I concur in the judgment. The limitation of liability for which section 18, article XI, of the Constitution provides, has reference only to contract indebtedness or liability. "In McQuillin on Municipal Corporations it is stated to be the well-settled rule that such provisions in the constitutions and statutes of the various states apply only to indebtedness which arises ex contractu and have no application to involuntary liabilities arising ex delicto." (City of Long Beach v.Lisenby, 180 Cal. 52, 57 [179 P. 198, 200].) "This constitutional provision has been held applicable only to contractual obligations." (Birch v. Monroe, 70 Cal.App. 656, 661 [234 P. 125, 127], citing City of Long Beach v. Lisenby,supra.) "It is conceded that if the liability in question is contractual the judgment must be affirmed. (Arthur v. City ofPetaluma, 175 Cal. 216 [165 P. 698].) On the other hand, it is conceded that if such liability is one created by statute the judgment must be reversed." (Kennedy v. City of Gustine,210 Cal. 18, 20 [290 P. 38].) In Oscar Heyman Brother v.Bath, 58 Cal.App. 499 [208 P. 980], the petitioner for writ of mandate was seeking to compel the levy and collection of a tax sufficient to pay a judgment for recovery of taxes *Page 6 paid under protest. In defense the respondents relied upon section 18, article XI, of the Constitution. The court said: "We are satisfied that the payment of the tax involved here was involuntary and that the judgment is evidence of an obligation imposed by law rather than one implied in fact. Such being the case, the city is not asked to `incur' an indebtedness in excess of its income and revenue, but is asked to provide the necessary income and revenue sufficient to meet an indebtedness imposed upon it by law."
The commencement and prosecution of the action for condemnation of plaintiff's property did not depend upon consent of the plaintiff. The abandonment of the proceeding was likewise without his consent. No relation of contract either express or implied existed between the parties. The expenses for which the judgment provides reimbursement were forced upon the plaintiff (defendant in the condemnation action) without his consent. The term "liability" as used in the Constitution includes implied contracts. (Buck v. City of Eureka, 124 Cal. 61, 68 [56 P. 612].) But at least they must be contracts. In Arthur v. Cityof Petaluma, 175 Cal. 216 [165 P. 698], the claim of the petitioner arose out of a contract, and the city was given the protection of the above-mentioned section of the Constitution. In the course of its discussion of the question the court said (p. 220): "We have neither the right nor the disposition, by judicial interpretation, to take away the wholesome restriction upon municipalities thus imposed by the Constitution. Of course, in giving effect to this radical change from the pre-existing condition of things, it will not be strange if some shall be found to suffer. But it must be remembered that all are presumed to know the law and that whoever deals with a municipality is bound to know the extent of its powers. Those who contract with it, or furnish it supplies, do so with reference to the law, and must see that limit is not exceeded. With proper care on their part and on the part of the representatives of the municipality, there is no danger of loss." In using the language just quoted, Chief Justice Angellotti was quoting from a preceding decision of the court written by Mr. Justice Ross. (San Francisco Gas Co. v. Brickwedel, 62 Cal. 641.) It seems to me that in giving expression *Page 7 to these views of the subject, the Supreme Court had in mind a distinction which would have prevented it from applying the constitutional limitation relied upon herein to a liability to compensate for a loss which was imposed upon the judgment creditor just as completely without his consent as if his cause of action had resulted from a tort.