
    LIMITATIONS OF BONDING POWER.
    [Common Pleas Court of Mercer County.]
    J. F. Smith v. The Village of Rockford et al.
    Decided, November 17, 1906.
    
      Corporations, Municipal ancl Village — Authority of, to Issue Bonds — ■ Right of Tax-payer to Enjoin Abuse of — Extends to' Property Owner-in Village — Street and Seioer Improvements- — Application of Sections 53 and 100 of the Municipal Code and of the Longworth Bond Act — Special and General Powers of Council — Power to "Wlahe” and Power to “Pay for” Improvements — Duplication of Powers.
    
    1. The right of a tax-payer to bring an action to enjoin a threatened abuse of corporate power was not created by the municipal code, nor is it restricted to property owners in cities, but when occasion arises is equally available to one owning property in a village.
    2. The limitations of Section 100 of the municipal code and Long-worth bond act, which is in effect a part of that section, are controlling upon city and village councils in the issue of bonds to pay the corporation’s share of street and sewer improvements and intersections, provided for in Section 53 of the municipal code; unless authorized by the electorate, therefore, such issues must be restricted for any one fiscal year to one per cent, of the amount of taxable property within the corporation and on the tax duplicate.
   Mathers, J.

This is an action by a tax-payer of the village of Rockford, seeking, in behalf of the village, to enjoin a threatened alleged abuse of corporate power by the village council, and the carrying out of certain contracts, alleged to be illegal, by some of the defendants who are contractors with the village for the street and sewer improvements hereinafter mentioned.

The right of the plaintiff to sue in this behalf was questioned gt the hearing. It was urged that the municipal code only provides for such actions as this in the case of cities, but makes no such provision where villages' are. involved. That would be a strange doctrine which would deny to a citizen the equal protection of the laws merely because he happened to live in a village instead of a city. The provision of the code in the case of cities is merely a regulation of a right which a tax-payer has without these provisions. They do not create the right to appeal to the courts for the vindication of rights. This right exists independently of those statutes, though, since their passage, the courts would doubtless require applications to be añade subject' to their requirements. That the plaintiff may maintain this suit is abundantly established both in reason and authority. For the latter, see Pomeroy’s Equity Jurisprudence, Section 276 and Section 1345 (2d Ed.); Dillon’s Mun. Cpns. (4th Ed.), Section 914; Raynolds v. Cleveland, 13 Dec., 258; Cincinnati St. Ry. v. Smith, 29 O. S., 291.

The council of the village of Rockford, in Mercer county, has taken action to improve two certain streets of the village, by grading, paving and draining the same, aoad to assess the cost thereof, by the front foot, on the lands and lots “bounding and abutting” thereon; and to construct two sewer improvements in the village and to assess the cost and expense thereof, in proportion to benefits, upon the bounding and abutting lots and contiguous territory. It has determined to pay the one-fiftieth of the cost of each improvement, and the cost of intersections, by a levy on all the taxable property of the corporation. It proposes to issue bonds in anticipation of the special assessments referred to, and to issue the boards of the village to pay its said share of the improvements and the • cost of the intersections. It has authorized and sold, and will deliver to the purchasers, unless restrained, $17,000 of village bonds to raise money to pay the village’s share and the cost of intersections aforesaid. The appraised valuation of all taxable property in the village is $358,320, and one per eeiat. of this is $3,583.20. The village owns a water works, exteaasions of which have been made and contracted involving an expenditure of $3,900, and bonds in the surra of $2,000 have beerr issued in this behalf.

Plaintiff contends that the proposed action of issuing the $17,000 in bonds, as aforesaid, is ultra vires, inasmuch as it contravenes Section 100 of the municipal code and the act of April 29, 1902, known as the Longworth Bond Act. These provisions of the statutes inhibit the creation, by the council of a municipal corporation, of a bonded indebtedness in any one fiscal year for any or all of the purposes mentioned in the act, in excess of one per cent, of the total value of all property in the corporation listed and assessed for taxation, unless such excess is authorized by a vote of the electorate.

