the municipality has contracted, or a liability resulting, in whole or in part, from some act or conduct 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 over which the municipality has no control, and with respect to which it has no discretion; and the payment of his salary is a 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." [1] The reasoning of the foregoing decision, as well as that of the other cases above cited dealing generally with the scope and purposes of this constitutional provision, would clearly seem to confine the application of said provision to those forms of indebtedness and liability which may have been created by the voluntary action of the officials in charge of the affairs of such city and to have no application to cases of indebtedness or liability imposed by law or arising out of tort. As to the latter class of liabilities to which the indebtedness existing in the instant case. belongs, viz., that arising out of tort, there is no direct adjudication in this state. The constitutions and statutes of several of the other states of our Union contain similar provisions to that embraced in the foregoing clause of our own constitution, and in construing these it has been uniformly held by the courts of these states that said limitations do not apply to liabilities arising out of torts. (Conner v. City of Nevada, 188 Mo. 148, [107 Am. St. Rep. 314, 86 S. W. 256]; City of Bloomington v. Peurdue, 99 Ill. 329; Rice v. City of Des Moines, 40 Iowa, 638; City of Chicago v. Sexton, 115 Ill. 230, [2 N. E. 263]; Fort Dodge etc. Co. v. City of Fort Dodge, 115 Iowa, 568, [89 N. W. 7]; Lorence v. Bean, 18 Wash. 36, [50 Pac. 582]; People etc. v. May, 9 Colo. 404, [12 Pac. 838]; O'Bryan v. Owensboro, 113 Ky. 680, [68 S. W. 858, 69 S. W. 800]; Little v. Portland, 26 Or. 235, [37 Pac. 911].) In McQuillin on Municipal Corporations it is stated to be the wellsettled rule that such provisions in the constitutions and statutes of the various states apply only to indebtedness which arises ex contractu and have no application to involuntary liabilities arising ex delicto. We are, therefore, constrained

to hold that the section of the constitution above quoted may not be relied upon to defeat the asserted right of the city of Long Beach to provide for the payment of its indebtedness of which the judgment sought to be funded through this proceeding forms a part, without regard to the state of its revenues for the year in which such liability arose and without a vote of the people of said city.

The question still remains, however, whether the provisions of the act of 1897 above quoted, or of the later amendment thereto, furnish the proper legal authority for the attempted action of the governing body of said city in its endeavor to provide a means for the ultimate payment of said indebtedness. This leads us to a closer consideration of the terms of the act of 1897 and of the amendment thereto adopted in the year 1901. The act of 1897 in its original form was one of a series of similar acts authorizing the funding or refunding of the outstanding indebtedness of municipalities by the issuance of bonds. The first of these acts was passed in the year 1880 and had reference only to the indebtedness of municipalities outstanding on and prior to January 1, 1880, which might be funded in the form of bonds by a two-thirds vote of the members of the governing body. The next enactment touching the subject was the act of 1883 applicable to all cities and towns of the state except cities of the first class. This act provided for the funding or refunding of the outstanding indebtedness of such cities or towns evidenced by bonds or warrants thereof by a four-fifths vote of the members of the governing body thereof. The next act was that of 1893, which amended the act of 1883, adding the important requirement that the question of the issuance of the funding or refunding bonds should be submitted to a vote of the electors. The act of 1895 again amended the act of 1883 by omitting the word. "warrants" and also the requirement of its immediate predecessor for submitting the matter of the issuance of such bonds to the vote of the electors, but limiting the outstanding indebtedness which might be funded or refunded to the principal of the bonds. Then came the act of 1897, which went back as to its language to the form substantially of the act of 1883. Had the legislation of the state been permitted to remain in the form into which it was crystallized in the act of 1897, it cannot be fairly disputed that it was the intention of the legislature to enable towns and cities to fund or refund

every form of their indebtedness by the issuance of bonds therefor through a vote of two-thirds of their governing body. This, of course, they could not do as to such of their contractual obligations as would come within the inhibition of section 18 of article XI of the state constitution; but as to such forms of indebtedness as arose by operation of law, such as official salaries fixed by state law and the like or as had arisen ex delicto and been put in the form of judgments and evidenced by either bonds or warrants, there would seem to be no constitutional objection to the method provided in said act of 1897 for funding or refunding these latter forms of indebtedness. This view of the scope of these several successive acts is further enforced by the meaning to be given to the use of the phrase "fund or refund" found in each of them. [2] To "fund" an outstanding debt of a municipal corporation which is payable presently or at short periods is to convert such indebtedness into a more permanent form with an extended time of payment and with interest which is regular and which may also be reduced. The usual method of "funding" such a debt is by the issuance of bonds. (People v. Carpenter, 31 App. Div. 603, [52 N. Y. Supp. 781]; Ketchum v. City of Buffalo, 14 N. Y. 356; Webster's New International Dictionary, subject "Fund"; Bouvier's Law Dictionary, subject "Fund.") To "refund" is to replace that which has once been funded by a new fund. (Webster's New International Dictionary, subject "Refund.") [3] Applying these definitions to these several statutes it would seem that the term "fund" should be given application to those forms of municipal indebtedness referred to therein as evidenced by "warrants," and the term "refund" to those forms of such indebtedness as had already once or oftener been funded by being put into the form of bonds. Our attention has, however, been called to the fact that two important changes were made in the law relating to the indebtedness of municipalities by the legislature in the year 1901. The first of these consisted in an amendment to the act of 1897, by which the words "or by judgment or judgments recovered against it upon bonds or warrants originally issued by such town or city" were inserted in said act making the portion of said act important to this inquiry read as follows:

