If the indebtedness attempted to be incurred was for the erection or extension of some city property used in the exercise of the city’s power as a proprietor, I would agree with *124those judges dissenting here. A city acts in its proprietary capacity in the conduct of a waterworks for the distribution for pay of water to its inhabitants. But the situation here, as I view it, is not such as calls for the application of the rule that the constitutional debt limit cannot be exceeded, even in cases of necessity, for any proprietary activity. Here, it seems to me, we have a case of necessity arising in a matter affecting the city as a branch of sovereignty. In its governmental capacity it is charged with the duty of preventing and abating nuisances, protecting the public health and safety, and where, in order to fulfill those governmental functions, it is necessary to exceed the constitutional limit of indebtedness, such overplus is allowable. It would not be permitted for the purpose of starting or extending waterworks, but here that is not what is intended to be done. The situation here is no different from that which would obtain were the water system privately owned, and to preserve the health of the public it was necessary to render the supply fit for use by removing pestilential conditions; it is no different from that which would obtain were there existing any one of many possible nuisances inimical to public health, which it is unquestioned the city could abate, though the cost of so doing would create a debt beyond the limit fixed by the constitution.
There is an emergency which compels action to allow the city to meet its obligation to protect its residents against contagious diseases, and it is a mere fortuitous circumstance that the cause of the contagion resides in property owned by the city as a proprietor. Would there be any doubt that the city, in its governmental capacity, would be empowered to do what it is here attempting if there was, on a piece of real estate used by it as part of a lighting plant furnishing light for pay, an open pool of stagnant water which the state *125health officers found to he a breeding place for mosquitoes that were spreading typhoid germs throughout the community and which those officers ordered to be cleaned up, and the consequent expense to the city would have to be met by exceeding the fixed limit? The situation in Kelso is, in effect, just that, and it should be allowed to preserve the health of its inhabitants by preventing disease, even though the nuisance rises out of the conduct of an instrument owned by it as a proprietor.
I therefore concur in the result arrived at in the first opinion herein.