The case at bar may be differentiated from those mentioned in the following particulars:

Here, the presumption that the auditor and treasurer will do their duty, and refuse to audit and pay the illegal demands, is negatived by the express averments of the complaint, which, for all the purposes of this case, are to be taken as true.

Here, the illegal tax will be levied and collected, and will become a lien upon the real property of the plaintiff, and is liable to cast a cloud upon the title thereof.

Here, the tax when levied and collected will cause such an intermingling of the lawful tax with the unlaw ful that it will be impossible to segregate them, and hence no action to stay the collection of the tax, or to recover back the money unlawfully exacted, can be maintained.

Even if money thus paid could be recovered, it would give rise to a multiplicity of suits, which it is an object of equity to avoid.

To refuse plaintiff relief here is but to lay the foundation later on when the tax is levied for saying to him that, the tax being fair on its face and there being no constitutional or statutory inhibition as to the extent of the levy, the amount or rate thereof is in the discretion. of the board of supervisors, and courts never interfere by injunction with the exercise of discretion by municipal officers.

Where a tax is levied for a specific object, and is upon its face in excess of the jurisdiction of the board or officers making the levy, and hence void, the matter can be reached by a writ of certiorari (review).

But it is apparent at a glance that no such relief can be had in a case like the present for the want of such illegality appearing on the face of the record.

We are of opinion that there is nothing in the cases of Linden v. Case, supra, and Merriam v. Board of Supervisors of Yuba County, supra, which militates against the right to an injunction in the case at bar.

The question still remains: Will a court of equity

restrain the levy and collection of an illegal municipal tax at the suit of a taxpayer and property holder? The authorities on the subject are not uniform, but, upon an examination of a large number of the adjudicated cases, we think the preponderance in number and reason is overwhelmingly in favor of the affirmative of the prop

osition.

Dillon in his work on Municial Corporations, fourth edition, sections 914-25, treats the subject at length, and reaches substantially the conclusion of the supreme court of the United States declared in Crampton v. Zabriskie, 101 U. S. 601, in which it was said by Mr. Justice Field, that "of the right of resident taxpayers to invoke the interposition of a court of equity to prevent an illegal disposition of the moneys of the county, or the illegal creation of a debt which they, in common with other property holders of the county, may otherwise be compelled to pay, there is at this day no serious question.

"The right has been recognized by the state courts in numerous cases; and from the nature of the powers exercised by municipal corporations, the great danger of their abuse, and the necessity of prompt action to prevent irremediable injuries, it would seem eminently proper for courts of equity to interfere, upon the application of the taxpayers of a county, to prevent the consummation of a wrong when the officers of these corporations assume, in excess of their powers, to create burdens upon property holders.

Certainly, in the absence of legislation restricting the right to interfere in such cases to public officers of the state or county, there would seem to be no substantial reason why a bill by or on behalf of individual taxpayers should not be entertained to prevent the misuse of corporate power. The courts may be safely trusted to prevent the abuse of their process in such cases."

The trend of nearly all the later cases is in the same direction. (Boyle v. New Orleans, 23 Fed. Rep. 843, 1885; Harrington v. Plainview, 27 Minn. 224; Willard v. Comstock, 58 Wis. 565; 46 Am. Rep. 657; Scott v. Alexander,

23 S. C. 120; Richmond v. Crenshaw, 76 Va. 936; Sackett v. New Albany, 88 Ind. 473; 45 Am. Rep. 467; Butler v. Detroit, 43 Mich. 552; Robertson v. Breedlove, 61 Tex. 316; see Dillon on Municipal Corporations, secs. 914-25, where the cases are collected.)

We conclude, then, that in a proper case municipal officers may, at the instance of a taxpayer, be restrained from contracting illegal debts and from levying and collecting taxes for the payinent thereof, and from enforcing the payment of such taxes.

This brings us to the consideration of the merits of the case at bar. The question presented seems a fairly plain one, and is approached only with that solicitude which follows from a realization of the momentous consequences flowing from its determination.

