sum of $563.23 to refund outstanding indebtedness of the city of Long Beach in the sum of $563.23, evidenced by a warrant of said city." It is the bond which was to be issued pursuant to this ordinance which the defendants herein as mayor and treasurer of said city refused to sign, and it is their signature of the same which it is the purpose of the writ sought herein to compel. The act of the legislature under the terms of which the petitioner seeks to justify attempted issuance of the bond in question by a two-thirds vote of the governing body of said city is the act of 1897 (Stats. 1897, p. 75), which reads in part 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, is empowered, by a two-thirds vote of its number, to fund or refund the same 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." It may be here noted that the foregoing section of the act of 1897 was amended in 1901, (Stats. 1901, p. 274), in an important particular to be hereinafter discussed.

The first contention of the defendants herein in opposition to the issuance of said writ is that the payment of said indebtedness in the manner provided by the terms of the statute above quoted or of any amendment thereto is inhibited by the provisions of section 18 of article XI of the state constitution, reading as follows: "No county, city . . . shall incur any indebtedness or liability in any manner or for any purpose exceeding in any year the income and revenue provided for such year, without the assent of two-thirds of the qualified voters thereof, voting at an election to be held for that purpose. . . .

It being conceded that the indebtedness or liability evidenced by said warrant is part of a total indebtedness or liability arising from a common cause which exceeded in the year of its creation the income or revenue of said city provided for such year, the first question presented for our consideration is that of the scope, application, and effect of the provisions of the state constitution last above quoted. The purpose for which the foregoing section of the state constitution was

adopted is somewhat outlined in the debates of the constitutional convention of 1879, to which our attention has been directed, from which it appears that the framers of this particular section of the constitution stated its object to be to put an end to "the practice prevalent both in California and in the eastern states, a practice that has grown rapidly of late years, of extravagance and expenditure in engaging in improvements of various kinds which has resulted in an enormous increase of municipal indebtedness." A yet more definite expression of the purpose of this provision of the constitution is to be found in the decision of this court in the case of San Francisco Gas Co. v. Brickwedel, 62 Cal. 641, wherein it is stated: "The system previously prevailing in some of the municipalities of the state by which liabilities and indebtedness were incurred by them far in excess of their income and revenue for the year in which the same were contracted, thus creating a floating indebtedness which had to be paid out of the income and revenue of future years, and which, in turn, necessitated the carrying forward of other indebtedness, was a fruitful source of municipal extravagance. The evil consequences of that system had been felt by the people at home and witnessed elsewhere. It was to put a stop to all of that, that the constitutional provision in question was adopted." The subject was further considered in the case of McBean v. City of Fresno, 112 Cal. 159, [53 Am. St. Rep. 191, 31 L. R. A. 794, 44 Pac. 358], and Arthur v. City of Petaluma, 175 Cal. 216, [165 Pac. 698], wherein the language of the foregoing case was expressly referred to and approved.

Having thus determined the general scope and purpose of the constitutional provision under review, we may next consider the limitations imposed upon its application by our previous decisions. In the case of Lewis v. Widber, 99 Cal. 412, [33 Pac. 1128], this court decided that the payment of the salary of a public officer (in that case the treasurer of the city and county of San Francisco), whose office has been created and salary fixed by the legislature of the state, is not within the prohibition of section 18 of article XI of the constitution. In so deciding, this court, after quoting the foregoing language of the constitution, 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 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 1 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