municipal charter is a voluntary assumption of these duties, the perform ance of them is compulsory. Hence, the ruling of some of the courts that no indebtedness should be regarded as within these prohibitions unless voluntarily assumed must either be modified or the municipality left free to incur unlimited obligations, provided they fairly relate to the discharge of municipal duties. Perhaps a fair distinction may be drawn between a liability imposed upon a municipality by law, and which it has neither the means of avoiding nor the discretion of postponing, and liability arising from the performance of public duties of a discretionary character and which it may lawfully leave undone until the means of doing them have been provided. Hence the same court determined that an indebtedness incurred for the improvement of a county courthouse in excess of the rev. enues provided for the year in which such improvements were made was invalid: Brooks v. Earl, 87 Mo. 246; while indebtedness arising from services performed by the sheriff as jailer in keeping, boarding, clothing, and taking to court prisoners committed to the jail of the county was valid and enforceable: Potter v. Douglas County, 87 Mo. 240. It will be observed respecting the case last cited that neither the municipality nor the creditor had any discretion in the matter, nor any power to avoid the creation of the debt otherwise than by a flagrant disregard of official duty, and that the question whether the liability should or should not be incurred was not one which could have been submitted to the electors of the municipality for their decision. These considerations might justify an exception from the operation of these prohibitions of the current expenses of the municipality which it must incur, whether it or its officers desire to do so or not: Tucker v. Raleigh, 75 N. C. 267; Dwyer v. Brenham, 65 Tex. 526; Barnard v. Knox County, 37 Fed. Rep. 563. On the other hand, to admit this exception is to defeat the object of the prohibitions, which was to compel municipalities either to do business on a cash basis, or to secure the approval of the electors before resorting to transactions on credit, and the overwhelming weight of authority now is, that the fact that the indebtedness is of a compulsory character does not except it from the prohibitions, other than in those instances where the liability arises out of a tort. In the case of Lake County v. Rollins, 130 U. S. 662, from the opinion in which we have already quoted at length, the liabilities sought to be enforced were warrants "issued for ordinary county expenses, such as witnesses, and jurors' fees, election costs, charges for the board of prisoners, county treasurers' commissions and the like," all of which were compulsory liabilities. In referring to the character of the supposed indebtedness, the court said: "Neither can we assent to the position of the court below that there is, as to this case, a difference between indebtedness incurred by contracts of the county and that form of debt denominated 'compulsory obligations.' The compulsion was imposed by the legislature of the state, even if it can be said correctly that the compulsion was to incur debt; and the legislature could no more impose it than the county could voluntarily assume it, as against the disability of a constitutional prohibition. Nor does the fact that the constitution provided for certain county officers, and authorized, the legislature to fix their compensation and that of other officials, affect the question. There is no necessary inability to give both of the provisions their exact and literal fulfillment." The supreme court of Missouri, influenced by the decision last cited, in effect overruled the prior case of Potter v. Douglas County, 87 Mo. 240, and announced as its final conclusion that no distinction should be made between debts which were com

pulsory and those which were not: Barnard v. Knox County, 105 Mo. 382; and this is the view sustained by Prince v. City of Quincy, 105 Ill. 138; 44 Am. Rep. 785; City of Council Bluffs v. Stewart, 51 Iowa, 385; Prince v. Quincy, 128 Ill. 443; Sackett v. New Albany, 88 Ind. 473; 45 Am. Rep. 467; People v. May, 9 Col. 80; Hebard v. Ashland County, 55 Wis. 145; Spilman v. Parkersburg, 35 W. Va. 605; Schwartz v. Wilson, 75 Cal. 502; San Fran cisco Gaslight Co. v. Brickwedel, 62 Cal. 641; Terrell v. Dessaint, 71 Tex. 770. In Indiana it has been decided that the employment of an attorney to contest existing indebtedness, the amount of which equalled or exceeded the whole sum which the municipality was authorized to incur, might result in an addition to the valid indebtedness, for the reason that the creation of indebtedness for the purpose of contesting pre-existing claims of indebted. ness could not have been within the objects of the constitutional prohibi. tion: Logansport v. Dykeman, 116 Ind. 15.

