chargeable against the county which have been legally examined, allowed, and ordered paid by the board of commissioners; also, for all debts and demands against the county when the amounts are fixed by law, and which are not directed to be audited by some other person or tribunal.

"Sec. 2006. All warrants must distinctly specify the liability for which they are drawn, and when it accrued."

"Sec. 2009. All warrants issued by the auditor during each year commencing with the first Monday in January must be numbered consecutively, and the number, date, and amount of each, and the name of the person to whom payable, and the purpose for which drawn, must be stated thereon, and they must at the time they are issued be registered by him."

And by section 1840 the county treasurer is required to, among other things, "disburse the county moneys only on county warrants issued by the county auditor; based on orders of the board of commissioners, or as otherwise provided by law."

Sections 4050 to 4056, inclusive, prescribe the periods for the commencement of actions other than for the recovery of real property; and by section 4057 it is provided that "actions on claims against a county which have been rejected by the board of commissioners, must be commenced within six months after the first rejection thereof by such board."

It is thus seen that the state of Idaho has by statute conferred upon the board of commissioners of the county the power to, among other things, examine, settle, and allow all accounts legally chargeable against the county, and order warrants to be drawn on the county treasurer therefor, and has expressly declared that all such warrants "must distinctly specify the liability for which they are drawn, and when it accrued." Is any court justified in treating such language as merely directory? We think not. It is well settled that, if the statute under which a municipal corporation is organized and acts prescribes a particular mode in which the property of the corporation shall be disposed of, that mode must be pursued. Dillon on Municipal Corporations (4th Ed.) §§ 463, 578, and 563. The state of Idaho, as has been seen, authorized the board of commissioners of the defendant county to allow only legal claims against it, within which claims barred by its statute of limitations would not come. Carroll v. Siebenthaler, 37 Cal. 193. And it has been held that, even though the governing board of a county should allow illegal claims, it is the duty of the auditor to refuse to draw warrants therefor, and, if warrants are drawn, it is the duty of the treasurer to refuse to pay them. Linden v. Case, 46 Cal. 171; Merriam v. Board of Supervisors of Yuba County (Cal.) 14 Pac. 137; Trinity County v. McCammon, 25 Cal. 121.

In McCormick v. Bay City, 23 Mich. 457, it was held that a city treasurer was not entitled to credit for moneys paid upon warrants which were not drawn in accordance with the provisions of the charter. There was therefore good and substantial reason for the requirement of the statute in question that all warrants issued upon claims allowed against the county "must distinctly specify the liability for which they are drawn, and when it accrued." Language so imperative and mandatory does not, in our opinion, admit of its being held merely directory. And such was the holding of the Supreme Court of California in the case of Merriam v. The Board of Supervisors of Yuba

County, supra, in respect to the provision of the county government act of that state, declaring that "all warrants must distinctly specify the liability for which they are drawn, and when it accrued." The same opinion was also expressed by Judge Field in Argenti v. San Francisco, 16 Cal. 276, on the petition for rehearing in that case, where he said:

"The warrants by themselves furnish no ground of recovery. They are neither bills of exchange nor promissory notes. They are drawn against a particular fund, and are not payable absolutely, but only in case the designated fund is sufficient to meet them. Besides this, a large number of the warrants do not comply, in their form, with the requirements of the charter in force at the time. The eighth section of the third article of that charter provides that 'every warrant upon the treasury shall be signed by the controller, and countersigned by the mayor; and shall specify the appropriation under which it is issued, and the date of the ordinance making the same. It shall also state for what purpose the amount specified is to be paid.' Many of the warrants neither specify the appropriations under which they were issued, nor the date of the ordinances making the same. They would not, therefore, constitute any authority to the treasurer to pay them, even if there were funds in the treasury specially appropriated for their payment. The warrants must therefore be laid out of consideration in determining the case, and the right of the plaintiff to recover must turn upon the sufficiency of the claim arising from the alleged contracts with the city, or for the moneys alleged to have been received by the city for his use."

Smeltzer v. White, 92 U. S. 390, 23 L. Ed. 508, was an action against the counties of O'Brien, Buena Vista, and Clay, of the state of Iowa, growing out of certain warrants purporting to have been issued by those counties, payment of which was refused. It appeared that prior to 1860 the county judge had the management of the business of the county, with the usual powers and jurisdiction of county commissioners, and the county funds were authorized to be paid out by the treasurer only upon warrants issued by him. Revision 1860, §§ 241, 243, 360. It was made his duty "to audit all claims against the county; to draw and seal with the county seal all warrants on the treasurer for money to be paid out of the county treasury." Code 1851, § 106. The treasurer was authorized to pay only warrants thus drawn and sealed. The language of the statute was, "The treasurer shall disburse the same [the county money] on warrants drawn and signed by the county judge, and sealed with the county seal, and not otherwise." In 1860 the powers and duties of the county judge in this respect were transferred to a county board of supervisors (Act March 22, 1860; Rev. St. § 312, et seq.); and the clerk of the district court was constituted their clerk, and required to sign all orders issued by the board. The Supreme Court said:

