Ex parte Willis , 74 Ark. 498 ( 1905 )

Hiel, C. J.,

(after stating the facts.) The act of December 14, 1.875, entitled “An Act to Prevent Discrimination in County Warrants or County Scrip,” which is section 1174, Kirby’s “All. warrants, scrip, acceptances or money shall be receivable for any taxes for city purposes, except for interest tax, and for all debts due the municipal corporation by whom the same were issued, without regard to the time or date of issuance of such warrant, scrip, acceptance or money, or the purpose for which they were issued.” The ordinance in question prohibits the acceptance as payment of debts due the city of any warrant until the preceding warrants have been paid.

The warrants themselves attempt to carry in their face'an agreement in accordance with the terms of the ordinance, and the sole question is the effectiveness of the ordinance or terms of the warrant. Judge Dillon said: “Ordinary warrants or orders, negotiable in form, may be made by the proper officers; and in many of the States such instruments may be transferred by delivery or indorsement, and the holder sue thereon in his own name; yet they are not commercial or negotiable paper in the hands of holders, so as to exclude inquiry into the legality of their issue, or to preclude defenses thereto. Ordinary warrants drawn by one officer on another officer of the same corporation are not bills of exchange, as such bills involve the idea of two parties; but are orders by the corporation on itself — mere directions to the treasurer to pay the amount to the bearer.” i Dillon, Municipal Corporations, § 487.

From the very nature of the warrant, as above explained, a contract with the creditor of the town or his assignee cannot be carried into this unilateral instrument. The creditor is not bound to accept any wárrant, but may sue upon his original debt (1 Dillon, Mun. Corp. § 501), and the municipality cannot incumber its debt to him with stipulations contrary to the statute, and his assignee stands in his shoes, and has no greater or lesser rights.

In Nebraska a valid municipal contract was incumbered with illegal stipulations regarding certain funds out of which payment was to be made, and it was held that the illegal stipulations be rejected, and the contract deemed what it should be under the law, payable out of the general fund. Nebraska City v. Gas Light Co., 9 Neb. 339. In Wisconsin town warrants were incumbered with statements that they were payable out of particular funds, which was unauthorized, and it was held that such.designations did not change the legal effect of the warrants, and the}'' were payable out of the general fund. Montague v. Horton, 12 Wis. 599; Marvin v. Jacobs, 77 Wis. 31.

It is plain, therefore, that the form of the warrants added nothing to their effect, and the question recurs on the ordinance itself. If it is valid, then the warrants were properly rejected; otherwise not.

In City of Helena v. Turner, 36 Ark. 577, the court said of the act of December 14, 1873: “There is nothing in this act to forbid contracts with corporations for payment in money specially, although it may apply to debts and obligations generally.” In that case a contract to pay in currency of the United States rental to the city of Helena for the exclusive forwarding and shipping privilege from certain lots of the city constituting a wharf was held not to be in conflict with the statute in question, and the decision is manifestly correct. It is far from being an authority here to sustain this ordinance, which does not deal with special contracts, but deals with the priority of the city’s own evidences of general debts, and establishes a rule directly opposite to the statute in question, and is therefore void.

The judgment remanding the prisoner to custody, and directing his imprisonment unless other warrants than those in question were tendered, is erroneous, and is quashed.