of payment only as between the warrants of any given year. This statute was construed in Shaw v. Statler, 74 Cal. 258, 15 Pac. 833, and in Gas Co. v. Brickwedel, 62 Cal. 641; but the decisions were based squarely upon an article of the California constitution providing that no indebtedness or liability should be incurred (except in the manner stated) exceeding in any year the income and revenue actually received by such county, city, town, township, board of education, or school district; and the supreme court rightly construed that limitation to mean that each year's income and revenue must pay each year's indebtedness and liability. It especially referred to the system previously prevailing in the municipalities of the state before the adoption of that restrictive provision of the constitution; and the earlier cases, before the enactment of that constitutional provision, decided the questions there passed upon exactly the other way.

But, say the respondents in this case, "nobody is attempting to impair this obligation except appellant. His warrant will be paid by the city according to its number, date, and issue against the general fund. But that language does not exclude the special tax levy in question, nor the creation of new funds, if the general fund is left unimpaired." We see nothing to indicate that the tax provided for under the new ordinance is a special tax. It seems to us to be as general as any other tax that is levied for municipal purposes. The case of Esser v. Spaulding (Nev.). 30 Pac. 896, seems to be in point on some propositions in favor of respondents' contention. There a provision of the statute which provides that, whenever there is a surplus in the salary fund, the board of county commissioners may transfer it to the general fund, and, whenever there is a deficiency, the board shall transfer to the salary fund a sufficient fund to meet all warrants drawn against the salary fund, was held to work no impairment of the obligation of contracts between a county and a person holding a certificate of indebtedness thereof payable out of the general fund, who was injuriously affected by the transfer to the salary fund. It is true that this case is really not in point, from the fact that it held that no contract was entered into between the county and the receiver of the warrant, while the contrary is the settled law of this state. Neither does the case of Charles River Bridge v. Warren Bridge, 11 Pet 427, upon which the Nevada court seems to baze its judgment, involve the principles that are involved in this case. However, the court says: "If we admit there was a contract, what was its extent? Only that certificates against the general fund should be paid out of that fund in the order of presentation or allowance. The salary law does not impair the obligation of that contract, even though it exists, unless it is impaired by the passage of a general law, the effect of which is merely to

postpone payment. The contract to pay out of the fund stated in the certificates has not been changed or impaired. It is still incumbent on the county to pay out of the general fund, and in the order of presentment or allowance." We are not impressed with either the logic or fairness of this reasoning. It is not difficult to see that the court awarded to the plaintiff in that case the letter, while depriving him of the spirit, of the law. It was not only the right to have his warrant paid cut of a certain fund that was guarantied to the plaintiff in that case or in this, but that guaranty carried with it the idea that the fund itself should not be diverted from the purposes to which the law under which he contracted applied it. It might as well be said that if the city of Tacoma, being the possessor of two springs of water, had contracted with the plaintiff that he should have a right to the use of one spring for the purpose of watering his stock or for domestic purposes, and, after having entered into that contract and received its pay, had inserted a pipe into the current which fed the spring, thereby conveying the water which would have emptied into the spring into another channel, when the purchaser remonstrated it could say to him: "Your right has not been interfered with. The spring is there, and you have the first right to the use of it." We hardly think that the admissibility of such a practice would be urged in a court of justice, and yet it seems to us that it is a parallel case. It is the fund, and not the shell which contains the fund, that the plaintiff is interested in; and, if the value of the thing which he purchased has been diminished by reason of the diversion or this luna, then it is an impairment of his contract. If, by reason of this diversion, the payment of the warrant will be delayed from 1 to 10 or 15 or 20 years, or any number of years, this fact certainly detracts from the value of the warrant purchased. If it had been known at the time of the issuance of the warrant that the date of its payment was uncertain, and that the funds as they came into the treasury were to be appropriated to the payment of subsequent claims, the warrant would not have had the market value that it did have at the time of its issuance. A person furnishing stationery or other goods or services to a county, by paying some little attention to the finances of the county, can determine with some degree of certainty when a warrant of a certain issue will be paid. That determination, especially in view of the fact that the interest is not paid until the warrant is paid, is a determination of the value of the warrant, and any postponement of that payment is pro tanto an impairment of his contract. It was decided by this court in the case of Trust Co. v. Gelbach, 8 Wash. 497, 36 Pac. 467, that, under the laws of this state, a county warrant is a contract to pay money, and, if not paid on presentment to the county treasurer, the legal rate of interest in