The defendants contend that the proposed issue of bonds is not to be made under Section 100, but by virtue of Section 53 of the municipal code, which provides that “any city or village is hereby authorized to issue and sell its bonds as other bonds are sold to pay the corporation’s part of any improvement aforesaid (referring to improvements which are; to be paid for by special assessments on abutting or benefited property), and may levy taxes, in addition to all other taxes authorized by law, to pay such bonds and the interest thereon. ’ ’ They contend that the corporation has, by law, two classes of powers, one general and the other special, to make such proposed improvements; that the general powers are enumerated in Section 7 of the code, among- which, in - subdivision 18, is conferred power to improve streets, etc., and in subdivision 19, is conferred power to construct and to keep in repair sewers; and that Section 7 authorizes council to provide, by ordinance or resolution, for the enforcement and exercise of said powers. They contend that these so-called “general powers” authorize council to make street or sewer improvements at the general expense of the corporation, i. e., pay the entire cost and expenses thereof, by general taxation; and that when this plan is adopted, and then only, the provisions of Section 100 of the code apply. They contend that the so-called “special powers” of council are conferred in Section 9 of the code, and that in the 5th subdivision thereof is the power to levy and collect special assessments; that the sections of the code relating to special assessments are exclusive, and in themselves are intended to delimit a plan for the construetion of certain improvements, and among them street and sewer, which plan, if adopted by council, is not subject to the provisions of Section 100 and the Longworth Bond Act. Their contention is based on the theory that Section 100 and the Long-worth Bond Act constitute a general provision, and that Section 53 is a special one, forming an exception to the general one, and, consequently, outside of and not to be affected by it.

In the second division of the code, under the head of ‘ ‘ Powers of Municipalities, ’ ’ are two sub-heads: the first being ‘ ‘ General Powers,” and the second being “Special Powers.” Under the former is found Section 7, and subdivisions 18 and 19, already mentioned; and under the latter is found Section 9 and the 5th subdivision thereof above mentioned. Counsel for defendants, who made the principal argument, seemed to find much significance in this division of powers, contending that Section 100 and the Longworth Bond Act, being a general provision, could only relate to the general power mentioned, and could not affect the special power, which was governed by Section 53, relating to bond issues on account of special assessments.

The infirmity of this reasoning is that counsel confuses the power conferred to secure a certain end, viz., the power to make the improvements, with the power conferred to adopt a means to that end, viz., to pay for the improvements. It is obvious that whether an improvement is to be paid for by general taxation, or by special assessment; in either case the power to make the improvement at all is basic, and on it must rest the exercise of either plan of payment. So that, even if a so-called “special power ” is to be exercised in paying for the improvement, as by a special assessment, yet this power can not be exercised without also exercising the so-called “general power” to authorize or make the improvement. There is, therefore, nothing in the classification of municipal powers into general and special, that serves as a foundation for the contention that Section 53, being in aid of the delegation of the special power to levy and collect special assessments (Section 9, subd. 5), must, for that reason, be an exception to the general provisions of Section 100 and the Long-worth Bond Act, which, it is contended, relate only to the exercise of general powers (Section 7, subd. 18 and 19). If counsel admit at all — and I think one of his premises involves that admission — that Section 100 and the Longworth Bond Act control the action of council in issuing bonds in order to effectuate the exercise of the general powers conferred by Section 7 (subd. 18 and 19 of which relate respectively to the making of street and sewer improvements), he admits plaintiff’s whole contention. For if the power to authorize or order or make the im-' provements be a “general power,” and it is found in the delegation of so-called general powers (Section 7, subd. 18 and 19), and if the improvements can not be made except by exercising this power — and obviously they can not — then it would seem to follow that that general power can only be exercised in conformity with limitations upon it which are an essential part of it.

By the same reasoning exactly by which counsel concludes that the power to levy and collect special assessments, being a special power, is entirely independent of the general power to make the improvements, it may be said that the power to levy and collect taxes and the power to borrow money are special powers and entirely independent of the general power to make the improvement. The power to levy and collect taxes and the power to borrow money are both designated “special powers” in the code, being found enumerated in the same section as is the power to levy and collect special assessments, and being respectively subdivisions 4 and 6 of Section 9. By Section 32 of the code, being in aid of the delegation of the special power to levy and collect taxes, it is provided that ‘' the council of every municipal corporation shall have power to levy and collect taxes upon all the real and personal property within the corporation for the purpose of paying the expenses of the corporation, constructing all improvements authorized and exercising all the general and special powers conferred by law.” This language of Section 32 does not support counsel’s contention that special and general powers are mutually exclusive — are like the Jews and Samaritans and can have no dealings with one another. For to take the case put by counsel, of making an improvement and paying for it by general taxation, before council could effectuate an exercise of the general power to make or authorize the improvement (Section 7), it would have to exercise the special power (conferred in Section 32) to pay for it. Manifestly it is not the classification of powers, nor is it the character of the power, which determines the applicability of the Longworth Bond Act. The truth is that all the powers interact, when occasion demands, and may be interdependent in order to effect a corporate object.

