The opinion
MORGAN, J.,
dissenting. I do not think that the ease at bar is governed by the decision of the case of the State vs. the North Louisiana and Texas Railroad Company, 25 An. p. 65. I do not find from an attentive perusal of the opinion therein pronounced that the constitutionality of the act No. 108 of the acts of 1868 was therein put at issue or passed upon. The court said that “the defense rests solely upon the act No. 97 of 1872.” The court also said: “ This is a controversy between the State, which issued the bonds, and the railroad company for whose benefit they were Issued, and the holders of the bonds and their rights are not before us. Nor is there any claim before us to enforce the payment of any of said bonds.”
The allegation in the petition is that the bonds which relators wish to have funded are good and valid obligations of the State, issued in accordance with legislative authority and in compliance with prescribed conditions, and that they were bought by the present holders in open market, and for a good and valid consideration.
.. The answer denies generally, pleads that the act No. 108 of the acts of 1868 is unconstitutional, and calls for strict proof of the allegations contained in the petition.
The issue joined then was—
*123 First — That the obligations are valid obligations of the State; and
Second — That relators bought them in open market, before maturity, and for a good and valid consideration.
Relators held the .affirmative of this issue, and they were bound to establish it. They have not, in my opinion, done so. I find no evidence in the record to show when they bought the bonds, or how, or that they gave any consideration for them. Failing in this, I think their suit Should bo dismissed.
Rehearing refused.