acceptance had not been filed within the 10 days prescribed, but it did not do so. It allowed the construction of the waterworks in accordance with the terms of the ordinance, and proceeded to use and enjoy the water furnished thereby. For a number of years the ordinance was treated as valid and binding in every respect. There was no suggestion in connection with the evidence offered that Gibson had or could lawfully have voted as to the acceptance at the meeting held on April 12th. Under these circumstances, there was a waiver of any defect so far as the acceptance was concerned.

Was the contract void because it granted an exclusive right or fixed the hydrant rates for an unreasonable length of time? It is to be borne in mind that there is no one in this proceeding claiming under any right conflicting with relator's to supply the city of Great Falls and its inhabitants with water. The attitude of the city is simply this: It desires and contemplates a continuance of the use of the water supplied by relator, but insists upon such use upon its own terms, regardless of the original contract. The situation is entirely different from what it would be were the exclusive or unreasonable feature of the franchise being attacked prior to the performance of the terms of the contract. Contracts establishing fixed rates of payment, or granting exclusive rights for a long term of years to supply the needs of cities, should be always closely scrutinized by the courts when directly attacked, before substantial rights have vested through performance. It is true, the question for what length of time a city council may lawfully enter into such contracts depends largely for its answer upon the facts and conditions involved in each particular case. spondents contend that, for the last-mentioned reason, the trial court should have allowed them to show the promising future of the city at the time the contract was entered into, and the probability that a much more favorable water contract could have been obtained. But what if it had been shown that the city officials acted unwisely as to the terms of the contract? Rights have vested through the performance of many of said terms. No fraud is alleged, or even suggested, on the part of the members of the city council, other than the mayor, in entering into this contract. From March 27, 1889, up to August, 1896, for a period of more than seven years, no objection was raised (so far as the record discloses) in any manner to this contract. Bonds had been issued on the water company's plant, and money realized from the sale of bonds expended thereon. There was no error in the exclusion of this evidence.

Re

Respondents urge: "Counsel for appellant seem to contend that we cannot now raise the -defense of unreasonableness of contract. If this were a proceeding for the payment of past hydrant rentals alone, there would be some force in the proposition. But this is more. This proceeding is brought to obtain,

and the trial court granted, a mandamus to compel not only an allowance of the claim for past-due rentals, but also to compel the levy of a tax and an appropriation of sufficient money to pay rentals maturing for the year ending May 1, 1898. If this is to be upheld, it is only on the theory that the contract is valid for the entire period of time covered by its terms." The city in this proceeding is not seeking to use water to be supplied by other means than the relator's plant. It neither contemplates nor suggests the supply of water to it by other means; and no rival in the water business, seeking the patronage of the city, attacks this contract under a right or privilege antagonistic to it. The city virtually accepts the results of this contract in part,-so far as they are beneficial to it,-even while protesting that it is void ab initio. In Davenport v. Kleinschmidt, 6 Mont. 502, 13 Pac. 249, it was held that an ordinance of the city of Helena was void because it granted the exclusive right to supply said city with water for fire and sewerage purposes at fixed rates for a period of 20 years. The court granted a perpetual injunction at the prayer of certain taxpayers, to prevent the carrying out of the terms of the ordinance. But this was done before any work had been commenced under the contract embodied in the ordinance. For special reasons in that case, it was not determined whether the Helena ordinance was severable in respect to what was valid and what invalid in its provisions. We do not deem it necessary to decide, under the existing condition of facts presented by this appeal and the law applicable thereto, whether the exclusive 15-year privilege granted in Ordinance No. 17 is void or not, either on the ground of monopoly or unreasonableness of time in prescribing fixed hydrant rentals. The city is estopped in its individual capacity by its present attitude from availing itself of this defense. Nor is it necessary to determine any question which may arise in the future as to whether the relator can insist upon a renewal of the ordinance contract at the expiration of the 20 years prescribed therein, if the city of Great Falls does not purchase this water plant. We must decide the controversy only on the phase of it as presented at this time.

The law as announced in the case of Illinois Trust & Savings Bank v. City of Arkansas City, 76 Fed. 271, 22 C. C. A. 171, is peculiarly applicable in many respects to the present

case.