"Section 1. The common council, board of trustees, or other governing body of any incorporated city or town other

than cities of the first class in this state, having an outstanding indebtedness evidenced by bonds or warrants thereof, or by judgment or judgments recovered against it upon bonds or warrants originally issued by such town or city, is empowered, by a two-thirds vote of its number, to fund or refund the said indebtedness and issue bonds of such city or town therefor in sums of not less than one hundred dollars nor more than one thousand dollars each and having not more than forty years to run and bearing a rate of interest not exceeding six per cent per annum payable semi-annually." (Stats. 1901, p. 274.)

It is the contention of the respondents herein that as to the above-quoted amendment inserted in the act of 1897, this amendment is to be construed as a limitation upon the powers of the governing bodies of such towns or cities as are embraced in the act confining the issuance of bonds for the funding or refunding of judgments to such judgments only as had been recovered against the town or city upon bonds or warrants previously issued by such town or city; and hence that the judgment in the instant case, not being of that character, was not susceptible of being funded under the terms of the amended act. We cannot adopt this contention. [4] We think the purpose of the amendment to this act made in 1901 was to enlarge rather than to limit its application, and was to so enlarge it as to render it applicable to cases wherein the holders of warrants or bonds against such municipalities who had put these into the form of judgments might also have these judgments funded or refunded in the same manner as they might have had funded or refunded the indebtedness in its original form. Any other construction would leave the term "warrants" without meaning or place in the act. It is to be noted in this connection that the matter of funding or refunding so much of the indebtedness of a municipality as may come within the scope of these acts is a matter which is reposed in the discretion of the governing body of the municipality, and is not a right to such action which holders of the warrants, bonds, or judgments evidencing such indebtedness can either invoke or compel. It rests entirely with the governing body of the town or city to determine whether or not an outstanding indebtedness which is presently due or is soon to become due, or which is bearing a high rate of interest, shall be converted into long term bonds at reduced interest, payable as to both principal and interest in annual or periodi

cal installments. It may not be denied that in many instances of outstanding municipal obligations, possibly even in the instant case, this would be both the desirable and prudential course to pursue. The statute of 1897, as amended in 1901, in our view permits municipalities of the kind covered by its terms to fund or refund their outstanding indebtedness evidenced by their issued warrants or bonds or by judgments obtained thereon when such indebtedness is not of the sort inhibited by the state constitution, and that they may do so by the action of two-thirds of their governing body as provided in said amended act; and that the indebtedness due the creditor of the petitioners in the instant case, evidenced as it is by a duly issued warrant, may be thus funded; and that the petition herein having by the due and regular action of its governing body adopted an ordinance to that effect it is now entitled to have its ministerial officers, the respondents herein, perform the ministerial act of affixing their official signatures to the bond to be issued pursuant to said ordinance.

In reaching this conclusion we are not unmindful of the second contention of the respondents herein that the act of 1897, as amended in 1901 by the act making such amendment approved March 12, 1901, was repealed by the act entitled "An act to provide for the payment of judgments against counties, cities, cities and counties, and towns," approved March 23, 1901. (Stats. 1901, p. 794.) This later act does not purport expressly to repeal any former enactment touching the indebtedness of municipalities. It provides in substance that it shall be the duty of the county clerk to file with the auditor and furnish to the governing bodies of the local municipality affected by the act a list of such existing final judgments against each as are of record in his office fifteen days before the day on which the tax levy must by law be made. It is then made the duty of the governing body of the municipality affected by such judgment having authority to levy taxes upon its taxable property to include in the tax levy a rate or sum sufficient to pay such judgment or such aliquot portion thereof as during a series of like successive levies covering a period of not to exceed ten years would eventually pay the whole of such judgment. [5] This act does not purport to expressly repeal the former act nor do we think it does so by implication. It is to be noted that the former act excepts from its operation cities of the first class and that it