provided, and that the dates of such registration are correctly set forth in said plaintiff's complaint, and that said warrants were afterwards, by the payees there named, duly, under the hands of each, indorsed to the plaintiff, who is now the owner and holder thereof, and that said indorsements were had and made before the commencement of this action;" and a table showing the condition of the road funds of the county from the 31st day of December, 1883, until the 1st day of January, 1887, by which it appears that the total credit to said fund between those dates amounted to $59,932.11, and the total debits to $40,752.49, leaving a balance that should be in the treasury, or to be accounted for, of $19,179.62; also a statement or table showing that the aggregate indebtedness of the county greatly exceeded the constitutional limit at all the dates mentioned.

66

There was also introduced in evidence on the part of the plaintiff the following extracts from the record of the acts and proceedings of the board of county commissioners of the county of the 13th day of May, 1889, certified by the clerk: "It is hereby ordered that the treasurer be requested to use the money in the contingent and road funds in the payment of warrants outstanding against said funds in the order in which they have been presented. And it is further ordered that the treasurer be requested to distribute the money to be received and now due from Lake county on account of judgment, as follows: One-third to the contingent fund, one-third to the road fund, and one-third to the general fund;" and the following resolutions adopted on the same date: Whereas, Chaffee county is, and has been for some time past, financially embarrassed, caused in part by the issue of warrants and bonds in excess of the constitutional limit as construed by the supreme court of the state in the case of People v. May, 9 Colo. 404, 12 Pac. Rep. 838; and whereas, it is the opinion of this board, after investigating the matter, that at least a portion of said indebtedness contracted prior to January 1, 1886, is legal and binding, and should be paid; and whereas, there is now in the hands of the treasurer quite a sum of money and evidence of indebtedness to the credit of the general and road funds, to-wit, in the general fund $--, and in the road fund $---, as shown by his report of January 1, 1886; and whereas, the hands of this board are and have been practically tied to the extent that they have been utterly unable to pay any of the claims against the county since said decision by the supreme court, and which we recognize as the law of the state; and whereas, there is now on file a great number of claims against the county for services rendered and materials furnished, which should be paid, as well as provisions made for the actual running expenses of the county in order to prevent anarchy, and assist in the enforcement of law and order; and whereas, this board is desirous of providing ways and means for relief, and believing that the action which they are about to take is in accordv.29p.no.5-19

ance with law and justice: It is therefore ordered that the treasurer be, and he is hereby, instructed to set apart all of the county, general, and road funds in his hands on the 1st day of January, 1887, for the payment of the legal indebtedness of those said Chaffee county funds contracted prior to and during the year 1886 up to the time of the rendering of the said de. cision of the supreme court of the state; said legal indebtedness to be hereafter determined by suits now pending and hereafter brought, or any other means of ascertaining the same. And it is further ordered that he be instructed to open anew accounts with the said funds, dated January 3, 1887, and all revenue from every source collected for said funds on and after said date shall be placed in the new accounts, to be used in the payment of warrants hereafter drawn by the board of commissioners in payment for services, fees, materials, etc. It is further ordered that all warrants or orders hereafter issued against said general and road funds shall be designated as 'Series A' and Number 1. The county hereby assumes to pay all necessary expenses incurred by the county treasurer in the enforcement of the above order, "-which was all the testimony in the case.

Judgment for the defendants, and that the complaint be dismissed.

Teller & Orahood and W. D. Wright, for plaintiff in error. G. R. Hartenstien, for defendants in error.