But aside from the reasoning based on the classification of powers, is there, in the code, ground for the contention that Section 53 is an exception to Section 100 and the Longworth Bond Act? Do Section 100 and the Longworth Bond Act, authorizing, as the latter does, the issue of bonds for street and sewer improvements, prescribe the general rule as to limitations of bonded indebtedness; and does Section 53,. authorizing council, as it again does, to issue bonds for street and sewer improvements, prescribe a special rule, which must operate independently of the general one in Section 100 and the Longworth Bond Act? The answer must be in the affirmative, if the two sections or provisions can not bo harmonized. Bndlich, Interpretation of Statutes, Section 216, lays down the rule:

“If there are two acts, or two provisions of the same act, of which one is special and particular, and clearly includes the matter in controversy, whilst the other is general, and would, if standing alone, include it also, and if reading the general provision side by side with the particular one, the inclusion of that matter in the former would produce a conflict between it and the special provision, it must be taken that the latter was designed as an exception to the general provision.”

The code ought to be considered as a whole. The two sections involved, Sections 53 and 100, are each contained in the code as it was adopted in the act of October 22, 1902 (96 v. 20, et seq.), and they remain as integral parts of it. Their provisions must have been within the legislative contemplation when the act was adopted. It is true the Longworth Bond Act is a piece of antecedent legislation, but Section 100, passed at the same time as Section 53, does not merely provide it “shall be and remain in full force and effect,” but contains a. renewal of the legislative intent that municipal corporations, when they issue bonds for purposes mentioned in the act shall be governed by its limitations. It is true the terms of the act are permissive as to the issue of bonds, but it is difficult to imagine how they could be anything else, for the Legislature did not intend to direct council to issue bonds for the purposes mentioned.

The present Constitution of Ohio requires the General Assembly, by Section 6 of Article XIII, to restrict municipal corporations in their powers of taxation, assessment, borrowing money, contracting debts, and loaning their credit, so as to prevent the abuse of such powers. One of the purposes of the Legislature, in enacting the act of October 22, 1902, commonly called the municipal code, was to carry out the constitutional requirement. It so declared itself in the preamble to that act. Where one of two constructions of a section or sections of the code will effect this declared purpose, and the other will not, the former will be adopted.

Starting with these premises, let us examine the meaning and the relation, if any, of the two sections, 53 and 100. Section 53. is primarily concerned with limiting special assessments. It requires, however, that the corporation shall pay at least one-fiftieth of the cost of any improvement which is specially assessed and also the cost of intersections. It then provides that the corporation may issue its bonds to pay its share of the expense of such improvements. The question is, is this power to issue bonds subject to the limitations of the Longworth Bond Act?' If it is, then, 'why, it may pertinently be asked, was the power here in Section 53 specially conferred, when the same power is conferred in the Longworth Bond Act? The only answer which suggests itself, and one which is not as satisfactory as it might be, is that the duplication is the result of the heterogeneous character of the code, which consists of old statutes in connection with new ones. The General Assembly evidently deemed it safer to -leave many statutes relating to municipal affairs intact, either because they were generally understood, or had stood the test of experience or of attack in the courts, than to attempt to cover the same subjects anew. But notwithstanding the duplication of powers in this behalf, there is this consideration to be regarded, namely: Does the construction that Section 53 contains a special grant of power, and therefore, not subject to the limitations of the Longworth Bond Act, produce a result consistent with the declared legislative intention to restrict the power of municipal corporations to borrow money and contract debts? I think not, as will be shown later.

