be set aside, and that the judgment of the lower court is affirmed with costs.