4

Putman v. City of Grand Rapids, 58 Mich. 416 (25 N. W. Rep. 330); State v. Martin, 27 Neb. 441 (43 N. W. Rep. 244). Section 18 of article 11 of the constitution of the state of California provides that "no county, city, town, township, board of education or school district shall incur any indebtedness or liability in any manner or for any purpose, exceeding in any year the income provided for it for such year, without the assent of two-thirds of the qualified electors." It was held in Shaw v. Statler, 74 Cal. 258 (15 Pac. Rep. 833), that, while this provision does not in express terms require that the income and revenue of each year be applied to the payment of the indebtedness of such year, yet by necessary implication it must be construed so to do. The statute of our state on this subject, which we have quoted, is more explicit in its terms than the provision of the California constitution; and we have no doubt of the legislative intent, by its enactment, to compel municipalities to pay the debts of each year from the income of that year.

5

III. We do not understand that counsel seriously question this construction, but it is asserted on behalf of appellee that section 660 of the Code was in force when the older warrants for which a preference is claimed were issued, and that its provisions form part of the contract with the warrant holders. This latter section relates to the duties of treasurers of municipal corporations. By its terms it is provided that warrants, when presented to the treasurer, if not paid for want of funds, shall be indorsed by that officer with the date of presentation, that he shall keep a record thereof, and that "all such warrants shall be paid in the order of their presentation." Section 660 of the Code, and what is now subdivision 16 of section 668, were enacted originally by the same general assembly. The first forms part of chapter 3, and the other of chapter 4, of the Laws of the Twenty-second General Assembly. Both were in force when the warrants were issued for which defendant claims a

preference of payment. We may for present purposes concede that section 660 makes the warrant holder a preferred creditor. People v. Austin (Colo. Sup.), 17 Pac. Rep. 485; Taylor v. Brooks, 5 Cal. 332. But it seems clear that the provisions of section 668 also entered into the contract with the creditor, or perhaps it might better be said that he assumed such relation, subject to its terms. To give force and effect,as we undoubtedly should, to both of these statutes, we must hold that the preference given to warrant holders by section 660 applies only as between warrants issued in any given year. This interpretation, we think, is supported by the reasoning in Shaw v. Statler, supra. In that case a warrant holder sought to compel a county treasurer to cash his warrant. We have quoted the constitutional provision which was under consideration in that case, and which corresponds in its terms to subdivision 16 of section 668 of our Code. At the time Shaw received his warrant, there was also in force in California a statute (section 77 of the county government act) similar to our section 660. It provided, in substance, that warrants should be paid "according to priority of time in which they were presented.' The holding in the case was that, giving force and effect to both provisions, the statute awarding preference of payment to warrants earliest presented must be held to "apply primarily as between the warrants of any given year." We do not perceive that any constitutional question is involved in the case at bar, though counsel devoted no little attention to the discussion of the power of the general assembly to impair the obligations of the contracts of the earlier warrant holders. The case is presented here as though subdivision 16 of section 668 was enacted after the creditors' rights had accrued under section 660. This, we have seen, is not the case. All of the warrants for payment of which defendant seeks to retain the funds in his hands were issued prior to 1898, and it is manifest from what we have said that the holders thereof have no claim upon the revenues of that year, at least, until after VOL. 107 Ia-22

current debts have been paid. The question as to what the rights and remedies of these older warrant holders may be is not before us. It is not out of place, however, for us to say that, if these claims are valid, they can doubtless be put in judgment, and collected by proper process. Plaintiff was entitled to the writ of mandamus for which he prays. The judgment of the district court is therefore REVERSED.

