Giikgo, 3.
This suit ivas instituted by the appellees petitioning the Pulaski circuit court for a mandamus against the- appellant, as treasurer of said county', and to compel him to accept and pay off certain claims held by the appellees, which they alleged were warrants, legally issued by said county, and for the payment of which the said Parsel, as such treasurer, was liable.
Bo far as appears by the record, the claims held by the appellees were in the usual form of county warrants, duly issued, and were signed by the clerk of the county, and amounted in the aggregate to $975-^/^-, which were duly presented to the appellant for payment, and which he had refused to pay.
Upon the presentation of the appellees’ petition, an alternative mandamus was issued, upon the return of which the appellant appeared and filed 1ns response to the writ, in which he admits the petitioners are the holders of what purports to be twenty-seven pieces of Pulaski county scrip, issued previous to the 15th day of October, 1866, and that the same had been presented to him, as treasurer, for payment; he responds, that at the October term, 1866, of the county court of said county, the court ordered that all county' scrip issued previous to the loth day' of October, 1866, and then outstanding, should be presented to said county court on or before the 13th day of February, 1867, for classification and reissuing, &e.; that said appellees had due notice, and failed to present said supposed county warrants to the county court, &c.; and that thereby they were forever debarred from collecting the same.
The appellant further responded that no order was evermadebyr said county court allowing the demand and directing said clerk to issue warrants tlierefor, but that said clerk issued said supposed warrants wrongfully, without due authority from said county court, and. for that reason ho was not bound to pay the same, and asked to be discharged from the writ.
To which response the appellees interposed- their demurrer, and the court, after taking the case under advisement until a subsequent term, found in favor of the demurrer, and rendered judgment, making the mandamus peremptory against appellant, to Avhich finding and judgment he excepted and appealed to this court.
To sustain the demurrer the appellees insist that the order of the county court, calling in the outstanding scrip, was unconstitutional and void, so far as it was intended to affect the scrip previously disbursed.
Secondly. That the clerk of the county, in the issuance of county warrants, is the duly authorized agent of the county; and if such warrants were regular upon their face, 'and duly signed by him, the county is bound thereby, and it is immaterial to the holder whether or not the county court had made an order allowing such scrip and directing the clerk to issue the same.
Thirdly. That the response wars not verified by affidavit.
In reference to the last cause assigned, we do not hold, in the absence of any order requiring it, that an affidavit was. necessary to this response; but, if we did, we might well question the propriety of presenting that question by general demurrer.
We come to the main questions: Whether the order calling in the county scrip is binding on holders; and whether the county is liable for warrants issued and signed by the clerk without the order of the county court.
By the.act of the General Assembly of January 6, 1857, (secs. 58, 59, and 60, of chap. 147 of Gould’s Digest, p. 925,) it is provided that “ if the county court of any county may deem it expedient to call in the outstanding scrip of such county, in order to redeem, cancel, reissue, or classify the same, or for any other lawful purpose whatever, it shall be the duty of' such court to make an order for the purpose-of fixing a timo for such scrip to be presented, of which order holders of county scrip shall have notice;” and prescribes the manner in which such notice shall be given., requiring it to be published in each township in the county, as well as in newspapers printed and published in the State ; and providing that all persons who hold any scrip of such county and neglect or refuse to present the same, as required by such order of the county court, after the notice aforesaid, shall be forever debarred from deriving any benefit from their claims. It is admitted that the scrip in question was issued since the passage of this act.
The intcntkm of the Legislature is too clear to admit of any doubt. The neglect of duty, or incapacity of • some of .the county officers, often rendered it impossible for the county court, or the tax-payer, to determine the amount of outstanding county scrip; in whoso hands- the same -was, and for what purpose issued; and that the court and the citizens of the county might 1)0 fully advised — might know what amount of revenue was necessary to be raised, etc. — such act seemed important, and there can be no question but the Legislature intended to give the county courts such control over the warrants or scrip of the county as would enable them to take such action as would be most advantageous to the public, and fully intended that all county scrip issued thereafter should be subject to such conditions and restrictions ; and if the law only operated prospectively, as was clearly its intent,'there was certainly no violation of the Constitution in its enactment. But counsel insist that the order was unconstitutional, because made after the issuance of the warrants, without so attacking the law. .It seems well settled that the law existing at the time and place of making a contract must be considered as a part of the contract. See Thurston v. Peay, reer., 21 Ark., 86.