Section 53 is only operative when part of the cost of an improvement is to be specially assessed, on abutting or benefited property. The mere fact that part of the cost is thus to be paid does not change the nature of the other part, the part which the corporation is to pay. To pay the corporation’s part requires a levy on all the taxable property of the corporation, and bonds issued to pay the corporation’s part are payable by general taxation. Such bonds are as essentially a part of the corporation’s debts as would be bonds issued to pay the whole cost if it had been assumed by the corporation. The action of council, determining to pay one-fiftieth or any other portion, and to pay for intersections, is not a special assessment, and bonds issued therefor are not bonds which are to be paid by special assessment. Take, for instance, the ease at bar. The assessment in the street improvement is by the front foot on the abutting lots and lands. On what lots and lands of the village can it be said that the one-fiftieth of the expense is to be levied by the foot front? Or on what lots and lands of the village can it be said the cost of the intersections is to be levied by the front foot? The levy for the village’s share and for the intersections is not specially assessed on any lots or lands, but is generally assessed on all the property in the village, subject to taxation, personal as well as real. Neither, in the case of the sewer improvements, is the village’s share, or the cost of intersections, a special assessment on the lots and lands of the village. The improvement was to be paid for by special assessment, according to benefits, on the bounding and abutting lots and contiguous territory. Can it be said that .the levy to pay the village’s share and for the intersections is a special assessment on all the lots and lands in the village in proportion to benefits, when there is no apportionment of assessment to special benefits to the lots and lands, and when, in fact, the village’s share is assessed generally on not only the real but the personal property in the village subject to taxation 1 The general levy to pay the village’s share and for intersections is radically different from a special assessment by the foot front or in proportion to benefits; it is, in fact, like any other general tax, and the corporation’s share referred to in Section 53 and the cost of intersections, is paid by general taxation and not by special assessment.

Counsel’s contention, that the village’s share and the cost of intersections must be regarded as a special assessment, can not, therefore, be maintained. And this conclusion is supported by the decision in Comstock v. Incorporated Village of Nelsonville, 61 O. S., 288, 296, where it is said:

“ * * * the only money which the municipality pays out of its treasury of money raised by levy on the general tax-list, is so much of the cost and expense of the improvement as is not assessed against the property holders, and as to that part said Section 2702 is applicable, and must be complied with in order to make the municipality liable for such part of the cost and expense.”

Section 2702, it may be remarked, parenthetically, required municipalities to have the money in the treasury before appropriating or spending it, and, in the language of the opinion in the foregoing case, at p. 294 — •

“This, can only apply to money raised, or to be raised, by a levy on the general tax list of the municipality.”

In Emmert v. City of Elyria, 74 O. S., 125, the point seems to be decided that the same provision of the present code (Section 45) making the same requirement in this respect as Section 2702 óf the former code, does not apply, not because the'character of the corporation’s share is different, but because by the provision of the new code (Section 53), the corporation may issue its bonds to pay its share, and by Section 45a, when bonds are' sold and in process of delivery, the certificate as to the money in the treasury is dispensed with.

It may be remarked, in passing, that the said case of Emmert v. Elyria, supra, which counsel for defendants cited as decisive of the case at bar, is not in point. Neither of the points decided in that case is involved in the case at bar.

Bonds issued for the purpose mentioned in Section 53, not being then special assessment bonds, but in character like any other bonds issued to pay for improvements not specially assessed, I fail to perceive any reason why they should not be subject to the same limitations as any other improvement bonds issued by council, for their effect on the corporation’s credit and finances would be the same, that is to say, they would be an obligation of the corporation and payable by general taxation and not otherwise. And it must be remembered that the avowed intention of the Legislature, in enacting the new code, was to restrict the power of municipal corporations to borrow money and contract debts. Unless Section 53 contains within 'itself a reason for excepting the limitation of the Longworth Bond Act, it would seem to be applicable.

It was argued that the language of Section 53 in this behalf, .warranted its exclusion from that act, because it was provided that council might issue and sell the corporation’s bonds, and “levy taxes in addition to all other taxes authorized by law to pay such bonds and the interest thereon.” But the authority to levy taxes in addition to all other taxes authorized by law to pay such bonds and interest, in no sep.se removes any restrictions on the power to issue the bonds,. They are two separate and distinct things — the power to issue tlie bonds, and the power to levy a tax to pay them. The very absence of any limitation upon the power to tax in this behalf, causes one to search for the restriction, which, avowedly, the General Assembly intended to put on the power of taxation. As the power to tax in this behalf is based upon and limited' only by the power to issue bonds, it would seem that it must have been intended that the power to issue bonds for this purpose should be subject to some limitation, else the power of taxation is unrestricted. And the only limitation the power to issue bonds in this behalf is subject to is that of the Longworth Bond Act.