"Now, as the treasurer can pay no orders or warrants unless they are sealed with the county seal, and as all warrants were required to be sealed by the county judge until 1860, when the board of supervisors was charged with his duties, except that their warrants are required to be signed by their clerk, it is very evident that no warrant is a genuine county warrant which is unsealed with the county seal. The statute expressly requires the board of supervisors, in all cases where the powers conferred by the act upon the board had been before exercised by the county judges, to conduct their proceedings under said powers in the same way and manner as had been provided by law in such cases for the proceedings of the county judge. Revision 1860, § 325. It is too clear, therefore, for debate, that the genuineness and regularity of issue of county warrants can exist only in cases when the

warrants are sealed with the county seal; and so it has been decided by the Supreme Court of Iowa, substantially, both in Prescott v. Gonser, 34 Iowa, 178, and in Springer v. The County of Clay, 35 Iowa, 243."

Again the court in that case said:

"The fifth assignment is that the court erred in overruling the defendant's offer to show that the warrants were regularly issued for legal claims against the county. The offer, we think, was correctly overruled. The evidence proposed had no relevancy to the issue in the case. That the warrants were issued for debts due by the county was of no importance if they were not genuine, and in the form that the law required to enable the holder to set them up as legitimate claims against the county. What availed it to the plaintiff that the county owed the sums of money mentioned in the warrants, if the warrants were nullities? His only means of recovering the money was through the warrants."

It is true that in Smeltzer v. White the required seal of the county constituted a part of the execution of the warrants, but we think that no very substantial distinction can be made between such a case and one where the warrants omit other matter made by the statute essential to their validity.

The present action being based solely upon the alleged warrants, and as they omit matter made essential by the statute of the state under which they purported to have been issued, they must be adjudged invalid. Being void, they were not the subject of ratification, and were unaffected by the resolution of the board of commissioners of the county embodied in the ninth finding of the court below. Dillon on Municipal Corporations (4th Ed.) § 465.

The judgment is reversed, and the cause remanded to the court below, with instructions to enter judgment for the defendant on the findings, with costs.

FLANIGAN v. SIERRA COUNTY.

(Circuit Court of Appeals, Ninth Circuit. March 4, 1903.)

No. 832.

1. FEDERAL COURTS-FOLLOWING STATE DECISIONS-VALIDITY OF STATUTES. The decisions of the Supreme Court of California sustaining the constitutionality of county ordinances imposing license taxes for revenue, enacted pursuant to Act April 1, 1897 (St. Cal. 1897, p. 465, c. 277), are binding on the federal courts, and will be followed where similar ordinances enacted under the same statute are involved.

2 LICENSES-ACTION TO RECOVER FEES-EFFECT OF REPEAL OF STATUTE. Act April 1, 1897 (St. Cal. 1897, p. 465, c. 277), authorized county boards of supervisors to pass ordinances "to license, for purposes of regulation and revenue all and every kind of business not prohibited by law and transacted and carried on in such county to fix the rates of license tax upon the same and to provide for the collection of the same, by suit or otherwise." In 1900 a county adopted an ordinance which, inter alia, required a license to keep sheep in the county, and the payment of an annual license fee of 10 cents per head therefor. Shortly afterward, an action was brought to collect the license fee due under said ordinance from a sheepowner. March 23, 1901, and pending such action, an act (St. & Amend. to Codes 1901, p. 635, c. 209, § 3366) was passed, which by implication repealed the act of 1897 in so far as it

11. See Courts, vol. 13, Cent. Dig. § 957.

authorized county boards to collect a license tax for revenue. Held, that such act was not retrospective in operation, and did not abate the pending action for collection of the tax, the right to which had previously become vested in the county.

In Error to the Circuit Court of the United States for the Northern District of California.

A. E. Cheney and Campbell, Metson & Campbell, for plaintiff in

error.

Frank R. Wehe, Dist. Atty. Sierra County, for defendant in error. Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge.

HAWLEY, District Judge. This action was brought by the county of Sierra, in the state of California, to recover of and from the plaintiff in error herein a license tax of $2,500, it being alleged that said plaintiff was engaged in that county in the business of sheep raising without having first paid the license tax required by Ordinance No. 54, passed by the board of supervisors of Sierra county, May 31, 1900. This ordinance consists of io sections, which are set forth at length in the complaint. The first section reads as follows:

"Each and every person, copartnership, firm or corporation engaged in the business of raising, grazing, herding or pasturing sheep in the county of Sierra, state of California, must annually procure a license therefor from the license collector, and must pay therefor the sum of ten (10) cents for each sheep or lamb owned by, in the possession of, or under the control of such person, copartnership, firm or corporation, and used in such business in said county."