The question, briefly stated, is this: When the revenue of the city and county necessary for a given year has been determined, such revenue collected and expended, before the expiration of the fiscal year, can the city officers, for the purpose of providing for the pressing wants of the municipality during the residue of such year, incur debts and liabilities to be met and discharged from the revenues of a subsequent year?

A question somewhat similar in principle arose under the constitution of 1849, which inhibited the legislature from creating any debt in any way (except for the purposes and in the manner therein provided), which should, in the aggregate, with previous debts and liabili ties of the state, exceed three hundred thousand dollars.

The legislature appropriated money which, with the debt due and owing, constituted an indebtedness in excess of three hundred thousand dollars. And in People v. Johnson, 6 Cal. 499, the supreme court held that the attempted appropriation was in conflict with the constitutional provision and void.

It was urged there, as here, that if the constitutional restriction be rigidly enforced, a contingency may arise in which the wheels of government must stop for want of necessary funds to keep it in operation.

The court held, however, that the language of the article there quoted "is too clear and explicit to admit of but one interpretation," and added: "In fact, it would defy the ingenuity of the most subtle intellect to invent a consistent interpretation other than that which naturally suggests itself from the words of the article,"

etc.

We take much the same view of the section of our constitution quoted above. It is couched in language so plain and explicit as not to be misunderstood or to leave room for judicial interpretation or other inference than that naturally and irresistibly deducible therefrom.

The palpable object of the provision was and is to confine municipal expenditures for each year to the income and revenue of such year, save only in the cases where two-thirds of the qualified electors shall determine as in the section provided. It places a limit-a check-upon the power of municipal officers to expend money beyond the resources provided for the current

year.

It is a residuum of power vested in the electors, to be used by them in case of emergency calling for its exercise.

The motive which may influence municipal officers to impose a low rate of taxation, so soothing to the taxpayer, and to indulge in the practice of expending large sums of the people's money-a practice always popular with the recipients of public funds-is easily comprehended.

To thwart the possibility of such a course may have been an object of the framers of our constitution.

Be that as it may, one thing is certain: for causes which seemed good to the framers of our fundamental law, a barrier against indebtedness by municipal officers and local bodies has been created by the constitution. The door has been locked against all indebtedness of these local bodies, and the key placed in the hands of the electors, who alone can use it, and the judiciary may

CXII. CAL. - 35

not arrogate to itself the power to undo what has been thus solemnly done.

The wisdom or folly of the constitutional provision cannot, in a plain case, furnish us with a factor in the problem for solution.

Where the matter is clouded in doubt and uncertainty, such considerations may aid in its solution. We perceive no cause to doubt the object of the provision, or to draw but a single inference from the language used to express the legislative will as contained in section 18.

Counsel for respondent contend with much acumen. that the city and county government, having been organized pursuant to law, divided into various departments, and the duty of maintaining those departments devolved upon the supervisors by statutes and ordinances enacted prior to the commencement of the fiscal year 1894-95, no discretion, is now vested in the board, and that their plain and manifest duty is to provide those supplies and services, without which the city government cannot exist as an active entity, the disastrous consequence of which is vividly portrayed.

We answer this argument by saying the duty of the board of supervisors is, or may be, twofold: 1. To provide the funds and revenue to support the government; 2. To expend them for such support. The former is the predicate of the latter, without the performance of which primary duty no duty to expend the revenue can arise until the electors shall have authorized such expenditure by a two-thirds vote, etc.

It seems to us like a solecism to say that the duty to contract debts and liabilities on behalf of the city exists in a case where the constitution expressly inhibits it.

It is true that in Lewis v. Widber, 99 Cal. 412, it was held that the payment of the salary of a public officer, whose office has been created and salary fixed by a law of the state, is not within the prohibition of section 18 of article XI, which section, it was held, refers only to indebtedness or liability incurred by the act or conduct. of the municipal body.