On Motion for Rehearing.
The first part of our opinion was devoted to the power of the commissioners’ court *1046with respect to fixing the time of payment of debt and issuing interest-bearing warrants to evidence the same, and not to the power of the court to incur indebtedness. Appellants construe our opinion as virtually holding that the power “to audit and settle accounts and direct their payment” gave unlimited power to incur indebtedness. We trust the opinion is not subject to that construction, for we intended to clearly separate the discussion of the two questions, one relating to the power of the court, in cases where it was legally authorized to incur indebtedness, to evidence the indebtedness by interest-bearing warrants maturing throughout a long series of years, and the other, the power of the court to incur indebtedness for road improvements.
The cases of McClane v. San Patricio County and Davis v. Burney were relied upon as pioneer cases on the subject of warrants, and, together with the other cases cited in the first part of our opinion, were believed sufficient to establish the proposition that, if the court had the power to incur indebtedness for road improvements to the extent of the contract with White, it had the power to issue the warrants' involved in this suit: We do not regard appellants’ discussion of the McClane v. San Patricio County Case as accurately stating the issues or effect of the decision, but regard it unnecessary to further discuss the first question above stated, except in so far as it is necessarily involved in the discussion of the courthouse cases, which we believe have a material bearing on both questions.
Appellants state that they think the court had power to issue warrants to build courthouses and jails before the passage of the act of 1881 (Acts 17th Leg. c. 9), authorizing issuance of bonds, but that they had no such power thereafter, ánd state that- no court ever so held prior to the decision in the Stratton Case. In the case of -Cresswell v. Roberts County, 27 S. W. 737, in which a writ of error was denied, the court held that the bond legislation was intended to confer on the court an additional power, and not to take away, by substitution or otherwise, that which already existed. The case did not involve the validity of warrants, but it is significant that the court construed the original bond statutes just as they have been construed in the Stratton Case. Before passing to the Stratton Case, appellants discuss the case of Allen v. Abernethy, 151 S. W. 348, decided by this court, and indulge in the following vigorous criticism:
“That any court should ever hold that, after an election has been held to determine whether or not bonds shall be issued to build a courthouse, and their issuance defeated, the commissioners’ court could, within one month thereafter, issue warrants for the very same purpose, and in a greater amount, is to us almost unbelievable, and that such is the law is to us unthinkable.”
The theory thus advanced by appellants is without merit. It amounts to a contention that, even though the bond laws do not take any power from the commissioners’ court to build a courthouse and issue warrants in payment, still if the court submits to the voters a bond proposition, and the same is voted down, then the court has no power to build a courthouse and issue warrants to pay for same. The vote of the people did not change the rules of law applicable to the power of the court, and if the cases of Stratton v. Commissioners’ Court and Cowan v. Dupree, 139 S. W. 887, are correctly decided, and the Supreme Court refused writs of error in both, then the decision in the case of Allen v. Abernethy is undoubtedly correct.
Appellants take issue with us in regard to what we said concerning the purpose for which the bond laws were passed, and contend that they were passed “for the express purpose of curbing the power which has arisen under the decisions of courts.” As the courts had held that the commissioners’ court had no power to issue bonds unless expressly authorized by statutes, it is evident that when the statutes authorizing the issuance of bonds were passed, the purpose was not to curb any power which had arisen under decisions of the courts. When the subsequent laws were passed which regulated and restricted the issuance of bonds, the purpose might be said to have been to curb the commissioners’ court in the exercise of the power given by the previous statutes, but if there was any intention to curb any powers other than the one to issue bonds, the Legislature wholly failed to express such intention. In fact, appellants’ contention, as stated further on, is that the original statutes authorizing the issuance of bonds by implication restrict the commissioners’ court to the use of bonds to derive the necessary funds to build courthouses, when there is not sufficient cash on hand, and thus impliedly prohibit the commissioners’ court from making a contract unless a bond issue has been voted. They say that:
“Where the statute directs the performance of certain things in a particular manner it forbids by implication every other manner of performance.”
That principle has no application to our bond statutes. They are obviously intended to supply a power held not to exist, and not to forbid the court from exercising powers then existing. The Legislature did not provide that the question whether a contract for a courthouste should be entered into should be submitted to the voters, as well as whether bonds should issue, as it did in article 2253 with reference to certain bridges.
In their attack on the Stratton Oase appellants undertake to show that the case of Mitchell County v. Bank, 91 Tex. 361, 43 S. W. 880, cited in the Stratton Case, instead of being authority supporting the decision, is really authority adverse thereto. Mr. Justice Brown, who wrote the opinion of the *1047court in tlie Mitchell v. Bank Case, was a member of the court when it refused the application for writs of error m the Stratton and Dupree Oases, and was in a better position than any one else to determine whether the decisions in said cases were in accord with the decisions of the Supreme Court. 'The particular portion of the opinion in the Mitchell v. Bank Case relied on by appellants is the following sentence:
“It is quite too plain for argument that if the laws of 1881 and 1884, or similar laws, had never been passed, Mitchell county would have had no authority under the Constitution to contract the debts represented by the bonds, nor to levy a tax for the payment of the interest and sinking fund on such debt; the power to do so could be derived from the Legislature only.”
