concurring:
I agree that the judgment should be reversed, but not upon the grounds stated in Mr. Justice Allen’s opinion. In fact, I dissent from the construction placed upon the statutes therein discussed, and think he has erred in stating the facts of the case.
The undisputed record is that the warrants issued in 1912 and January, 1913, for the payment of which the special levy in question was made, were issued after the fund upon which they were drawn was entirely exhausted, and were not issued “upon certain funds created in 1911 for the fiscal year 1912.” Moreover, the entire taxes to create such fund had been collected and paid out prior to the issue of such warrants, or the contracting of the indebtedness for the. payment of which they were issued. The Act of 1891, §§ 1215, 1216 and 1217, R. S. 1908, prohibits adding to the county expenditure in any one year anything above the annual appropriation therefor, except that the board of county commissioners are permitted to order *150“any improvement, the necessity of which is caused by any casualty or unforeseen contingency happening after such annual appropriation is made, if there shall be money in the county treasury belonging to the proper fund out of ivhich payment for such improvement can be made.” Section 1217, supra, declares that no contract shall be made by the board of county commissioners, and no liability against the county created by any officer of the county, whether the object of the expenditure shall have been ordered by the board of county commissioners or not, unless an appropriation shall have been previously made concerning such expense, and makes every officer of the county “who shall undertake to create any liability against the county, except such as he is by statute required to do”, personally liable upon his official bond for such indebtedness. Section 1364, R. S. 1908, provides that when thé county commissioners shall deem it necessary to create an indebtedness for making or repairing public roads or bridges, they may upon thirty days’ notice submit the question to a vote at a general election, and that upon authorization by the people the commissioners “shall be authorized to contract the debt in the name of the county.”
Having in mind these express statutory provisions governing the subject, I am unable to understand how it can be held that county commissioners have authority to do that which they are therein expressly prohibited from doing. Bent County v. A. T. & S. Fe Ry. Co., 52 Colo. 609, 125 Pac. 528, quoted from in the majority opinion, has no application to the facts of this case. In that case it was stipulated “that the contract for the repairs was made on the 30th day of August, 1904; that on said date there was in the proper fund sufficient money to pay for the construction of said bridge; that the fund so on hand was afterwards consumed in the necessary repairs of other bridges and roads, before warrants could be issued for the contract in question”, and it was held that the particular1 contract was valid, and “If any contracts for road and bridge work, or claims allowed against such fund were *151illegal, they were contracts made and claims allowed subsequent to the making of the contract in question.” In the case at bar there was neither a fund, nor a tax levy to create a fund, when the work was ordered or when the warrants were issued. Therefore, the indebtedness attempted to be created was not a liability against the county but, by statute, § 1217, supra, was a personal liability of the public officials who attempted to create it. There being no valid indebtedness against the county for this work the warrants issued therefor were equally invalid.
Section 1 of the Act of 1893, § 1375, R. S. 1908, has no application to the facts of this case. The act makes it the duty of the Board of County Commissioners of any county which “has, or shall have, any unliquidated and unpaid county warrants or orders, drawn on any fund, for the payments of which there are no funds in the county treasury of such county, and to pay which the incoming taxes already levied are insufficient”, to make a special levy or levies, from time to time, to pay the same. Clearly “unliquidated and unpaid county warrants or. orders”, as therein used, have reference to legal obligations, and none other. A county official may not deliberately order work done, and create an indebtedness therefor, and thereafter impose upon the public payment of the same, in face of the law expressly prohibiting such acts, and making him and his bondsmen personally liable for such indebtedness.
But apart from this, the judgment should be reversed. The object of the proceeding was to enjoin the county treasurer “from paying the warrants in question or disbursing any of the moneys created by the special levy of 1.7 mills; that the excess warrants of $22,210.69 be declared null and void; that as an incident to the injunctive relief asked, judgment be entered against the County of Arapahoe and the County Treasurer for the taxes paid by the plaintiffs respectively, by reason of the alleged illegal levy”, with interest, etc. There were many such warrants, and the holders thereof were in no sense parties to the proceedings; and the moneys coming into the hands of the treasurer by *152virtue of the special levy were beyond the control of private individuals, though the latter might have a claim against the county by reason of its collecting the same. Such claim, however, could be enforced by a suit at law under the statute, after having been presented to, and its payment refused by, the Board of County Commissioners. The trial court having very properly held that the temporary injunction should not have been granted, and refused to make it permanent, the right to recover therein the amount of the taxes paid necessarily fell with the equity case, such right being incident thereto.
Decided April 2, A. D. 1917. Rehearing denied June 4, A. D. 1917.I am authorized to state that Mr. Justice Bailey approves what I have said, and concurs therein.