(dissenting).—I dissent. It seems to me that the ground upon which the majority affirm the judgment, viz., a failure to give notice calling for bids, was not made an issue in the cause. The sole consideration upon which the injunction was sought, as I read the complaint, was that the outstanding warrants were illegal because of having been issued after the limit of indebtedness had been reached by the county, and this appears to me to have been the sole basis of decision below, as there is no finding upon the question of notice.
It is a familiar rule of pleading that a complaint must proceed upon a distinct and definite theory, and plaintiff must recover upon that theory or he can not recover at all. But, irrespective of this, in my judgment no notice is required where the purpose is to exchange bonds for outstanding warrants. The statute authorizes two alternatives:
“ They [the bonds] may be exchanged at not less than their par value for such warrants or other outstanding indebtedness, or may be sold at not less than their par value, and the proceeds used exclusively for the purpose of retiring and canceling such warrants and interest thereon or other indebtedness.” Laws 1895, p. 466, § 2 (Bal. Code, § 1891).
The notice required by section 3 of the act should be held to be necessary only where the alternative of selling the bonds is resorted to. While the language in regard to notice is broad enough to include both alternatives, it seems to me that an examination of the entire act makes it reasonably clear that notice is only essential when the bonds are to be sold. The section (§ 3, p. 461) providing for notice makes it “the duty of the corporate authorities to meet with the treasurer of the county, city or town, proposing to issue such bonds, at his office and with him open *63said bids, and shall sell said bonds to tbe person or persons,” etc. There is a vast difference between a sale and an exchange; an exchange contemplates the giving or taking of one thing in return for another without the intervention of money. To say that notice is required to be given where merely an exchange is to be effected virtually renders nugatory the provision of the act authorizing an exchange. Clearly the only person who could exchange a warrant for a bond would be the holder of such warrant. It is also probable that a sale of the bonds could not be consummated for the reasons pointed out by this court in State, ex rel. Jones, v. McGraw, 12 Wash. 543 (41 Pac. 893), where it was held that the aggregate amount of the warrants and bonds must be within the debt limit. Recognizing this difficulty, it is said in the majority opinion:
"... but the plaintiff contends, notwithstanding this, that the notice should be given, and that the proceeding could be carried out in ease of an acceptance of a bid made by a party not holding the warrants or any of them, by providing for a deposit of the money with an agent, to be used in taking up the warrants, whereupon the commissioners could publish a notice calling the warrants in, in which case they must be presented for payment or they would cease to draw interest, and that,, as the warrants were presented for payment they could be paid from the fund so deposited, and exchanged from time to time as they came in for the bonds, and asserts that this is a common practice. However this may be, it certainly could be resorted to, and in many cases some such plan would have to be adopted.”
It seems to me that the plan here approved is a mere scheme of evasion unbecoming the dignity of a political subdivision of the state. Who is the “agent” with whom the money is to be deposited? Counties have only such agents as the law has provided and their duties are de*64fined by law. Manifestly the party with whom the funds are to be deposited can not legally be the agent of the county, and if he is the agent of the purchaser what right has such person to pay municipal warrants? And how can the commissioners call in outstanding warrants until there is money in the public treasury lawfully available for their payment? The law makes it the duty of the treasurer to call in warrants when he has available funds with which to pay them. In my judgment the law has provided a plain method of procedure, and it is unnecessary to resort to any shift or artifice in order to give effect to its provisions.
On the other branch of the case I fully concur in what is said in the opinion, but for the reasons above noticed I think the demurrer to the complaint should have been sustained, and upon the findings of the court the decree should be reversed or at least substantially modified.