We quote from it the following applicable language: "Moreover, the city is in no position in this case to insist upon the invalidity of the exclusive character of this grant, if that could avoid its entire contract. The city is not endeavoring to construct waterworks or to lay pipes in its streets in violation of its exclusive grant to the gas company, nor is any one attempting to do so under its license or by its permission. No one seeks to infringe this exclusive grant. In practical effect it stands unchallenged, and may ever continue to be so. Until it is challenged by the

act or endeavor of some one who seeks to infringe it, its validity or invalidity is a moot question, on account of which the courts ought not to, and will not, avoid any part of the contract. No one who does not infringe or threaten to infringe the exclusiveness of the grant in a contract made by a municipality can, after the substantial performance of the contract by the grantee, be heard to say that the contract or the grant is void on account of the exclusive character of the latter. [Authorities cited.] But it is insisted that this contract is beyond the powers of this city, and void, because it grants the right to use the streets of the city to the water company, and promises to pay rental for the hydrants, for twenty-one years. The proposition on which this contention rests is that the members of the city' council are trustees for the public; that they exercise legislative powers; and that they can make no grant and conclude no contract which will bind the city beyond the terms of their offices, because such action would circumscribe the legislative powers of their successors, and deprive them of the right to their unrestricted exercise as the exigencies of the times might demand. There are two reasons why this proposition cannot be successfully maintained in this case: First. It ignores the settled distinction between the governmental or public and the proprietary or business powers of a municipality, and erroneously seeks to apply to the exercise of the latter a rule which is only applicable to the exercise of the former. A city has two classes of powers: The one legislative, public, governmental, in the exercise of which it is a sovereignty, and governs its people; the other, proprietary, quasi private, conferred upon it, not for the purpose of governing its people, but for the private advantage of the inhabitants of the city and of the city itself as a legal personality. In the exercise of the powers of the former class, it is governed by the rule here invoked. In their exercise, it is ruling its people, and is bound to transmit its powers of government to its successive sets of officers unimpaired. But, in the exercise of the powers of the latter class, it is controlled by no such rule, because it is acting and contracting for the private benefit of itself and its inhabitants; and it may exercise the business powers conferred upon it in the same way, and in their exercise it is to be governed by the same rules that govern a private individual or corporation. [Authorities cited.] In contracting for waterworks to supply itself and its inhabitants with water, the city is not exercising its governmental or legislative powers, but its business or proprietary powers. The purpose of such a contract is not to govern its inhabitants, but to obtain a private benefit for the city itself and its denizens. Second. The powers granted to this city by the legislature of the state of Kansas to contract for and procure waterworks are plenary and unlimited, save by the duty to exercise them with reasonable discretion; and it is not the province of a court to contract

or clip the legislative grant." We are satisfied that these reasons apply generally to this appeal.

The case of Davenport v. Kleinschmidt, supra, refers to the distinction between the character of a city considered in its individ ual and its governmental capacity. See page 534, 6 Mont., and page 256, 13 Pac. The court expressly refused to hold the Helena ordinance void, because it restricted the future legislative powers of the city council. Appellant says, in its brief: "In the case of Davenport v. Kleinschmidt, 6 Mont. 502, 13 Pac. 249, the court distinguishes the cases of Burlington Water Co. v. Woodward, 49 Iowa, 59, and Grant v. City of Davenport, 36 Iowa, 401, and uses the following language: 'In all of the water cases arising in the state of Iowa, we are met with a general statute which authorized all cities to contract for the erection of waterworks, and to pay for the water used by special fund, raised by a special annual tax, not to exceed five mills on the dollar; and such contracts with water companies were held not to create a debt against the cities, because the water companies would never have any general claim against the cities, but were held to look to the special fund alone for the satisfaction of their demands.' After the decision in this case, and in the year 1889, the legislative assembly of the territory of Montana passed the act hereinbefore quoted, conferring upon cities the power to levy and collect a tax not to exceed five mills on the dollar for fire and water purposes."

The act of the legislature referred to (See Sess: Laws 1889, p. 185, § 16), is as follows: "That section four hundred and fifteen, as amended by 'An act to amend an act relating to the formation of municipal corporations,' be amended so as to read as follows: 'Section 415. The amount of corporation taxes to be assessed and levied in any one year on the taxable property of any city or town for general municipal or administrative purposes shall not exceed three-fourths of one per centum, and for fire and water purposes one-half of one per centum on the assessed valuation of such property and such special assessments as may be levied from time to time as provided for under chapter twenty-two, fifth division of Compiled Statutes of Montana, and the amendments thereto.'" This law was in force when Ordinance No. 17 was passed, approved, and accepted. We are of the opinion that this law became a part of the contract embodied in said ordinance, and that relator had a right to insist that, in so far as might be necessary to pay what was due it for hydrant rentals in accordance with the rates prescribed in the ordinance contract, a special tax, as provided for in that act, should be levied annually; of course, in only such sums as would be needed, and not exceeding the five-mill limit. The contract was entered into in contemplation of a special fund