When the sentence is read in connection with its context, and it is borne in mind that the court was discussing bonds, payable to bearer, issued for the purpose of raising money, it is evident that by the words, “contract the debts represented by the bonds,” the court meant that in the absence of the Bond statutes the county could not borrow money and issue negotiable instruments to evidence the debt thus incurred, and that it had no reference to a debt incurred by making a contract with some one to erect a courthouse.
We are convinced that the courthouse cases were correctly decided. They establish the following propositions: (1) That the power to provide courthouses includes the power to go in debt for the purpose, not exceeding the constitutional limit. (2) That interest-bearing warrants, issued pursuant to the contract with the contractor, evidencing the debt thus incurred, even though payable during a long series of years, are valid. (3) That the laws authorizing the issuance of bonds are not a limitation upon the power of the commissioners’ court to incur an indebtedness for the purpose of building a courthouse, but confer power to raise funds by borrowing money on the credit of the county and issuing negotiable paper to evidence the debt thus created.
We pass now to the question of the power of the commissioners’ court with reference to roads. Appellants say in their motion:
“The commissioners’ courts were authorized to improve public roads by contract, but the amount which they could spend was limited and properly so. They had the right to use any revenue on hand for the purpose, but even then they were required to let the contract to the lowest responsible bidder, and require a bond. Not so in the case of warrants. If they used cash, the law required that the contract should be let to the lowest bidder and a bond required, while in this case the court holds that, if they were building roads on a credit, they could dispense with such senseless formality.”
This statement is not supported by any reference to the statute, and the brief of appellants contains no reference to any statute which might be construed as so providing except article 6966, R. S. 1911, which is part of a law applying only to counties which adopt it by appointing road superintendents in accordance with its provisions. That law has never been adopted in Du-val county, and has no application to this ease. • If there is a similar statute which applies to the state generally, it has not been pointed out, and we have not found it. The references thereto do not serve to aid in deciding the question at issue, but, on the contrary, tend to confuse.
[10] The statutes which do apply to this case have been referred to in our original opinion. As appellants have failed to point out others, we may assume that we have considered those which are material. We have pointed out the constitutional provision which prohibits the incurring of debts beyond the boundaries marked out by the taxing power, and appellants admit that such provision has been complied with. There is no statute which states that commissioners’ courts cannot go in debt to build roads, or which makes further restrictions than the one made in the Constitution, and there is no statute which expressly authorizes the court to incur debts for such purpose. There are only the statutes which make it the duty of the court to establish roads and which authorize the court to improve roads by the use of road hands or by contract. The statutes authorizing the use of road hands cannot be held to affect or limit the powers given to improve roads by contract. There is, as stated, no statute expressly limiting contracts to funds on hand, or funds to be derived during the current year. There is no statute which by implication creates such a limit, unless it be statutes which provide a fund. Such statutes contain no statement from which such limit can be implied, and therefore, if deducible, it must be based on the mere creation of the road and bridge fund.
[11,12] Can it be held that because the Legislature has provided means for procuring a road fund, it impliedly prohibited the commissioners’ court from going in debt, that is, contracting for improvements in excess of the amount of money to be derived for road purposes during the current year? If so, then it must be held broadly that the commissioners’ court has no power to contract debts, for the law authorizes the collection of funds to be applied in carrying out all the powers of the court, the exercise of which involves the expenditure of money. If it can be held that there is no power to incur debts, the decisions in the courthouse cases are wrong, and it should be held that courthouses must be built with cash on hand, and the taxes to be collected during the current year, or else by money derived from a bond issue. We are unable to see any sufficient ground for holding that a different rule applies with reference to incurring debts for roads than for courthouses. We do not believe the courts can go into the question of the necessity for making the improvements without invading *1048the discretion Vested in the commissioners’ courts; and therefore no distinction between the courthouse eases and this case can be predicated upon a theory that there may be a greater necessity for the exercise of the power as to courthouses than as to roads.
[13] In the argument it is contended, as a reason for holding the instruments issued by Duval county to be bonds, that the county, after having recited'that the work had been done, could not make the defense that it had not; and it would be immaterial to the holder of the instruments whether or not the work had been done if the warrants recited that it had. In other words, the theory is that the commissioners’ court made the warrants incontestable on the theory of estoppel, and therefore they became Just as good as bonds, and therefore should be held to be bonds. The case of Nolan County v. (State, 83 Tex. 183, 17 S. W. 823, is relied on. That was a case relating to recitals in bonds. We call attention to Mr. Dillon’s discussion of warrants in sections 856 and 857, in fifth edition of his work on Miunicipal Corporations. The order of the court for the issuance of warrants contains, expressly or impliedly, a finding that the work has been done for which the warrants are issued. If this judicial determination is insufficient to protect a purchaser of warrants, it is inconceivable that a recital that the work has been done, made in the warrant, would enlarge his rights.
We see no reason for changing our conclusion that the instruments issued are warrants.
The motion for rehearing is overruled.