effect at such time enters into the contract as a part thereof, and cannot be affected by a subsequent law reducing the rate. It must be equally true that the time of payment cannot be affected by a subsequent law lengthening such time. In Cloud v. Town of Sumas, 9 Wash. 399, 37 Pac. 305, it was held that the remedy of the holder of the warrant in case of the refusal of the treasurer of the corporation to pay the warrant in its order is to proceed against that officer by mandamus. To the same effect was Fire-Engine Co. v. Davis, 9 Wash. 600, 38 Pac. 154. A case which is very strongly relied upon by the respondents is Clay Co. v. McAleer, 115 U. S. 616, 6 Sup. Ct. 199, where a judgment creditor against the county commenced proceedings in mandamus, commanding the county officers to set apart a fund to pay the debt, or to levy and collect sufficient tax fo. the purpose; and it was held that, on the facts pleaded and admitted, no case was made justifying a writ of mandamus. But tois opinion was based solely upon the ground of necessity, and on the admission of the pleadings that the whole amount of the tax for a current year was necessary for the ordinary current expenses of the county, and that the levy was as high as was authorized by the statute of Iowa, from which the case comes. By such statute, the county was authorized to levy and collect a tax of six mills on the dollar of the assessed value of the taxable property, for ordinary county revenue. This was the maximum levy. And it was upon this ground that the supreme court of the United States decided the case. But that question is not presented in this case.

On page 4 of the statement of facts by respondents, after setting forth the assessment, it is said: "Then for the fiscal year 189596 the city of Tacoma has the power to levy 20 mills for all purposes. This would produce the sum of $530,104. Having, however, levied but 11 mills, it has yet to its credit, unappropriated and unexpended, the sum of $238,547. In other words, by a mandamus proceeding, the plaintiff can secure that large sum to be placed in the general fund for the payment of his and other similar warrants. There is nothing in this record to show that this will not be sufficient to pay all general fund warrants." It is not the duty, even if it be the privilege, of the holder of a warrant, to compel the city to place money in the treasury. That is the duty of the city. The law gives the creditor the right to have his warrant paid according to its number, date, and issue, out of moneys which are in the treasury. His right to an action commences then, and he has a right to invoke the law for the protection of his interest in such moneys, and to prevent them from being diverted from their proper channel, or from being applied to the payment of claims subsequent to his, and to his injury; and before the city can be heard, as an excuse for the repudiation in any degree of any just debt, to urge the plea of v.44P.no.8-56

"necessity of existence," it must show that it has availed itself to the fullest possible extent of all its privileges under the law, and has put forth all the efforts necessary to perpetuate its existence under the conditions imposed by the law of paying its honest obligations in compliance with the provisions of law. When such a case is presented, it will be time to discuss the grave questions involved in the propositions of "corporate necessity," and the preservation of "corporate existence." But those questions are not involved here. The judgment will be reversed, and the cause remanded, with instructions to enter judgment in accordance with the prayer of the plaintiff.

HOYT, C. J., and ANDERS and GORDON, JJ., concur.

(14 Washs. 419)

GATES v. MOLDSTAD et al. (Supreme Court of Washington. April 13, 1896.)

FRAUD-COMPLAINT-SUFFICIENCY.

A complaint which alleged that defendants, by fraudulently and falsely representing that the makers of certain notes were solvent, induced plaintiff to accept them in payment for land conveyed to defendants; that, as a further inducement, defendants promised to indorse them without restriction, but had indorsed them without recourse,-stated a cause of action for the fraudulent representations as to the solvency of the makers.

Appeal from superior court, Skagit county; Henry McBride, Judge.

Action by Clarinda C. Gates against N. J. Moldstad and another, as partners. From a judgment dismissing her complaint, plaintiff appeals. Reversed.

Million & Houser and D. H. Hartson, for appellant. Sinclair & Smith, for respond

ents.

HOYT, C. J. By this action, plaintiff sought to recover for damages alleged to have been sustained by reason of certain false and fraudulent representations made by respondents with reference to the solvency of the makers of two certain promissory notes, which induced appellant to accept said notes in part payment for certain real estate which at the time was conveyed to respondents. The complaint, after setting forth these facts, alleged that, for the purpose of further inducing and causing appellant to accept said notes, respondents falsely and fraudulently represented that they would indorse them, and become responsible for their payment; that, instead of doing so, they indorsed them without recourse. The superior court held that the complaint did not state facts sufficient to constitute a cause of action, and, the plaintiff electing to stand upon the complaint, judgment of dismissal was entered, to reverse which this appeal has been prosecuted.