19

REED, J., (after stating the facts.) The defense that the county was indebted in excess of the constitutional limitation, and hence that the warrants in question were void, cannot, in our judgment, prevail. The warrants on which suit was brought were drawn upon and payable out of a specific fund, viz., that created for "road purposes." In section 5 of the "Revenue Act" (Gen. St. § 2816) it is provided: "There shall be levied and assessed upon taxable real and personal property within this state in each year the following taxes: For the support of schools, not less than two nor more than five mills on the dollar; for road purposes, not more than five mills on the dollar, etc. This was re-enacted, with some amendments not necessary to be noticed, (the power to levy and the amount remaining the same,) by the legislature of 1885. See Sess. Laws 1885, p. 318, § 3. Second in importance only to education, under our common-schools system, is the subject of roads and bridges,-the welfare and prosperity of a county or community being dependent upon facilities for travel and communication; and it assumes far greater importance in a mountain region, where greater obstacles are to be overcome, and where travel is almost impossible, except by artificial routes, needing annually great labor, care, and attention. Realizing this fact, the legislature wisely provided for a specific fund annually for such purposes, which fund is as specific and sacred for the purposes of its creation as the common-school fund, and can no more be diverted and otherwise appropriated by county authorities. It is true

that it is declared in the constitution (article 9, § 2) "the general assembly shall, as soon as practicable, provide for the establishment and maintenance of a thorough and uniform system of free public schools throughout the state," etc.; and in section 3 that "the public-school fund of the state shall forever remain inviolate and intact. * No part of this fund, principal or interest, shall ever be transferred to any other fund, or used or appropriated, except as herein provided, etc.

#

While there are no such provisions in regard to a special fund for road purposes in the constitution, there is no prohibition. The state constitution is a limitation only of the power of the legislature. It is a fundamental principle that the state legislature has unlimited power, except as restricted by the constitution. The supreme court of this state in People v. Hall, 8 Colo. 497, 9 Pac. Rep. 34, said: "Except as limited or controlled by constitutional provisions, the general assem bly is omnipotent in relation to municipal corporations within the state. It calls them into being, and endows them with whatever powers and privileges they possess. If in its judgment advisable, their existence, even, may at any time be absolutely terminated. In these and other particulars it bows only to the superior behests of the people, expressed in their organic law." And in Board of Sup'rs of Sangamon Co. v. City of Springfield, 63 Ill. 66, the court said: "The taxes must be paid into the county treasury, and when there they are under the control of the county, and it must be held responsible for any proportion due to the city or to any third party. The treasurer is the mere agent, and must obey the authorities, of the county. The direction in the act that, when the taxes shall be paid into the county treasury, the treasurer shall pay,' etc., imposes an obligation upon the county, on the refusal of the treasurer to comply with the requirement. He is commanded to perform a purely ministerial duty. The liability of the county arises from the fact of having the possession of money which rightfully belongs to another party. A county is a public corporation, which exists only for public purposes, connected with the administration of the state government, and may be controlled by the legislature. 2 Kent, Comm. 306. Such a corporation, and of course its revenue, is subject to the control of the legislature. County of Richmond v. County of Lawrence, 12 Ill. 1.

When, therefore, the legislature directs the application of the revenue on deposit in the treasury to a particular purpose, or its payment to any party, a duty is imposed and an obligation created upon the county. See, also, Alexander v. People, 7 Colo. 155, 2 Pac. Rep. 894; People v. Osborne, 7 Colo. 605, 4 Pac. Rep. 1074; Ketchum v. City of Buffalo, 14 N. Y. 367; People v. Flagg, 46 N. Y. 401. That the legislature is exercising an acknowledged constitutional power in directing future county revenues to specific purposes, see People v. Flagg, supra; Young v. Hall, 9 Nev. 213; Esser v. Spaulding, 17 Nev. 303; People v. Power, 25 Ill. 191; McDonald v. Maddux, 11 Cal. 187; McCauley

v. Brooks, 16 Cal. 35. The legislature, within the legitimate limits of its power, wisely provided for a specific fund to be assessed, levied, collected, and applied to road purposes only; and such fund is as specific for that purpose, and as unavailable for other purposes, as the school fund is made by the constitution. It was against this specific fund that the warrants in controversy were drawn.

