This case was before us at the August term, 1887, and will be found reported in 26 App. Ct. Rep. 449. We reversed the judgment of the Circuit Court, for error in sustaining a general demurrer to the whole declaration, two counts of which, in our judgment, stated good causes of action. The cáse was remanded, and when it was redocketed in the Circuit Court the plaintiff took a non-suit as to the three assignments of breaches, counting on the warrants issued for street lighting furnished before the tax levy was made, held by this court to be obnoxious to the general demurrer, and filed the declaration now under consideration, in which breaches are assigned for the non-payment of the two warrants only issued for street lighting for the months of October and November, 1886. These two breaches assigned are the same in substance, taken with the other averments in the declaration, which this court held sufficiently stated good causes of action. No reason is now perceived for changing our ruling and decision in that regard. All the material objections urged against the sufficiency of the declaration now before us, were quite as applicable to the declaration already examined and passed upon by this court, and are fully considered and discussed in the opinion published in the report of the case above cited. We adhere to the views expressed in that opinion and deem it unnecessary to again go over the same ground, or repeat all that is there said. Our attention is invited, however, to Prince v. City of Quincy, 21, N. E. Rep. 768, and counsel for defendants in error insist it is a case in the decision of which the Supreme Court defeats plaintiff’s grounds for recovery set up in this declaration, and in effect overrules the decision of this court at said August term, 1887, holding said two counts of the declaration good. We have examined the case relied on, and the opinion of Pleasants, J., quoted and approved in the opinion of the court, but do not understand the facts in that case to be substantially the same as the facts alleged in the declaration in this case. The contract with Prince created by the ordinance, was that the city shall pay said Prince in monthly installments from the time water is turned on, etc., and in the opinion it is said :
“Thus the contract was not to provide for payment, but to pay, not out of a particular fund, but absolutely, and the obligation'for the delivery of the money was not cast upon its officers, but assumed by the corporation.” We are considering a declaration in which it is averred that the two warrants, for the non-payment of which by the city treasurer, breaches are assigned, were delivered to, and accepted by, Griswold, in full satisfaction for services rendered and material furnished by him for street lighting. These warrants, by their very terms, were payable only out of a specific fund, which had then been appropriated to the payment thereof, and the tax levy had been made to raise that fund. The money collected for that purpose under and by virtue of the tax levy, sufficient to pay said tax warrants, it is averred, was in the hands of the treasurer, and it became his duty to pay them when presented for payment. The city gave these warrants and Griswold accepted them in exchange for services rendered and material furnished for street lighting for October and November, 1886, and for such services and material furnished, no debt against the city, contingent or otherwise, was created or existed. In the former opinion it was said that warrants drawn upon the treasury in payment of gas furnished prior to the actual levy of the tax, were illegal and void. Those, however, issued in payment for gas furnished after the tax levy, rest upon a different basis. It was held in East St. Louis v. E. St. L. G. L. & C. Co., 98 Ill. 415, that the city had general power to enter into contracts for furnishing of gas for city purposes, and such contracts were within the scope of its authority, and, having such general power over the subject-matter of the contracts, the courts should not destroy the contracts made by the party further than some good reason requires. If the contract with Griswold had been made after the passage of the general appropriation bill, wherein the fund for lighting streets was set aside and specified, and the tax levy had been actually made-, it will be conceded such contract would be free from all legal objection, and not in violation of the constitution, as construed by the Supreme Court in City of Springfield v. Edwards, 84 Ill. 626, and Law v. People, 87 Ill. 385.
The city would then have something to exchange for the gas furnished. Having, then, the general power over the subject in question, there seems to be no good reason for holding that if, after such tax levy was actually made, Griswold furnished gas which was used and accepted by the city, it might not pay for it by warrants drawn against this particular fund, and in determining the amount to be paid therefor adopt the contract price. This view is supported by East St. Louis v. E. St. L. G. L. & C. Co., supra, where substantially the same question was raised and decided in favor of the company. In this connection we will add that a writ of error was sued out of the Supreme Court by defendants in error here, and our former decision in this cause was taken up for review. While it is true that courtheld our judgment was not such as by the statute could be taken upon error or appeal, and for that reason dismissed the writ, yet the record was before that court, and if the Prince case was understood and intended to have the effect insisted upon by counsel for defendants in error in deciding the questions here presented, it seems to ns some intimation would have been given in the opinion to the effect that the decision in that case determined the vital questions involved here and thereby have induced the abandonment by plaintiff in error of the further fruitless litigation of the subject-matter in controversy in this suit.
Some other questions are raised on behalf of defendant in error which were not presented before, and we will now dispose of them. It is urged the warrants described in the declaration are not drawn to conform to this provision of the statute authorizing their issue. “ Provided, that warants drawn and issued under the provisions of this section shall show upon their face that they are payable solely from said taxes when collected and not otherwise.” The warrants in question upon their face are payable only from the appropriation of the taxes of the year 1886, appropriated and levied for the street light fund, when collected. This is a sufficient compliance with the spirit and letter of the said provision.
It is also claimed that warrants such as these are invalid, unless provision be made for them after the making of the tax levy against which they are drawn. The declaration avers and the demurrer admits that the tax levy against which warrants were drawn had been made when the services were rendered for which said warrants were issued and taken as payment, and as before held, they were then properly and lawfully issued and paid over,for that purpose." The warrants were also signed by the mayor, and countersigned by the city clerk. The only other question we shall notice is as to the jurisdiction of this court. It is claimed the construetion of the constitution, and the validity of the act of May 31, 1879, under which the authority to issue the warrants is given, are involved, hence the writ of error should have been sued out from the Supreme Court. The construction of Sec. 12 of Article 9 of our State Constitution, and the validity of the act in question, are no longer open questions which may be raised or involved in this case, but have been settled in City of Springfield v. Edwards, 81 Ill. 626, and Law v. People, 87 Ill. 385, as we understood the decisions in those cases.
We think the Circuit Court erred in sustaining the demurrer and for that error reverse its judgment and remand its cause.
lieversed and remanded.