The court, during the progress of its investigation in this case, thought for a while that possibly there was a consequential limitation on council’s power to issue bonds for the purposes mentioned in Section 53, by reason of the fact that as special assessments could not exceed 33 1-3 per cent, of the value of the property assessed, bonds in excess of that amount could not lawfully be issued and that the extent of the improvement so to be assessed ■would determine the number of the intersections and the limits of the corporation’s share of the cost and expenses. But a little reflection disclosed that it would be possible for the council to issue and sell bonds to create a fund to pay the corporation’s share and for intersections of street and sewer improvements which were in contemplation only, and do so ad libitum, thus adding to the corporation’s indebtedness to an extent which might become embarrassing, and thus evading one of the very things the General Assembly avowedly intended to prevent. It would not answer to say that such action on the part of council would be an abuse of discretion which the courts would enjoin. If the statutes permit such action, the courts would be very slow to substitute their judgment for that of the council as to where a legitimate exercise of power would shade off into an abuse of discretion. The General Assembly manifestly did not intend to repose in the power of the courts the restriction on the power of council to borrow money and contract debts. It is said it would be found in the code itself, that the grant of power would be coupled with the restriction. And so, notwithstanding the apparent duplication of power to issue such bonds in Sections 53 and 100, that construction of these provisions will be adopted which will effectuate this declared intention to restrict and not that construction which will defeat it.

But there is another consideration pertinent to this inquiry. By an act of the General Assembly, passed March 22, 1906, the whole Longworth Bond Act is re-enacted and Section 28356 thereof amended so as expressly to exclude from the provisions and limitations of the act, “bonds which are to be paid for by assessments specially levied upon abutting property.” It would seem from this action of the Legislature, that prior to the amendment, such special assessment bonds were within the provisions and limitations of the act. If they were, it was by virtue of the general terms of the act itself, or of the provisions of the latter part of Section 95 of the code, which reads as follows:

“Municipal corporations shall likewise have power to issue bonds in anticipation of special assessments, and such bonds may be in sufficient amount to pay the estimated cost and expense of the improvement for which such special assessments are levied, and in the issuance and sale of such bonds the municipality shall be governed by all the restrictions and limitations with respect to the issuance and sale of other bonds, and the assessments as paid shall be applied to the liquidation of said, bonds. ’ ’

If they were within the provisions and limitations of the Longworth Act solely by virtue of the reference to the “restrictions and limitations with respect to -the issuance and sale of other bonds,” contained in the latter part of Section 95, why, it may be asked, was not this reference stricken out of Section 95 by an amendment? This would have left Section 95 in substantially the same condition as is Section 53 so far as any specific limitation therein is concerned. It would have read as follows:

“Municipal corporations shall likewise have power to issue bonds in anticipation of special assessments, and such bonds may be in sufficient amount to pay the estimated cost and expense of the improvement for which such special assessments are levied, and the assessments as paid shall be applied to the liquidation of such bonds. ’ ’

It may be observed in passing, that this reading of Section 95 —which is the effect given that section by the amendment of Section 28355 — is an express authority to issue bonds in any amount necessary to pay for the improvement, except that part which is to -be paid by the corporation. Construing together Section 95, as thus read, and Section 53, as being in pa/ri materia, it will be seen the Legislature has expressly authorized council to issue bonds without limitation, to anticipate special assessments, but has not expressly so authorized where the corporation is to pay them. Expressio umus est exclusio allerius.

Evidently the Legislature considered that the terms of the Longworth Bond Act would still be applicable to such bonds, even with Section 95 reading as just instanced. And so, in order to take such bonds out of the operation of the act, it deemed an amendment of that act necessary, expressly withdrawing them from its operation. The reason for excluding from the operation of the act bonds which are to be paid by special assessment on abutting property is, probably, that such bonds are really not payable by the corporation, but by the owner of the assessed property, and hence the obligation is not ultimately a corporate one, and it is the power to borrow money and contract debts for and in behalf of the corporation that is liable to be abused and is intended to be restricted. While the issuance of such bonds is, indeed, a loan of corporate credit, yet the Legislature probably considered the limitation as to the amount of a special assessment a sufficient guaranty against the abuse of this power, as the assessed property owner might safely be relied on to resist an assessment in excess of 33 1-3 per cent. The Legislature having then, by express enactment, withdrawn from the operation of the act street and sewer bonds, for instance, which are to be paid by special assessment, as not being within the purview of the act, is it not a satisfactory inference that all other bonds issued to pay for street and sewer improvements, are still within and subject to the provisions of the act, especially if they are within its purview ?