By the stipulation on file, it is shown that the amouut of the credits to the road fund in the years 1883 to 1886, both inclusive, exceeded in the aggregate the outstanding warrants, and warrants drawn against it, some $19,000, and that in each of the years the available road fund exceeded by quite an amount the warrants drawn. Hence, if the fund had been entirely devoted to the purposes of its creation, and there had been no diversion or misapplication of the fund, it was at all times solvent, and at the end of each fiscal year with money in the treasury to pay all warrants drawn during the year. It is agreed that on December 31, 1883, there were outstanding warrants amounting to $18,926.32. What amount of it had been drawn in the year 1883, and what amount existed prior to that time, we are not shown; but the assets of the fund exceeded all the outstanding warrants over $3,000. At the close of each of the following years the balance to the credit of the fund was much greater. It will be observed by the figures shown in the stipulation that the delinquent tax uncollected on December 31, 1883, was $12,966.39, and that in the following years it remained about $16,000 or over; showing that the collections of former years about equaled the delinquency of each succeeding year. Consequently, the fund was at all times solvent, and able to respond to the warrants drawn. It was not contemplated by the legislature, nor expected, that there should be at all times money belonging to the fund actually in the treasury to pay all warrants at the time of drawing or presentation; so a system of registry was provided whereby warrants were to be paid in the order of their presentation. In People v. May, 9 Colo. 404, 12 Pac. Rep. 838, it is said by the supreme court: "Valid appropriations of its rev. enue may be made in anticipation of the col lection thereof, "etc. The drawing of warrants against a special fund already provided, and certain to be paid in during the fiscal year, for their payment, is not the creation of a debt or debts, within the constitutional prohibition. The application of a special fund to the purpose of its creation, by the drawing of warrants against such fund, unless the amount drawn during the year exceeds the amount provided for such fund, and supposed to be available, is not the creation of a debt, although it anticipates the revenue to be collected, as they are drawn against existing values; hence cannot be classed and regarded as the debt of the county, prohibited by the constitution, unless in excess, in some year, of the money provided for their payment during that year. Whether or not warrants so drawn on the special fund in excess of it can be classed

with the general indebtedness of a county, so as to swell the aggregate, and render the warrants void under the constitutional prohibition, we do not find it necessary to determine in this case; but, if they could in any case be so considered, it would not invalidate all the warrants of that year, but only those drawn after the fund was exhausted, and in excess of it. As it is shown by the stipulation on file that in the years from 1883 to 1886 the warrants drawn did not exceed, but were clearly within, the fund provided for their payment, none of them could become invalid by reason of the general indebted. ness exceeding the limit fixed by the constitution.

2. It is urged in argument by counsel of defendants in error that this form of action would not lie. He says: "Another objection to plaintiff's recovery in this action is that the warrants are payable out of a particular fund, and are not a charge against the county in this action;" and a long list of authorities are cited in support of the proposition. The first, and perhaps the only, answer necessary to this position, is that no such question was raised in the court below. It first appears in argument. That the form of action selected was the proper one appears to have been conceded. An answer was put in upon the merits, putting the defense entirely upon other and different grounds. The issues were made up, and the case tried, without a question as to the form of action selected. This is a court of review, not of original jurisdiction. Had the point been raised by proper pleading in the lower court, and the question adjudicated, the finding might be reviewed here; but having been waived, and the propriety of the action conceded, the matter is not before this court. It is now too late to take advantage of matter in abatement of the action. But admitting, for the purposes of argument, that the question can be raised in this court, we are confronted with the following facts and difficulties: Conceding, as we must, under the authorities, that where warrants are drawn upon a special fund, and there is money belonging to that fund in the hands of the proper officer, who refuses to pay, mandamus is the proper proceeding, and proof must be made of the ability of the officer to pay, what are the conditions of this case? It is alleged in the complaint that for the years 1883 to 1887 the amount of the road fund was largely in excess of the warrants drawn against it, and that at the beginning of the year 1887 there was, or properly should have been, a large balance belonging to that fund in the hands of the treasurer. These several allegations are all traversed by the answer, are reasserted in the replication, and the further alle. gation made, asserting in effect that the large balance should be in the road fund, and, if not there, that the same had been by the county authorities diverted and misapplied to other county purposes. In the stipulation of counsel, it is conceded that the warrants in controversy were presented to the treasurer, and payment demanded, “and that payment thereof

