(dissenting).
Aside from the defenses of laches, limitations, election of remedies, and no lien where there is no debt, I think there was a failure to trace the money of appellant into the school building until it had become so intermingled with the property of others as to render identification impossible and effort at restoration inequitable. The city owned the lot before the bond issue; the county contributed $8,000. The Supreme Court of Florida has held that the bonds are void because issued in violation of the Constitution of the state. It has further held that the debt is barred by the statute of limitations.
The taxpayers and patrons of the school district are the ones who will suffer if the city loses its lot and the county its money. They are the beneficiaries intended to be protected by state constitutional provisions restricting the borrowing powers of cities. We must enforce the Constitution of the state as construed by its court of last resort, provided it does not contravene any provision of the Federal Constitution. That the bond issue was void and the debt is barred have been finally adjudicated. It is equally certain that there can be no lien without a debt and no trust without a res. The res must be identifiable and in a form susceptible of reclamation without impairing the rights of others. The effect of the opinion of the court is to make appellant a tenant in common of the school property, but it draws back from the logic of the decision and denies any return thereon for over twenty years. The county board holds the property under an eighty-eight-year lease.
This case is different from Chapman v. Board of County Com’rs of Douglas County, 107 U.S. 348, 2 S.Ct. 62, 27 L.Ed. 378, in which the res was traceable directly into the possession of the county, and was easily identified, being land which it acquired by deed from the plaintiff. Furthermore, the county was authorized to acquire the land and its contract was held illegal solely because it undertook to pay for the same in an unauthorized manner. In the case at bar, the city of Quincy had and has no pow*182er to expend money for the purpose of public education. 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.
This case is apposite to City of Litchfield v. Ballou, 114 U.S. 190, 5 S.Ct. 820, 822, 29 L.Ed. 132, in which funds acquired by a bond issue, .void because in excess of a constitutional limitation on indebtedness, had been used in the erection of a water works plant on lands already owned by the city. The court held that inasmuch as the city was not liable on its express contract, as evidenced by the bonds, it could not be held liable for the same debt on an implied contract ; that the constitutional inhibition was as “binding in a court of chancery as a court of law”; that “equity will no more raise a resulting trust in favor of the bondholders than the law will raise an implied assumpsit against a public policy so strongly declared.” Continuing, the court said:
“If the complainants are after the money they let the city have, they must clearly identify the money or the fund, or other property which represents that money, in such a manner that it can be reclaimed and delivered without taking other property with it, or injuring other persons or interfering with others’ rights.”
Finally, when the appellant here was before the Supreme Court of Florida in Nuveen v. City of Quincy, 115 Fla. 510, 156 So. 153, 158, that court said:
“In this case there was no authorized purchase of property or sale of bonds by the city and no misapplication of the funds of the plaintiff. There was an intentional purchase of city bonds, the possible inherent or latent constitutional or fundamental infirmities of which bonds were in law conclusively presumed to be known to all parties, the bonds not having been adjudged to be valid under the Constitution; and the subsequent adjudication of their illegality does not operate to raise a trust out of the transaction in favor of the party who has paid for the bonds he intendecfto buy, when the city cannot pay the bonds because forbidden to do so by the paramount law. * * *
“The consideration that should the bonds be adjudged to be illegal and void, the city may legally return the money it received for the bonds and used for a city purpose, does not create a trust against the city and in favor of those who bought city bonds which were issued and bought in good faith,
but which in law are legally unauthorized and void because issued in violation of the Constitution, though the illegality was not known until the validity of the bonds was duly put in issue and adjudicated; all parties being in law held to know that an adjudication of an issue of validity or invalidity is a legal condition on which all municipal bonds are issued.”
I think the decision of the District Court should be affirmed.