On Application eor Rehearing.
Fenner, J.After considering all the views submitted in the able brief for rehearing, we adhere to our clear conviction that under the City Charter, as it would have been under the Act 135 of 1888, the plaintiff’s contract was clearly unauthorized and illegal.
The authorities cited to show that, although unauthorized, yet the city, having received and used the property of plaintiff, is liable for its value ex cequo et bono, might have weight, if the city were capable of contracting debts except as a charge upon her current revenues. But the city has no such capacity under the Constitution and laws of the State. Plaintiff’s claim is presented in contest, not with the city practically, but with her lawful creditors, over whom he claims a preference on the revenue of the year. His illegal claim can not compete with their legal claims.. The utmost he could claim would be to have his debt satisfied out of the revenues of the year after payment of all lawful claims thereupon. But, as the allegations of his petition show the inadequacy of the revenue to meet the charges, such relief will probably be futile.
We, however, reserve his right to sue the city on a quantum meruit for a judgment payable out of any surplus of the year’s revenue.
Rehearing refused.