OPINION ON RE-HEARING.
Hoyt, C. J.From the petition for re-hearing filed in this cause it is clear that the position taken by the majority of the court in reference to the liability of cities upon grade warrants was not understood. The principle which the majority of the court desired to announce was that the collection of such warrants could not be enforced out of the general fund of the city if it was still within the power of the officers of the city, upon their own motion, or moved thereto by interested parties, to cause to be collected the cost of the improvement so as to make possible the payment of the warrants out of the special fund upon which they were drawn; that the liability of the city generally to pay the warrants could only be resorted to when the right to create the special fund upon which such warrants were drawn did not exist; that the fact *304that the city officials had been guilty of negligence in not causing the money to be placed in the special fund at the earliest possible date would not be sufficient to make the city generally liable for the payment of such warrants; that only when such negligence had resulted in the city’s being placed in such a condition that it was beyond its power to cause the money to be placed in the special fund for the payment of the warrants would such general liability be available to warrant holders. And as in the opinion of such majority the facts proven did not sufficiently show that'the city could not collect the cost of the improvement by assessment upon the property benefited, and thus provide for the payment of the warrants, it was held that their payment could not be compelled out of the general fund of the city, and as we are still of the same opinion the petition for re-hearing will be denied.
Scott and Anders, JJ., concur.