time when the constitutional provision in question took effect; and merely to fund or refund an existing debt is not to "incur an indebtedness or liability." A bond is not an indebtedness or liability-it is only the evidence or representative of an indebtedness; and a mere change in the form of the evidence of indebtedness is not the creation of a new indebtedness within the meaning of the constitution. (Opinion of Judges, 81 Me. 602; Hotchkiss v. Marion, 12 Mont. 218; Commissioners of Marion County v. Commissioners etc., 26 Kan. 181, 201; Poughkeepsie v. Quintard, 65 Hun, 141.) The case of Doon Tp. v. Cummins, 142 U. S. 366, appears to be opposed to this view; but we are unable to assent to the reasoning of the majority of the court in that case, and think that the correct rule is stated in the dissenting opinion. Moreover, the state had no more power, by adopting a constitution, to impair the obligation of the contracts by which cities had previously incurred indebtedness than it had to impair it by a mere statute. It is true that to take away a remedy previously allowed does not always impair the obligation of a contract. But a reasonably efficient remedy must be left; and, in a majority of cases, the only way in which municipalities can pay their debts is by issuing funded bonds. Even then, if the state had power to forbid the funding of a prior indebtedness, except upon new and perhaps impossible conditions (a concession which we are not prepared to make), it certainly will not be presumed, in the absence of a clear and explicit declaration to that effect, that the framers of our state constitution intended such a result. The clause in question does not necessarily require such an interpretation; and we are of opinion that it does not apply to the funding of any then existing indebtedness.

It follows that, as to any indebtedness of the city of Los Angeles outstanding on the first day of January, 1880, sections 4445 to 4449 of the Political Code provide the method to be pursued in funding or refunding the The petition in the present case, however, does

same.

not allege that any of the indebtedness in question was outstanding on that day; and we cannot presume, in favor of the pleader, that such was the fact. It is, therefore, necessary to inquire whether the bonds in question are authorized by any other statute.

On March 15, 1883, an act was passed (Stats. 1883, p. 370) authorizing the governing body of every municipal corporation, other than cities of the first class, to fund or refund any indebtedness of the corporation by a vote of four-fifths of their number. That act authorized the issue of bonds, to be exchanged for any existing indebtedness, or to be sold for money to be applied to the payment of such indebtedness.

It is contended that this act violates the provisions of the constitution against special legislation. But there can be no question that the act classifying municipal corporations is constitutional (Prichett v. Stanislaus County, 73 Cal. 310), and that in matters pertaining to municipal organization the legislature may make different regulations for the different classes so created (Pasadena v. Stimson, 91 Cal. 249.) The subject matter of the act in question-the funding of municipal indebtedness-is "peculiarly a matter pertaining to municipal organizations, and still more peculiarly a matter as to which cities of large population require different provision from that suitable to cities or towns of small population." The act is, therefore, not obnoxious to that objection.

It is also contended that the act is unconstitutional in failing to provide for submitting to voters the question whether the bonds shall be issued. It is true that as to any new indebtedness incurred after January 1, 1880, such a submission must be had; but it does not necessarily follow that any act of the legislature on that subject must contain that requirement. It is, we think, sufficient that, by any legislation, authority is given to the municipal government to call such an election, and that the election is actually called and held. Such authority is expressly given by sections 40, 197, 198,

199, and 200 of the charter of Los Angeles (Stats. 1889, p. 455), and, as we have seen, a valid election was actually called and held in this case. Indeed, it is probable that the constitutional provision requiring such election is, of itself, sufficient authority to the municipality for holding it-at least when read in connection with such an act as the one of 1883 here in question.

On March 1, 1893, an act was passed (Stats. 1893, p. 59) amending the act of 1883. By this amendment a submission to the voters was required in all cases, onefortieth (instead of one-twentieth) of the principal was required to be paid each year, and authority was given to make the bonds payable either at the office of the city treasurer, or at a bank in San Francisco, New York, Boston, or Chicago.