If the Salary of a Public Officer is based upon a contract between him and the municipality, there is no doubt that it must be taken into con. sideration in computing the indebtedness of the city, and that the contract for its payment cannot be enforced if the municipality has already incurred all the liabilities which it is authorized to incur under the constitution: Norton v. East St. Louis, 36 Ill. App. 171. Salaries fixed by law and made payable out of the municipal funds are to be regarded as compulsory indebt. edness, and share the same fate as other compulsory obligations. If the constitutional prohibition is directed only against the action of the municipality and leaves the legislature free to act, it may create public offices and require payment to the incumbents thereof to be made by the municipality, and such payment may be compelled though there is no money in the treas ury derived from the revenues of the fiscal year during which the liability accrued. The constitution of California declares that "No county, city, town, township, board of education, or school district shall incur any in debtedness or liability in any manner or for any purpose exceeding in any year the income and revenue provided for it for such year without the assent of two-thirds of the qualified voters," etc. After the adoption of this constitution the legislature of the state created the office of registrar of voters for the city and county of San Francisco, and provided the salaries to be paid to that officer and his subordinates out of the municipal funds. A demand having been made for the payment of his salary due for the month of June, 1893, the treasurer of the city and county refused to make such payment, upon the ground that, while there were funds in the treasury out of which it could be paid, yet there was no money in such funds which had been derived from the revenues of the city for the fiscal year ending June 30, 1893. The supreme court of the state, in delivering an opinion directing a writ of mandate to issue to compel such payments, said: "It is quite apparent, however, that this clause of the constitution refers only to an indebtedness or liability which one of the municipal bodies mentioned has itself incurred-that is, an indebtedness which the municipality has con. tracted, or a liability resulting in whole or in part from some act or con. duct of such municipality. Such is the plain meaning of the language used. The clear intent expressed in the said clause was to limit and restrict the power of the municipality as to any indebtedness or liability which it has discretion to incur or not to incur. But the stated salary of a public officer fixed by statute is a matter of which the municipality has no control, and with respect to which it has no discretion; and the payment of his salary is ■ liability established by the legislature at the date of the creation of the

office. It, therefore, is not an indebtedness or liability incurred by the municipality within the meaning of said clause of the constitution": Lewis v. Widbur, 99 Cal. 412.

Claims Payable Out of Special Funds.—A claim or demand, though payable out of the city treasury, is not to be regarded as indebtedness within the meaning of the prohibitions here under consideration, unless it is such that its nonpayment might justify either a judgment against the city or an assertion of a lien or charge against its property or assets, or a resort to gen. eral taxation to realize the funds with which to make payment. We do not here refer to a mere provision prohibiting the incurring of indebtedness or borrowing money for general purposes which, it is clear, does not extend to the inhibition of contracts for special matters, such, for instance, as the construction of sidewalks and like objects: Hitchcock v. Galveston, 96 U. S. 341; Galveston v. Heard, 54 Tex. 420. Though a municipality is prohibited from incurring any indebtedness beyond a specified amount, or from creating any debt which is not to be payable out of the funds of the fiscal year in which it is incurred, still a claim, though valid, is not to be considered as indebtedness unless it is one which the city is under either a legal, moral, or equitable obligation to pay out of the revenues derived from general taxation Thus the expenses of constructing and improving streets and other public highways is often made chargeable upon lands lying adjacent thereto, or upon some special district not including the whole of the lands within the municipality, and, theoretically at least, including none but lands specially benefited by the proposed improvement. In these cases no general mu nicipal liability arises. Bonds and other written evidence of indebtedness may be issued and may upon their face purport to be payable by the munic ipality, but as long as it appears from the bonds themselves, or from the statutes authorizing their issue, and which must be deemed a part thereof, whether formally referred to therein or not, that the holder is entitled to payment only out of the special funds to be raised from the assessments of the abutting property or the other property within the special assess ment district, the liability is not a municipal liability in any proper sense of that term, and does not constitute an indebtedness within the meaning of the constitutional prohibition: Quill v. Indianapolis, 124 Ind. 292; Strieb v. Cox, 111 Ind. 299; Davis v. Des Moines, 71 Iowa, 500; Baker v. Seattle, 2 Wash. 576; Austin v. Seattle, 2 Wash. 673. The fact that the purpose of an indebtedness is special does not withdraw it from the effect of the prohibition if the means of payment is a resort to general taxation, or if the general revenues or the property of the city may be treated as answerable therefor. Hence an indebtedness incurred for the purpose of constructing an electric-light plant or water-works, or otherwise for supplying the municipality with light or water, where no means of payment are provided except out of the public general revenues, is invalid, if taken in connection with the pre-existing indebtedness it is in excess of the constitutional limit: State v. Atlantic City, 49 N. J. L. 558; Spilman v. Parkersburg, 35 W. Va. 605; Beard v. City of Hopkinsville, 95 Ky. 239; ante, p. 222.