was refused for want of funds." Here is a conclusive and binding agreement, entered of record, that there was no money in the road fund for the payment of the warrants. Counsel for plaintiff, knowing this fact in advance, could not be required or expected to proceed by mandamus, which could only be available with the money in the treasury, and upon proof that it was there, and of a refusal to pay. By the figures and abstracts contained in the stipulation, it is shown that there should have been a large balance in the treasury to the credit of the road fund. No proof whatever was offered on the part of the defense to explain or show to what use the fund had beeu applied, and why it was not on hand. Prima facie, a case was made sustaining the allegations in the complaint, that required defendant to rebut. No effort was made to do so. Counsel evidently relied upon the supposed invalidity of the warrants by reason of the county indebtedness exceeding the constitutional limit, and did not think it necessary to interpose other defenses. The figures contained in the stipulation, showing that there should have been a large balance of the special fund in the treasury, and the same document stip. ulating that there was none, prima facie, at least, established the allegations of the complaint of diversion and misapplication of the fund to other purposes by the county officials; while the abstracts from the record of the proceedings of the county commissioners, put in evidence by the plaintiff, show that the county commissioners, by resolutions passed and entered of record, ignore and repudiate the warrants, and open up new accounts, and designate arbitrarily the warrants that shall be thereafter paid. All the evidence put in shows the financial affairs of the county to have been inextricably mud. dled, the warrants drawn upon the special fund repudiated, the money belonging to the fund misapplied, and an illegal and maladministration of county finances. It is an old maxim" that there is a legal remedy of some kind for each wrong.' As before stated, there being no money in the hands of the treasurer belonging to the special fund, and this fact having been conceded by the stipulation filed, a proceeding by mandamus would have been futile and abortive. And now to hold that this or some similar action by the creditors of the county against it, through its corporate officers, could not be maintained, and a general judgment obtained, would be practically to declare that the plaintiff was remediless, and that creditors of a county could in no way enforce just claims if the authorities saw fit to dissipate, divert, or misapply special funds provided to pay special warrants.

The action (aside from the equitable part of it, that will be hereafter considered) was an action of indebitatus as sumpsit at common law, and by the Code the common-law remedy has not been restricted, but enlarged. This action will lie for "the breach of all parol or simple contracts, whether verbal or written, or express or implied, for the payment of money." 1 Chit. Pl. § 112; Steph. Pl. 49;