It has been shown, I think, that the bonds mentioned in Section 53 are not bonds which are to be paid by special assessment; it has been shown that there is no limitation to their issue, if the Longworth Bond Act does not apply; it has been shown that they come within the purview of the Longworth Bond Act —that a lack of restriction in this behalf is one of the evils sought to be prevented by that act; it has been shown that the intention of the law-making power is to restrict the powers of taxation, assessment, borrowing money, contracting debts, and loaning tbeir credit by municipal corporations; it has been shown that, notwithstanding bonds issued to anticipate special assessments are authorized by a special section (Section 95), which by its terms yet subjects their issue to the same limitations and restrictions as other bond issues, yet the General Assembly has expressly said they shall not be subject to the limitations and restrictions of the Longworth Bond Act, working thus an applied repeal of the limiting provisions of Section 95, and irresistibly suggesting the inference that all other improvement bonds, not somewhere also specially excepted, are within the provisions of the Longworth Bond Act; it has been shown that that act, as amended and re-enacted March 22, 1906, is not only the latest expression of the legislative will, several years subsequent to the adoption of Section 53, but that Section 100, partly constituted as it is, by this lately re-enacted Long-worth Bond Act, is not inconsistent with the provisions of said Section 53, but, on the contrary, appears to be necessary in order to harmonize Section 53 with the declared intention of the General Assembly to restrict municipal corporations in their powers of taxation, assessment, borrowing money, contracting debts and loaning their credit. The court, therefore, can not resist the conclusion that the power to issue bonds, mentioned in Section 53, is subject to the restrictions and limitations of Section 100 of the Longworth Bond Act, as amended and re-enacted March 22, 1906, and the court so decides.

It was urged, in behalf of the sewer improvements, that considerations of the public health, etc., might dictate a different conclusion. While such considerations might induce courts to adopt a liberal construction of statutes to secure the public health, yet the courts can not legislate, and if the plain intent of the law-making power is ascertainable, no other consideration ought to rule the court than to declare it. The sewer improvement is not dictated by any imminent danger to the public health and none menaces it. If it did, the code (Section 43) provides for it.

The amendment of Section 2835b, of the Longworth Act, also excludes from consideration, in arriving at the limitations provided in that act, “bonds issued for the purpose of constructing, improving and extending waterworks when the income from such waterworks is sufficient to cover the cost of all operating expenses, interest charges, and to pass a sufficient amount to a sinking fund to retire such bonds when they become due. ’ ’ It was admitted at the trial that the income from the Rockford waterworks is not sufficient to do these things. The bonds, therefore, which were issued and sold to provide for extensions, must Be considered in determining the bonded indebtedness referred to in Section 2835 of the Longworth Act. Their amount is $2,000. These appear to be the only outstanding bonds issued for any of the improvements contemplated by the Longworth Act. The difference between this amount and one per cent, of the total valuation of property in the village is $1,583.20. An issue of the village’s bonds, in excess of $1,583.20, for any of the improvements mentioned in the petition, would clearly be illegal, unless authority should first be given by an affirmative vote of the qualified electors of said village. As the amount of bonds necessary to pay the village’s share of any one of the proposed improvements will exceed what it may lawfully issue, and as the improvements must be complete to be at all servicable but can not be completed unless the village shall pay at least one-fiftieth of the cost and expenses and pay for the intersections, the proposed issue of bonds in the case of each improvement ought to be enjoined.

If enough people of the village do not approve of the proposed improvements to authorize the council to issue bonds in sufficient amount in excess of this one per cent, to pay the corporation’s share and for the intersections, council will have to make the improvements separately and not so extensive as to necessitate its exceeding, in any one fiscal year, the limitation prescribed by law on its bonded indebtedness.

The several issues of bonds being illegal, they can not be said to be in process of delivery and their proceeds in the treasury, as contemplated and provided for by Section 45a. of the code; and as it is admitted that no money was in the treasury to pay the village’s share of the cost and expenses of the improvements and for intersections, as required by Section 45, the contracts entered into with the defendant contractors are not binding on the village.

J. F. Loree and Boy E. Layton, for plaintiff.

Mauló (& Jackson, J. D. Johnson and Hcvrry Conn, for defendants.

The foregoing considerations and conclusions render any comment on the other questions raised unnecessary.

As the plaintiff sues in behalf of the village, and the facts warrant the relief prayed for, it will be granted, and the defendants and all of them will be enjoined from entering upon the prosecution of the street and sewer work described in the petition, and the council from delivering or disposing of the bonds described therein, and the injunction heretofore granted herein will be made perpetual.  