[dissenting). — I am unable to agree with the conclusions of the majority announced in the foregoing opinion. Under well settled rules of law, money due and unpaid,if the amount thereof is liquidated, will draw interest at the legal rate. It is equally well settled that an exception to such rule exists in favor of the sovereignty and of its necessary agencies in the government; that under such exception sums due and unpaid will not draw interest unless there is express statutory provision therefor, or such universal custom and acquiescence therein as to have the force of express legislation. It is conceded that counties are necessary agencies of the state, and are entitled to the *503benefits of this exception. It must follow that the warrants in question, being claims against a county, will only draw interest by virtue of the express provision of the law which provides that, after they have been presented and payment refused for want of funds, they shall draw interest at the legal rate. Without this provision the warrants would draw no interest, and the sole object of its enactment was to place counties upon the same basis, so far as the payment of interest on money due was concerned, as private individuals were without any legislation. If the money was due from a private individual, it would draw interest at the legal rate which was or should be established during the time that payment was delayed; and the fact that a certain rate was the legal rate at the time the money became due would not establish that as the necessary rate until payment. If the legislature should change the legal rate, the changed rate would obtain from the date the law making the change went into effect.
If a note is given bearing a certain rate of interest, and nothing is said about the rate which it shall draw after maturity, the great weight of authority is to the effect that after such maturity it will only draw interest at the legal rate unaffected by the contract rate set out in the note. In a case of this kind there would be much greater reason that the rate of interest as specified in the contract should continue to attach to the use of the money after a violation of its terms than that the rate in existence at the time a warrant was presented for payment should continue to be the rate as to the money represented by such warrant, uninfluenced by the fact that the legal rate had been changed by the legislature.
What is said in the opinion of the majority as to the right of one furnishing goods for the county growing out of the rate of interest which prevailed at the time such goods were furnished, needs no attention, for the reason *504that it is not contended on the part of the appellant that the rate of intei-est upon the money due for such goods would be established prior to the time of the issue and presentation of the warrant.
Something is said about public policy, but in my opinion, considerations of that kind can have no influence in the determination of this question for the reason that the law seems to me clear, when the object to be accomplished by the legislation is taken into consideration. If from the language of the provision it was clear that the legal rate named therein referred exclusively to such rate at the date of the presentation of the warrant, such fact would not warrant the construction placed thereon, for the reason that the rate prescribed was not a contract rate, but was in the nature of a penalty for the non-payment of the money, like the penalty imposed for the non-payment of a judgment, which it is conceded is within the control of the legislature unaffected by the rate of interest established by law at the date of the entry of the judgment. But as I read the provision it has no particular reference to the date of the presentation of the warrant, but is simply a general provision applying to all warrants by which it is provided that during the time the money due thereon is unpaid such money shall draw interest at such rate as from time to time shall be established by law as the legal rate. The construction contended for by the appellant would, in my opinion, only be warranted if the statute was to the effect that after the pi’esentation of the warrant it should draw interest at the legal rate at the date of its presentation. The general language used, and the statement that the warrant shall draw interest at the legal rate, when fairly interpreted, should only be held to mean that the legal rate referred to is that prevailing from time to time while the warrant remains unpaid.
*505I am unable to find anything in the language used to show an intention on the part of the legislature to create a legislative contract. It only appears therefrom that the state and its counties should be put upon the same footing as individuals, and be required to pay for the use of money retained after it is due a fair compensation, and such compensation is fixed at the legal rate, which is fixed by the legislature from time to time as the value of the use of money changes. There is no reason why the legislation should be so construed as to compel the payment of more than a fair compensation for the use of the money. Such, however, is the result of the construction given by the majority. The judgment directed will require the county of Thurston to pay for the use of the money ten per cent, when the use has been by law declared to be worth only eight per cent. Stress is placed upon the fact that the retention of the money by the county being caused by the state of its treasury should put it upon a different basis than an individual whose neglect to pay is caused by want of funds. I can see no reason whatever for so discriminating against a county, which is but one of the agencies through which the state does its business.
■ Anders, J., concurs.