being created by the city to meet liabilities incurred thereunder; and the legislature, in said act, contemplated at the time that cities of the territory should pay for water used by them for sewerage and fire purposes from taxes levied and collected for that specific purpose. The case of Davenport v. Kleinschmidt, supra, does not disapprove the Iowa cases holding that, because a general law provided for payment from a special fund, a liability incurred by a city to supply its inhabitants with water was not a debt, in the sense of the term as employed in the constitution of Iowa, forbidding cities to incur debts in excess of a certain proportion to their assessable property. It was under different conditions of law and fact that the supreme court of the territory of Montana held in Davenport v. Kleinschmidt that the liability incurred by the city of Helena under its ordinance contract was a debt. This appears from a careful reading of the case. Respondents urge: "The provisions of section 27, containing the agreement of the city to pay the hydrant rentals to the bondholders, and requiring a certificate of such agreement on the back of each of the bonds, is an attempt to loan to the company the credit of the city, in violation of Act Cong. 1886, § 2 (Comp. St. Mont., at page 32)." This section referred to is as follows: "That no territory of the United States now or hereafter to be organized, or any political or municipal corporation or subdivision of any such territory, shall hereafter make any subscription to the capital stock of any incorporated company, or company or association having corporate powers, or in any manner loan its credit to or use it for the benefit of any such company or association or borrow any money for the use of any such company or association." We hold that the act of congress was not violated by section 27 of the ordinance, and the action of the city thereunder as to its certificate on the bonds.

It follows, in this view of the case, that neither under the organic act of the territory of Montana, nor the constitution of the state of Montana, is or was the liability incurred by the city of Great Falls under Ordinance 17 a debt in the sense prohibited. After rights had vested under the act of the legislative assembly passed in 1889, supra, neither the legislature nor the people of Montana, by adopting a constitution, could have impaired the contract obligation attaching. The constitution of the United States forbids this. See Wolff v. New Orleans, 103 U. S. 358, and Von Hoffman v. City of Quincy, 4 Wall. 535.

Does the alternative writ contain allegations showing a cause of action which would entitle relator to a writ of mandamus? Yes. Did relator have any plain, speedy, and adequate remedy in the ordinary course of law? It did not. Mandamus was clearly the remedy. Mandamus, even in the common-law view of it, long ago ceased to be a prerogative writ,

and became gradually, both in the English and American courts, to be regarded and interpreted as a writ of right. Since the breaking down by the Codes of so many of the formal barriers between equity and law, the remedy by mandamus, however different its legal history from the writ of injunction, is none the less elastic and adaptable within its proper sphere, as the latter is within its sphere. The function of each is by summary legal intervention to prevent wrongdoing. The one sets

the law in motion to compel the doing of what should be done; the other prevents or checks threatened or actual wrongdoing. Each serves the ends of justice practically. Each is a developed remedy, adapted to modern needs and ideas; and, when the proper occasion demands either, the writ should be issued readily, without regard to any mere lifeless distinctions of past history.

Sections 1961 and 1962 (relating to mandamus), Code Civ. Proc. Mont. 1895, are as follows:

"Sec. 1961. It may be issued by the supreme court or the district court, or any judge of the district court, to any inferior tribunal, corporation, board or person, to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust or station; or to compel the admission of a party to the use and enjoyment of a right or office to which he is entitled and from which he is unlawfully precluded by such inferior tribunal, corporation, board or person.

"Sec. 1962. The writ must be issued in all cases where there is not a plain, speedy and adequate remedy in the ordinary course of law. It must be issued upon affidavit, on the application of the party beneficially interested."

Under said section 1961, the issuance of the writ does not depend upon the exercise of a mere discretion on the part of the court or judge, regardless of the question of whether there exists a plain, speedy, and adequate remedy in the ordinary course of law. The discretion should be exercised in connection with the answer to that question. But, under section 1962, if there is not a plain, speedy, and adequate remedy in the ordinary course of law, then there is no discretion. The court or judge must issue the writ.

Had the city of Great Falls anything before it to be determined or decided when relator's claim for hydrant rentals was acted upon, on October 5 and November 2, 1896? No. The question of the number of hydrants had been decided months previously, and payment had been made for 251 hydrants up to May 1, 186. The answer itself concedes that the mains to an extent requiring 251 hydrants had been laid under the direction of the city government. The city's own records establish the fact, and the trial court found, that 251 hydrants had been placed and accepted along these mains. The evidence offered to prove that 3 of these hydrants were outside of the city limits, and that 6 others were in an addi

tion to the city, and maintained under a special agreement, and that 13 others were below the surface of the ground, and therefore inaccessible for fire and sewerage purposes, was all properly excluded. There was no averment in the answer laying any foundation for evidence to contradict the city's own records, kept presumably in accordance with the law requiring them to be kept. If the city is dissatisfied by reason of defects in any hydrants, it certainly, under the terms of its contract, can remedy the same. So far as the three hydrants outside of the city limits are concerned, they may be so near the city limits as to be necessary at those points for the protection of the city.