In what respect the superior court found the complaint to be insufficient does not appear from the record, but the principal reason therefor suggested in the brief of respondents is that the representations as to the solvency of the makers of the notes could not have induced the appellant to accept them, for the reason that what was said upon that subject was merged in the promise to indorse the notes, and that what was said as to the indorsement was merged in the contract which was made when the notes were indorsed without recourse. If the solvency of the makers of the note would have been a matter of no concern to the appellant had the agreement to indorse stated by her been complied with by the respondents, there might be force in the contention that the complaint failed to state a cause of action, for the reason that all of the negotiations leading up to the making of the indorsement might be held to have been merged therein. But, in our opinion, the solvency of the makers might have had a material influence upon the appellant, irrespective of the question as to whether or not the indorsement of the notes was to be such as to make the respondents liable if they were not paid by the makers. If the indorsement was such as to make the indorsers liable in case of nonpayment, the responsibility of the makers could not materially have influenced the appellant, if she was content to rely solely upon the responsibility of the indorsers. But there is nothing in the complaint to show that she was content to rely upon their responsibility alone. For all that appears, such indorsers may have been of doubtful responsibility; and even though the notes had been indorsed by them, so as to make them liable in case of nonpayment, appellant's principal reliance may still have been upon the responsibility of the makers of the notes. If the makers were responsible, and the indorsement was such as to make them liable, appellant had two sources to which to look to make the money due on the notes; and these sources were entirely independent of each other, and could be resorted to jointly or severally until the full amount due upon the notes had been paid. Hence representations in reference to the indorsement had no connection whatever with representations as to the solvency of the makers. The one was a representation which might have induced her to presume that she could recover the money due upon the notes from the makers; the other, that she could recover it of the respondents; and the fact that one was made under such circumstances as to show that she did not rely upon it could in no manner negative the claim that she relied upon the other.

The representations as to the solvency of the makers, alleged in the complaint to have been made by the respondents, were as to

existing facts material to the question of their solvency, and not mere matters of opinion as to such facts; and it was sufficiently alleged therein that the appellant relied upon such representations, and, by reason of them, took the notes in part payment of the money due from the respondents; and it was also sufficiently alleged that such representations were untrue, and that the respondents knew they were untrue at the time they made them, and that the makers were in fact insolvent, and the notes valueless so far as their value depended upon the ability to collect a judgment rendered thereon against the makers. That the making of material representations of this kind, when known to be false, constitutes such fraudulent misrepresentation as to render the one who makes them liable in damages, is beyond question. Hence the complaint stated a cause of action, unless the representations as to the solvency of the makers were merged in those as to the agreement to indorse, and those, in turn, merged in the contract of indorsement evidenced by the indorsement itself. But, as we have seen, the agreement in reference to the indorsement was entirely independent of the representations as to the solvency of the makers, and could have had no influence upon such representations.

The reasons given by the appellant in her brief for including the representations as to the indorsement in the complaint were that the fact that the respondents were willing to indorse the notes tended to show that they had made the representations alleged as to the solvency of the makers. But, in our opinion, this claim furnished no good reason for such representations having been included in the complaint. If these representations were, as claimed by the respondents, merged in the contract evidenced by the indorsement, they were without value to the appellant. The fact that the respondents were willing to indorse could have no tendency to prove that they represented the makers to be solvent. They might have been willing to indorse the notes, and deliver them, instead of paying the cash, even if the makers were known to be insolvent. On the other hand, they might have been unwilling to indorse them if they had known the makers were perfectly solvent. But the fact that these representations as to the indorsement did not aid the complaint could take nothing from the force of the allegations as to the representations in reference to the solvency of the makers; and as, in our opinion, those, if true, were such as to make the respondents liable in damages, the complaint stated a cause of action. The judgment will be reversed, and the cause remanded, with instructions to proceed in aecordance with this opinion.

ANDERS, SCOTT, and DUNBAR, JJ., con

cur.

and filed with said board by the local board of tide-land appraisers for King county. A general demurrer to the affidavit of plaintiff | for the writ was sustained, and plaintiff appeals. Affirmed.