Warrants Against Existing Funds. -Indebtedness is also to be excluded from the computation if the municipality has on hand funds applicable to its payment. The holders of warrants payable out of such funds may through negligence, inattention, or some other cause delay presenting them. This does not require them to be regarded in a computation of the city in debtedness, if the funds out of which they are payable are adequate to such payment: Dively v. Cedar Falls, 27 Iowa, 227.

Indebtedness Against Anticipated Revenues.-There are doubtless cases in which warrants may be issued or liabilities incurred when there is no money in the municipal treasury at the time out of which payment can be made, and in which the city is properly to be regarded as not creating or incurring an indebtedness as that term is employed in the prohibitions here in ques tion. Upon this subject it must be remembered that there is a material difference between different constitutional limitations. Some of them prohibit all indebtedness beyond a specified sum, while others only prohibit in. debtedness beyond the revenues of the year in which the indebtedness is incurred. In the latter class of cases there seems no reason to doubt that warrants or other claims may properly be drawn or created in advance of the actual receipt of the revenues, at least when it subsequently appears that the revenues in fact received are sufficient to discharge the obligations in controversy. Even in prohibitions of the former class, the incurring of indebtedness may, under some circumstances, be justified though the moneys are not yet collected out of which payment must be made. The constitution of Illinois declares that no municipal corporation shall be allowed to incur indebtedness in any manner or for any purpose to an amount, includ ing existing indebtedness, exceeding in the aggregate five per cent of the value of the taxable property therein, to be ascertained by the last assess ment for state and county taxes. Under this prohibition it was decided that the collection of revenues could be anticipated by warrants drawn in favor of the creditors of the city, provided the circumstances were such that the creditors might properly be regarded as accepting such warrants and the anticipated funds as a complete discharge of their claims, and as waiving all other resort against the municipality. After reviewing some pre-existing decisions the court said: "The principle, as we understand, is, there is, in such case, no debt, because one thing is simply given and accepted in exchange for another. When the appropriation is made and the warrant or order on the treasury for its payment is issued and accepted the transaction is closed on the part of the corporation-leaving no future obli gation, either absolute or contingent, upon it whereby its debt may be increased. But until a tax is levied there is nothing in existence which can be exchanged; and an obligation to levy a tax in the future, for the benefit of a particular individual, necessarily implies the existence of a present debt in favor of the individual against the corporation, which he is lawfully entitled to have paid by the levy. If the making of the appropriation and issuing and accepting a warrant for its payment do not have the effect of relieving the corporation of all liability, or, in other words, if it incurs any liability thereby, it must manifestly incur, either absolutely or contingently, a debt. Where a warrant or order, payable from a specified appropriation of a tax levied, but not yet collected, is accepted in exchange for services rendered or to be rendered, or for materials furnished or to be furnished, so that there is, in fact, but an exchange of one thing for another, the duty remains for the proper officers to collect and pay over the tax in accordance with the appropriation; but obviously, for any failure in that regard, the remedy must be against the officers, and not against the corpora tion, for otherwise a contingent debt would in this way be incurred by the corporation": City of Springfield v. Edwards, 84 Ill. 633; Law v. People, 87 Ill. 385. The result of these decisions and others in the same state is that the creation of indebtedness in anticipation of an appropriation made and of taxes levied cannot be sustained, except when the funds out of which the payment is to be made occupy exactly the same position as special assessments to which