The evidence offered to show that relator had no city or county license was also properly excluded on the trial. There was no allegation in the answer to support its admission, and it was improperly sought to be elicited on cross-examination.

The offer to show that impure and unwholesome water had been furnished the inhabitants of the city was wholly immaterial. The point from which the water was to be taken by the relator had been expressly agreed upon in the ordinance, and there was no issue as to the quality of the water furnished.

The objection that there was a defect of parties, averred in the answer, and sought to be maintained on the trial, came too late. No advantage was taken of any defect by demurrer, as the Code of Civil Procedure provides it shall be taken. To prevent any possible injustice to the city in this respect, however, proper provision can be made in the writ which we shall direct to be issued. Relator was clearly beneficially interested in the enforcement of the ordinance.

The objection that the alternative writ fails to contain any allegation in compliance with section 4808, Pol. Code Mont., requiring an affidavit reciting certain facts as to the interests of the parties in the claim presented, is without merit.

The conclusion is unavoidable that the sole and only reason prompting the city council to reject the claim of relator on October 5 and November 2, 1896, was to repudiate the contract; and the other possible reasons suggested to uphold its action are without merit. We cite Wood v. Strother, 76 Cal. 545, 18 l'ac. 766, in this connection; also, People v. Supervisors of Otsego Co., 51 N. Y. 401.

As to the question of whether or not the city was properly commanded to levy sufficient taxes for the year ending May 1, 1898, our view is as follows: The city had announced that it repudiated the water contract, but still clung to the use of the water furnished by the relator's plant. Under these circumstances, the command was a proper one. It is clear to us that relator, under all these conditions we have set forth, had no plain, had no speedy, and had no adequate, remedy in the ordinary course of law. The judge who granted the new trial should not

1. The issuance of funding bonds by a county in exchange for outstanding valid warrants is not the creation of a debt.

2. Where a county, under authority of the funding act of 1881, issued a bond in exchange for outstanding valid warrants, its validity could not be affected by the fact that other bonds in the same series, issued in exchange for invalid warrants, were unauthorized and void.

3. Under a constitutional limitation as to the amount of its indebtedness, based on its assessed valuation, a county's power to incur indebtedness is measured by the assessment for the current fiscal year, till the succeeding assessment is revised by the state board of equalization, and the necessary changes and corrections are made and certified to the clerks of the respective counties.

4. Where a warrant was issued after a county had reached the constitutional limit of its indebtedness, the county must show, if it would avoid the warrant, that it was issued for a debt then incurred, and not one incurred before the limitation was reached.

5. Where a series of refunding bonds was issued in excess of the constitutional limitation on the county's indebtedness, and the validity of the several bonds depended on the validity of the warrants exchanged for them, a holder of a part of the bonds may sue at law, and show the validity of the original warrants exchanged for his bonds.

6. The fact that, while the cause of action is based on the bonds themselves, their validity must be established by evidence showing the validity of the original warrants, does not constitute a variance.

Appeal from district court, Lake county.

Action by Joseph Standley against the board of commissioners of Lake county. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

This is an action brought by the appellee against the appellant, upon certain coupons aggregating the sum of $6,400, and being for interest on certain bonds issued by Lake county on the 2d day of January, 1882. The complaint in substance avers: That on the 1st day of January, 1882, one Thomas Corbett was the owner and holder of certain warrants of the county of Lake, which were in amount, number, and date as follows: No. 484, for the sum of $589.12, dated July 17, 1879; No. 578, for the sum of $2,500, dated September 1, 1879;