Curtis v. Fiedler, 2 Black, 461; U. S. v. Russell, 13 Wall. 623; Town of Queensbury v. Culver, 19 Wall. 83; Barker v. Cory, 15 Ohio, 9. In Archbold on Pleadings and Evidence, (pp. 23, 24,) it is said: "If a man undertake an office or employment, trust or duty, he thereby, in contemplation of law, impliedly contracts with those who employ him to perform that with which he is intrusted with integrity, diligence, and skill; and, if he fail so to do, it is a breach of contract, for which the party may bave his remedy by action on the case, or, in most cases, by action of assumpsit." The general rule is, whenever a party has been damuified by the intentional wrongful act, misapplication of money, or by the gross carelessness or culpable negligence of another, an action of assumpsit may be maintained; and under the Code, abolishing all special forms of action, and only giving one general action, it is clear that where, prima facie, it was shown that the special fund provided for the payment of the warrants had been illegally withdrawn and appropriated to other purposes by the agents intrusted with the management of the finances, a creditor could not be expected to proceed by a special and extraordinary remedy to secure money that had no existence in a special fund. The action as brought was maintainable unless the allegations in the complaint and the proofs offered had been met by proper defenses and proofs, showing no misapplication of the special fund, no breach of duty, or maladministration of the fund. See Stimpson v. Sprague, 6 Me. 470; Farwell v. Rockland, 62 Me. 296. In People v. Mayor, 25 Wend. 685, it was said: "Here is a legal duty enjoined by competent authority, which the corporation is bound to discharge. action on the case or assumpsit will lie for a neglect of corporate duty.' See, also, Ellis v. Henry, 5 J. J. Marsh. 248; Church v. Mumford, 11 Johns. 479. In Board of Sup'rs of Sangamon Co., supra, it was held that assumpsit under the common counts could be maintained against a county for money accruing due to the plaintiff under a statute where there was no restriction to any other particular remedy, and that when, by an act of the legislature, the county taxes were apportioned between a county and a city, and the county treasurer refused to pay the city her portion, the money due the city from the county could be recovered in assumpsit under the common counts. In this state, as in the state of Illinois, there is no specific remedy prescribed by the legislature in proceedings of this character; hence the remedy may be as at common law, except in so far as the common-law procedure is modified by the Civil Code. Varnum v. Martin, 15 Pick. 440. Under the pleadings, the stipulation, and other evidence of plaintiff, uncontradicted or explained by the defendant, the court erred in its judgment. It should have been for the plaintiff.

An

3. By authenticated copies of the records of the proceedings of the county commissioners, put in evidence by the plaintiff, the following appears as of date of January 12, 1887: “And whereas, there is now in the hands of the treasurer quite a sum

of money and evidence of indebtedness to the credit of the general and road funds, to-wit, in the general fund $, and in the road fund $- as shown by his report of January 1, 1886;" which is followed by a resolution in regard to the disposition of the fund, etc., as is above copied in the statement of the case. Here we find, by a resolution of the board passed and entered of record, an admission that there was in the hands of the treasurer "quite a sum of money belonging to the road fund,” which had been in the treasury over a year. As was shown by the report of the treasurer of January 1, 1886, to this there was presumably to be added the amount collected from January 1, 1886, to January 12, 1887; for on that date the commissioners assert that the hands of the board have been tied to such an extent that they had been unable to pay any claims against the county. Since the decision of the supreme court in People v. May, (December term, 1885,) payment of the warrants in controversy having been refused for an alleged want of money, the plaintiff was clearly entitled to equitable relief to the extent of the discovery and accounting asked, under the admissions entered of record and the refusal to pay. If the facts presented upon the trial did not warrant, in the judgment of the court, a judgment in his favor, he was fully entitled to know why his claims had not been paid from money admitted to have been in the treasury, what disposition had been made of the money belonging to the special fund conceded to have been in the treasury, and such further information as would, if possible, enable him to enforce his just claims, and collect an unquestioned, just demand. Under our system of practice, it is perhaps unnecessary to say that both legal and equitable relief may be granted in the same suit, and upon a proper prayer equitable relief may be granted upon the facts stated in the complaint at law. It is very doubtful if, under our present mode of procedure, a separate and distinct proceeding by bill in equity in aid of an action at law could be maintained. By the "Supreme Court Judicature Act" of 1873, (36 & 37 Viet..) consolidating all the superior courts into one tribunal, the distinction between legal and equitable actions was abolished, and the mode of procedure was made similar, if not identical, with that of the code states of America, permitting all legal and equitable causes of action and defenses to be united in one proceeding. Since the passage of that act it has been held that a purely equitable bill for discovery, only, could not be maintained, and the relief could only be had by the proper proceeding in the action at law. At the same time it was held "that all the doctrines and rules concerning the subject-matter of discovery, ** which had been ostablished by courts of equity, were still in force, and control the same matters in the new procedure," and were available to plaintiff and defendant alike, (see Anderson v. Bank, 2 Ch. Div. 644; Cashin v. Craddock, Id. 140: Hoffmann v. Postill, L. R. 4 Ch. App. 673;) and the same has been frequently held in many code states. The