alone the creditors are entitled to look, and, if in the event of the failure to realize from the contemplated sources sufficient to discharge the indebtedness, there would still remain a liability on the part of the municipality, then the indebtedness, if in excess of the constitutional limit, cannot be sustained: East St. Louis v. Flannigan, 26 Ill. App. 449; Fuller v. Chicago, 89 Ill. 282; East St. Louis v. East St. Louis etc. Co., 98 Ill. 415; 38 Am. Rep. 97; Howell ▼. City of Peoria, 90 Ill. 104. These decisions are as favorable to the claims of the creditors as those in the other states controlled by similar constitu. tional limitations. Thus, in Iowa, uncollected taxes are not to be consid ered in determining whether an indebtedness exceeds the constitutional limits: City of Council Bluffs v. Stewart, 51 Iowa, 385; and in Wisconsin, though bonds are expected to be paid out of certain improvement assessments, they must be considered in estimating municipal indebtedness, unless it is clear that in the event of the failure of such assessments to discharge the liability, no claim can be asserted against the city: Fowler v. Superior, 85 Wis. 411.

The Time When a Demand is to be Paid may sometimes be material in estimating whether it must be computed as part of the existing indebted ness of the municipality, and to make it payable at some future day may entitle it to be disregarded in such computation. Interest is a very usual accompaniment of public, as well as of private, indebtedness, and a munic ipality authorized to become indebted to a specified amount may well be presumed to be thereby given authority to execute coupons for the payment of the interest to accrue upon such indebtedness, and therefore, in deter. mining whether a municipality has become indebted to the constitutional limit, such coupons are not to be included in the computation: Jones v. Hurlburt, 13 Neb. 125; Gibbons v. Mobile etc. Ry., 36 Ala. 410.

To render a statute or ordinance void as creating a prohibited indebted. ness, it must appear that such indebtedness must necessarily arise without any further action on the part of the municipality. Hence, if it merely be given the privilege at some future time to purchase certain property, but is not placed under obligation to do so, the purchase price is not to be esti mated as a part of the municipal indebtedness until the city has, by its election, obligated itself to make the purchase: French v. Burlington, 42 Iowa, 614; Burlington W. Co. v. Woodward, 49 Iowa, 58.

It is not unusual for a city to enter into a contract for the furnishing of light or water for a designated number of years, to pay therefor either a specified sum each year, or a sum to be ascertained by a computation based upon the number of hydrants used, or lights furnished in each succeeding year. In these cases the question is, Shall the aggregate sum which will become due on the contract be treated as existing indebtedness, or only the sum which falls due each year? If, when the contract is entered into, the municipality is indebted up to the constitutional limit, so that there can be no lawful addition to the existing indebtedness, the whole contract is void, and no recovery whatever can be had thereunder: Quill v. Indianapolis, 124 Ind. 292; Prince v. Quincy, 105 Ill. 138; 44 Am. Rep. 785; Prince v. Quincy, 105 III. 216; 128 Ill. 443; State v. Atlantic City, 49 N. J. L. 558; Erie's Appeal, 91 Pa. St. 398; Burlington W. Co. v. Woodward, 49 Iowa, 58; Spilman v. Parkersburg, 35 W. Va. 605. But suppose the constitutional limit of indebtedness not to have been reached when the liability was assumed, and that the sum to be paid each year may be added to the pre-existing indebtedness without passing beyond the limit, but that the aggregate sum added to such indebtedness will carry it beyond that limit, and fur