It is contended that this act also is invalid, as special legislation; but what we have said as to the act of 1883 on this question applies equally to this act. It is also claimed that the legislature could not authorize a debt payable in twenty years to be refunded into a debt payable in forty years; but we fail to discover any force in this contention, and no reason is suggested or authority referred to supporting it.

It is also contended that the provision authorizing payment of the bonds at a place other than the city treasury, and especially out of the state, is in contravention of sections 13 and 16 of article XI of the constitution, and therefore invalid. This provision, it is true, is severable, and its invalidity would not affect the rest of the act. But, as the bonds here in question are made payable at the Chemical National Bank in New York city, and as the ordinance authorizing them provides that they shall be so payable, it is necessary to examine that objection.

The sections of the constitution referred to were construed in Yarnell v. Los Angeles, 87 Cal. 603; and it was there held that the provision in the charter of that city authorizing the council to appoint a bank in that city,

as a depositary of the public funds, was a violation of those sections, and wholly invalid. We are unable to distinguish that case from the present one, and we think the reasoning there employed applies with at least equal force to this case. If the principal and interest of these bonds is to be paid at a bank in the city of New York, that thing can be accomplished only in one of two ways: Either the city treasurer must go, in person, to New York, carrying the money with him, and there pay it out, or he must remit the money by express, draft, or some other mode to that bank, and authorize that bank to make the payment. There is no law which authorizes the city treasurer to go to New York (in the present case semi-annually), and take with him the public moneys; and, in the absence of such a law, he certainly has no such power. Even if it be conceded (which is not clear) that the legislature is competent to authorize any officer to perform any part of his duties without the state, it has not attempted to confer any such authority in this instance; and there is, therefore, no other alternative than to remit the money to the bank in New York, and make that bank the agent of the city to pay the bonds and coupons. But this is precisely what is forbidden by the constitution, and is, as we regard it, a graver infraction of its provisions than that considered in Yarnell v. Los Angeles, supra. We are therefore of opinion that the bonds in question, and the ordinance authorizing them, are clearly invalid, and that the defendant cannot be required to sign them.

This conclusion renders it unnecessary to consider the effect of the amendment of 1895 (Stats. 1895, p. 203) to section 1 of the act of 1893. The questions arising under that act are important, and have not been adequately presented by counsel; and we therefore leave them for consideration in some case in which they are properly involved.

The demurrer to the petition is, for the reasons suggested, sustained, and the writ dismissed.

MCFARLAND, J., GAROUTTE, J., TEMPLE, J., and HENSHAW, J., concurred.

HARRISON, J., concurring.-I concur in the judgment, and also in that portion of the opinion of Mr. Justice Van Fleet in which he discusses the effect of the provision in the ordinance making the interest upon the bonds payable out of the state.

I am of the opinion, however, that the recitals in the ordinance respecting the bonds which are to be refunded. sufficiently show that a portion thereof were issued prior to the year 1880, and another portion subsequent to that year. It is unnecessary, therefore, to determine whether section 4445 of the Political Code is still in force, as that section by its terms authorizes the issue. of bonds for the sole purpose of refunding an indebtedness which existed on the first day of January, 1880, while the bonds sought to be issued by the proceedings. under consideration are for the purpose of refunding an indebtedness of which the greater portion did not exist at that date.

The act of 1883, as amended in 1893 (Stats. 1893, p. 59), and under which the proceedings were had, was again amended in 1895. (Stats. 1895, p. 203.) The effect of this amendment was to deprive the city council of all power to issue refunding bonds, except in accordance with its terms; and the latter act is the sole authority by which to determine the power of a municipality to issue any refunding bonds, as well as the mode in which that power is to be exercised. This act was adopted March 27, 1895, and took effect immediately, and, although the election by the voters of Los Angeles was held March 21, 1895, the vote was not canvassed until April 1st, and the ordinance for the issue of the bonds was not adopted until April 8th. As no contract had been entered into, and no vested right had accrued by reason of the steps that had been taken for the issuance of these bonds, the effect of the act of 1895 was to repeal all the provisions for their issuance that were not pre