No. 590, for the sum of $800, dated October 2, 1879; No. 599, for the sum of $1,100, dated October 9, 1879; No. 601, for the sum of $1.000, dated October 9, 1879; No. 603, for the sum of $1,000, dated October 9, 1879; No. 605, for the sum of $1,000, dated October 9, 1879; No. 994, for the sum of $347.50, dated October 9, 1879. That said warrants were duly issued for and on account of indebtedness incurred and contracted a long time before the issuance thereof, to wit, on April 26 and on May 3, 1879, and on dates subsequent thereto, and before the valuation of the property of Lake county had reached the amount of $1,000,000. That they had been presented and registered in accordance with the statutes in such case made and provided. That said warrants were valid, and evidenced an indebtedness within the constitutional limitation. That the assessed value of the property in Lake county for the year 1877 was $364,511.40, and for the year 1878 $603,858.92. That on the 1st day of January, 1882, there was due on the warrants above mentioned, for principal and interest, the sum of $10,232.70. That on that date the county of Lake, in compliance with the provisions of the statute in such case made and provided, proceeded to fund the indebtedness of said county, and issued therefor funding bonds of said county, with interest coupons attached, and thereupon delivered to said Corbett 10 bonds for $1,000 each, in exchange for the said warrants above mentioned. These bonds were numbered as follows: 185, 186, 187, 188, 189, 190, 193, 194, 195, and 196,-which were duly sold, transferred, and assigned to this plaintiff, who is now, and ever since has been, the owner and holder of said bonds and the conpons thereto attached. That the county of Lake paid all the coupons upon each of said bonds up to the coupons following the date of July 1, 1885. That since that time the county of Lake has failed, refused, and neglected to pay any of said coupons, and that there is now due from said county, on each of said bonds, 16 coupons, of $40 each, for and on account of interest on the bonds above mentioned. A demurrer to the complaint was interposed and overruled. Thereupon the defendant answered, specifically denying and admitting certain allegations of the complaint, and, among other affirmative defenses, averred that, at the time the indebtedness evidenced by said warrants and bonds accrued (except the sum of $589, due July 17, 1879), the assessed valuation of said county exceeded $1,000,000; and that the aggregate amount of the indebtedness of said county, exclusive of the debts contracted before the adoption of the constitution, exceeded at that time the sum of $6 on each $1,000 of said valuation. Defendant further averred that the assessed valuation of the county of Lake for the year 1879 was the sum of $3,485,628, for the year 1880 the sum of $11,426,189, for the the year 1881 the sum of $16,423,403, subsequently and in the year 1882 rebated to $5,017,000; that the floating indebtedness of said county for the year 1879 was $86,146.81, and

for the year 1881, exclusive of the bonded indebtedness, was the sum of $312,562.58; for the year 1881, up to and including the 6th day of September, 1883, the floating indebtedness of said county (exclusive of its bonded indebtedness, then amounting to $55,000) was $500,000; that the amount of indebtedness of said county which the board of county commissioners could alone have funded, and the question of funding which could have been submitted to the lawful voters of said county at the election of 1881, was the sum of $15,000 (assuming said bonded indebtedness to be void); yet the board of county commissioners of said county, wrongfully and unlawfully, issued bonds to the amount of $500,000, of which the bonds of plaintiff were a part. Plaintiff, by replication, specifically denied the material averments of the answer.

Upon the trial, the following agreed statement of facts was admitted in evidence: "For the purposes of trial of this action, the following facts are hereby stipulated and agreed upon, and the same are to be admitted in evidence, so far as they are relevant, competent, and material under the issues joined: First. It is agreed that the warrants mentioned in the complaint herein, as having been presented by Thomas Corbett for the purpose of exchange into bonds, were in numbers, amounts, and dates as stated in said complaint. Second. That said warrants and the interest thereon were converted into bonds as a part of the bond issue of Lake county, amounting to $500,000 in 1882; and said warrants were exchanged for bonds of that issue, which were afterwards, and have been, duly numbered 185, 186, 187, 188, 189, 190, 193, 194, 195, and 196, and that the preceding bonds, numbered from 1 to 184, inclusive, had been issued before that time, and were for $1,000 each; the whole being a part of said bonded issue of $500,000, all of which were issued practically at the same time, in 1882. Third. It is agreed that the said Joseph Standley is the owner of said bonds, and acquired such ownership before the commencement of this suit, and without notice as to their invalidity, except implied notice, arising from the face of said bonds, the statutes, records, and proceedings leading up to the issuance of said bonds, and in exchange for said warrants, paying a valuable consideration therefor. Fourth. That, at the time and before the commencement of this suit, the said coupons were in default; that is to say, were unpaid. Fifth. It is agreed that the assessed valuation for Lake county for the years 1877 and 1878 was as stated in the complaint when completed. Sixth. That the assessed value of sald Lake county for the years 1879, 1880, 1881, 1882, and 1883 was as stated in the answer when completed. Seventh. As no statement is contained in the pleading as to the amount of indebtedness during the years 1878 or 1879, it is agreed that the amount shown by the books kept by the county clerk of said county may be used in evidence for the purpose of