Response to petition for rehearing. The principal point decided in this case was that the county treasurer, when he has no notice of the illegality of the demand, or of the fact that no requisition has been made upon the auditor, or of any other fact to put him upon inquiry, may safely pay a warrant drawn upon the school fund if it is in due form and bears the genuine signature of the auditor or his deputy. And the judgment of the superior court was reversed on the findings because, while they show that the money here in controversy was paid by the treasurer out of the school fund on what purported to be a warrant for the amount so paid, they do not show that such warrant was not genuine and in due form, and do not show any other fact that ought to have deterred the treasurer from malting the payment on presentation of the warrant.
In their petition for a rehearing counsel for respondent contend that this proposition, conceding its soundness, has no application to this case because the findings show that the payment was made from the general school fund, whereas the law is that all county school moneys *536must first be apportioned to the several school districts, and all requisitions made and warrants drawn upon the special funds so created; from which they argue that the warrant in this case having been drawn upon the general school fund (meaning, we suppose, the unapportioned school moneys) bears upon its face the evidence of its illegality. But the fact that the money was paid from the unapportioned school fund, while it may be evidence that the warrant was not drawn upon any special or district fund, is not conclusive evidence of such fact, and still less is it the equivalent of a finding to that effect. The finding only means that the treasurer charged the payment against the school fund without specifying the district, and it is quite consistent with this fact to suppose that the warrant may have been properly drawn against the fund of some particular district.
In short, the judgment is erroneous because not supported by findings definite and conclusive as to one point essential to the liability of the defendant.
Conceding, without deciding, that the law governing the disposition of county school moneys is as respondent states it, a warrant drawn upon the general fund would be illegal on its face, and not merely illegal in a technical sense, but would carry evidence that it was not based upon any lawful demand or requisition from the county superintendent. We have not held or intended to intimate that the treasurer and his sureties would not be liable for money paid on such a warrant.
But on the other hand if the warrant was; as we assume, regular on its face, and bore the genuine signature of the auditor, we do not think that the amount paid can be recovered in this action merely because the payment was charged to the wrong account.
Upon a new trial the facts as to the warrant may be proved and the findings so framed as to show whether it was legal on its face or not.
Rehearing denied.