This ordinance went into effect June 15, 1900, and 10 days thereafter this action was brought. At the time this ordinance was enacted, the board of supervisors of each county of California was authorized, subject to the restrictions and limitations imposed by the Constitution and general laws, to license, for the purposes of regulation and revenue, all and every kind of business carried on in the county. St. Cal. 1897, p. 465, c. 277. On March 23, 1901, a new section was added to the Political Code of the state of California, to be known as section 3366, which repealed the authority of the board of supervisors to license for revenue. St. & Amend. to Codes Cal. 1901, p. 635, c. 209.

The averments in the complaint are sufficient to entitle the county to recover, provided the ordinance referred to is constitutional, in all respects valid, and of full force and effect so far as this case is concerned.

The defendant in the court below (plaintiff in error) interposed a demurrer to the complaint, on the general ground "that said complaint does not state facts sufficient to constitute a cause of action." This demurrer was overruled, "with leave to defendant to answer within twenty days." No answer being filed, the court directed judgment to be entered in favor of the plaintiff as prayed for in the complaint. From this judgment, a writ of error is brought to this court to have the alleged errors therein corrected. There are five assignments of error, which counsel for plaintiff in error have conveniently grouped under three propositions, viz.:

"(1) The ordinance in question is an unjust, discriminating, oppressive, and unconstitutional exercise of the power to license for the purposes of revenue. "(2) By the repeal of the statute authorizing boards of supervisors 'to license for purpose of regulation and revenue,' and restricting their powers to license in the exercise of their police powers, and for the purposes of regulation as herein provided, and not otherwise,' without any saving clause in favor of pending suits or unpaid license taxes, the Legislature of the state destroyed the cause of action which it had authorized the board of supervisors to create, denied any remedy for its enforcement, and abated this action.

"(3) The ordinance is a revenue, not a regulation, measure. As an ordinance for purpose of regulation, it is illegal and void, because it does not regulate, and the fee charged is so unreasonable that the courts will, as a matter of law, declare that its real purpose is revenue, and not regulation, and therefore void as a pretended exercise of the police power."

In the consideration of the various questions raised in this case, it must be remembered that, at the time of the passage of the ordinance herein involved, it was expressly authorized by the "Act to establish a uniform system of county and township governments," approved April 1, 1897. St. 1897, p. 465, c. 277, § 25, subd. 25.

The validity of similar ordinances, where several constitutional and other objections were raised, has been frequently sustained by the Supreme Court of California. In re Guerrero, 69 Cal. 88, 91, 10 Pac. 261; Ex parte Mirande, 73 Cal. 365, 372, 14 Pac. 888; County of El Dorado v. Meiss, 100 Cal. 268, 34 Pac. 716; County of Inyo v. Erro, 119 Cal. 119, 51 Pac. 32; County of Los Angeles v. Eikenberry, 131 Cal. 461, 465, 466, 63 Pac. 766. These decisions are binding upon this court, and will be followed, regardless of the decisions upon similar questions in other states. Williams v. Gaylord, 42 C. C. A. 401, 102 Fed. 372, 374, and authorities there cited; Id., 186 U. S. 157, 167, 22 Sup. Ct. 798, 46 L. Ed. 1102.

* * *

to

It is, however, claimed that the case in hand presents other objections that were not considered or decided in the decisions above referred to. The statute of 1897, among other things, authorized the board of supervisors to pass ordinances "to license, for purposes of regulation and revenue, all and every kind of business not prohibited by law, and transacted and carried on in such county fix the rates of license tax upon the same, and to provide for the collection of the same, by suit or otherwise." In 1901 the Legislature passed "An act to add a new section to the Political Code of the state of California, to be known as section 3366, relating to the powers of boards of supervisors, city councils, and town trustees, in their respective counties, cities and towns, and to impose a license tax," approved March 23, 1901. St. & Amend. to Codes 1901, p. 635, c. 209. Section 3366 reads as follows:

"Boards of supervisors of the counties of the state, and the legislative bodies of the incorporated cities and towns therein, shall, in the exercise of their police powers, and for the purpose of regulation, as herein provided, and not otherwise, have power to license all and every kind of business not prohibited by law, and transacted and carried on within the limits of their respective jurisdictions to fix the rates of license tax upon the same, and to provide for the collection of the same by suit or otherwise."

The Supreme Court of California has held that section 3366 repeals, by implication, the prior act of 1897, in so far as the same relates to