ROBINSON, C. J. (dissenting).—I do not find in subdivision 16 of section 668 of the Code any language which necessarily requires the revenues of cities of the first class to be devoted exclusively to the payment of the expenses of the year in which the revenue is obtained, before other debts can be paid therefrom. The subdivision was undoubtedly designed to prevent expenditures, by cities of the class designated, in excess of their revenues; and when its provisions are complied with, and there is no outstanding indebtedness. incurred in previous years, such cities will be kept on a cash basis, as contemplated by the statute. The appropriations required to be made at the beginning of each fiscal year are the formal setting apart of certain sums of money for designated purposes, and the sums thus designated fix the maximum amounts for which warrants may be issued for the purposes designated. But those appropriations are made in advance of the receipt of the money appropriated. The actual appropriations are made when claims are audited, and warrants therefor are authorized; and the statute does not in terms require that such warrants be paid only from the money appropriated formally at the beginning of the fiscal year. Section 660 of the Code requires the treasurer of cities and towns, "when a warrant drawn on the treasury is presented for payment and not paid for want of funds," to "endorse the fact thereon, with the date of presentation, and sign it." The section further provides that the treasurer "shall keep a record of all warrants drawn on the treasury and presented, * * *" and that "all such warrants shall be paid in the order of their presentation." There is no suggestion in the

section that warrants are to be registered by the year, and paid from the revenues of the year in which they are authorized. The language is sweeping, and includes "all such warrants"; that is, all warrants presented for payment, and not paid for want of funds, and which have been duly indorsed and registered, and all such warrants are to be paid "in the order of their presentation." Those provisions apply, not merely to cities of the first class, but also to all other cities, and to towns; and it will hardly be claimed that warrants issued by such other cities and towns must be registered by the year, and paid only from the revenues derived from the year in which they were issued. But, under the opinion. of the majority, the section must receive two different interpretations, one for cities of the first class, and another for other municipalities. No reason is suggested, and none can be readily imagined, unless found in the statute, for requiring an application of the sections to cities of the first class not authorized for other cities and towns. Reference is made to sections 905 of the Code, as though that were a new provision of law, enacted, in view of the adoption of subdivision 16 of section 668, for the purpose of facilitating the return of cities of the first class to a cash basis. But the powers thereby conferred are not new, and the larger part, if not all, of them had been given by prior legislative acts, some of which were in force before subdivision 16 and section 660 were enacted in their original form. According to well-established rules of interpretation, both of the statutes last referred to should be so construed as to give force and effect to all of the provisions of each; and it seems to me that when that is done it will be found that all warrants should be paid in the order of their presentation for payment. If that be true, the ruling of the district court was right, and its judgment should be AFFIRMED.

GRANGER, J., concars in this dissent.

SUPPLEMENTAL OPINION.

WEDNESDAY, JANUARY 25, 1899.

PER CURIAM. The foregoing opinion was withdrawn on our own motion, for the purpose of adding a brief statement on a point disclosed by the record, but which counsel did not see fit to present. We make mention of it to forestall any misunderstanding of our holding.

It appears that Council Bluffs was organized as a city of the first class subsequent to the year 1881, and by the terms of chapter 4, Acts Twenty-second General Assembly, it is excepted from the application of the provisions of that statute. This point counsel, for some reason, studiously avoided presenting. They united in stating two propositions only as raised by the demurrer. These we disposed of in the original opinion. More than this we were not permitted to do, under our well-established rule, to give no attention to points not argued. Counsel had a right, of course, to rest their client's claim upon any ground they saw fit. We only desire to say that the case was decided upon the theory on which it was here tried, viz., that the statute mentioned applied to the city of Council Bluffs. Because of the method of presenting the case, we assumed, but did not decide, that the statute applied. If it does not, the effect of the exemp tion is an open question, to be settled hereafter.

107 340 113 458 107 340 122 412 107 340

107 340 134 552

MCCORMICK HARVESTING MACHINE COMPANY V. MARKERT.

Sales: ACCEPTANCE. Where plaintiff filled defendant's order for a 5 certain chattel within the specified time, no other acceptance of such order, or notice thereof, was necessary.

f130 123 COUNTERMAND: Agency. An order for a manufactured chattel, given to an agent of the manufacturer, was not countermanded when the purchaser notified another agent that he wished the 1 order returned to him, which request was not communicated to the principal.