W. T. Scott, for appellant. W. C. Jones and James A. Haight, for respondents.

ANDERS, J. In pursuance of a resolution of the city council, the city of Seattle applied to the board of state land commissioners to obtain a review and readjustment of the plat of the tide lands in front of the city, which was male and filed with the board by the local board of tide-land appraisers for King county, and especially a change of the direction and location of certain streets laid out by said local board, as indicated upon their plat. The board of state land commissioners declined to consider the petition, for the reason that, in its opinion, it had no right or authority to review the acts of the board of tide-land appraisers concerning streets. The city thereupon applied to the superior court of Thurston county for a writ of mandate to compel the board to proceed to hear and determine the matters set forth in its petition. The issuance of the alternative writ was waived by stipulation of the parties, and the respondents interposed a general demurrer to the affidavit of plaintiff for the writ. The demurrer was sustained, and, plaintiff declining to plead further, the proceeding was dismissed at the cost of plaintiff. From this judgment the city appealed.

By virtue of section 53 of the public lands act of March 26, 1895 (Laws 1895, p. 527), the terms of office of all members of the boards of tide-land appraisers expired on May 1, 1895; but, by the same section, such boards were required to complete by said date the work of surveying and appraising of tide lands of the the first class, upon which they were then engaged, in accordance with the act approved March 26, 1890. The act of March 26, 1895, went into effect on the day of its approval, and 11 days after the plat under consideration was filed with the state board. The work of the local board of tide-land appraisers was therefore completed before the act from which the present board of state land commissioners derives its power became operative, and the question here is, does this act confer authority upon the board of state land commissioners to review the act of the local board. in so far as it relates to the laying out of the streets sought to be changed by the city? Prior to the passage of the act of 1895 the local boards of tide-land appraisers were not authorized by any statute to locate streets upon tide lands. This power was first conferred upon them by section 53 of this act (page 550). But, of course, it was not contemplated that it should continue beyond the expiration of the terms of office of the members of the board; that is, May 1, 1895. The laying out and platting of these

streets was therefore done without express legal authority, but the action of the board in that regard was ratified and confirmed by section 54 of the act of 1895, which provides that ""* all alleys, streets, avenues, boulevards and other public thoroughfares heretofore located and platted on tide lands of the first class by boards of tide land appraisers, are hereby validated as public highways and dedicated to the use of the public for the purposes for which they were intended; and no improver, upland owner or other person, shall have the right to buy the whole or any part of any such alley, street, avenue, boulevard, or other thoroughfare. * The

streets, as located and platted, are, by force of this statute, public highways, and a careful examination of the whole act fails to disclose any power in the board of state land commissioners to relocate or change them. The state board is given power to review its own acts (section 102), and, under certain circumstances, to reappraise tide lands which were appraised by the local boards (section 62), but we find nothing in the law conferring upon it the authority to change established streets. Nor can such power be presumed from the fact that it now has the exclusive authority to survey, lease, and control the tide lands of the state. The judgment must be affirmed.

SCOTT and GORDON, JJ., concur.

(14 Wash. 438) PEARSON v. CITY OF SEATTLE. (Supreme Court of Washington. April 17, 1896.)

MUNICIPAL CORPORATIONS-CONSTRUCTION OF ORDINANCE-LICENSES-ESTOPPEL TO QUESTION INFORMALITY-REVOCATION-RECOVERY OF MONEY PAID BY LICENSEE-VERIFICATION OF CLAIM.

1. A public dance is a "public amusement," within the meaning of an ordinance to license and regulate "skating rinks, operas, concerts, *and other public amusements" conducted in a place adjoining to, and connected with, a saloon.

2. Where a person procures a license for the purpose of conducting a public dance in connection with a saloon, under an ordinance providing for the licensing of "public amuseinents," and conducts such dance for nearly a year without objection on the part of the city authorities, the city cannot claim that the license was invalid because it did not specify the kind of amusement and the particular place licensed, as required by the ordinance.

3. Where a city, after issuing a license authorizing the licensee to conduct public amusements in connection with his saloon, passes an ordinance prohibiting such amusements, the licensee may recover the unearned portion of the money paid for his license.

4. An action may be maintained on a claim filed with the city clerk and presented to the council, though not verified as required by the charter, where such claim was rejected solely on the ground that the city was not liable, and there is nothing in the charter forbidding an action to be maintained on an unverified claim.

Appeal from superior court, King county; R. Osborn, Judge.

Action by Charles Pearson against the city