None, of the parties to this suit'question the proposition that the existing law is as much a part of the contract as are the stipulations expressed in the agreement. Should individuals, by express contract, stipulate that the one should acknowledge an indebtedness to another upon the condition only that he have a discretion left him, that the obligation given be presented to him at a time specified, or that he should name a time and place at which he should have the privilege of redeeming or renewing the same, and in case the holder refused to present the same, he should forfeit the claim, it certainly would not be insisted that such contract was unconstitutional, illegal or void by reason of such stipulations between the parties. Can it be so, when the law, which is admitted to be part of the contract, fixes such conditions and restrictions ? If individuals can be so bound, a community at large, acting through their corporate officers or agents, would have equal privilege, and if the county scrip occupied precisely the same grounds as bills of exchange, which is by no means admitted, the holder could not justly complain, because the law .was public, was a part of his contract, and he had full notice of its restrictions, terms and conditions at the time the scrip was issued and .come into his hands, and ho accepted the scrip with such conditions in law attached, and he is bound thereby.
Lastly. Were the warrants issxxed and signed by the clerk binding upon the county, if issued withoxxt the direction or order of the county court? Sec. 7, chap.
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Giikgo, 3.
This suit ivas instituted by the appellees petitioning the Pulaski circuit court for a mandamus against the- appellant, as treasurer of said county', and to compel him to accept and pay off certain claims held by the appellees, which they alleged were warrants, legally issued by said county, and for the payment of which the said Parsel, as such treasurer, was liable.
Bo far as appears by the record, the claims held by the appellees were in the usual form of county warrants, duly issued, and were signed by the clerk of the county, and amounted in the aggregate to $975-^/^-, which were duly presented to the appellant for payment, and which he had refused to pay.
Upon the presentation of the appellees’ petition, an alternative mandamus was issued, upon the return of which the appellant appeared and filed 1ns response to the writ, in which he admits the petitioners are the holders of what purports to be twenty-seven pieces of Pulaski county scrip, issued previous to the 15th day of October, 1866, and that the same had been presented to him, as treasurer, for payment; he responds, that at the October term, 1866, of the county court of said county, the court ordered that all county' scrip issued previous to the loth day' of October, 1866, and then outstanding, should be presented to said county court on or before the 13th day of February, 1867, for classification and reissuing, &e.; that said appellees had due notice, and failed to present said supposed county warrants to the county court, &c.; and that thereby they were forever debarred from collecting the same.
The appellant further responded that no order was evermadebyr said county court allowing the demand and directing said clerk to issue warrants tlierefor, but that said clerk issued said supposed warrants wrongfully, without due authority from said county court, and. for that reason ho was not bound to pay the same, and asked to be discharged from the writ.
To which response the appellees interposed- their demurrer, and the court, after taking the case under advisement until a subsequent term, found in favor of the demurrer, and rendered judgment, making the mandamus peremptory against appellant, to Avhich finding and judgment he excepted and appealed to this court.
To sustain the demurrer the appellees insist that the order of the county court, calling in the outstanding scrip, was unconstitutional and void, so far as it was intended to affect the scrip previously disbursed.
Secondly. That the clerk of the county, in the issuance of county warrants, is the duly authorized agent of the county; and if such warrants were regular upon their face, 'and duly signed by him, the county is bound thereby, and it is immaterial to the holder whether or not the county court had made an order allowing such scrip and directing the clerk to issue the same.
Thirdly. That the response wars not verified by affidavit.
In reference to the last cause assigned, we do not hold, in the absence of any order requiring it, that an affidavit was. necessary to this response; but, if we did, we might well question the propriety of presenting that question by general demurrer.
We come to the main questions: Whether the order calling in the county scrip is binding on holders; and whether the county is liable for warrants issued and signed by the clerk without the order of the county court.
By the.act of the General Assembly of January 6, 1857, (secs. 58, 59, and 60, of chap. 147 of Gould’s Digest, p. 925,) it is provided that “ if the county court of any county may deem it expedient to call in the outstanding scrip of such county, in order to redeem, cancel, reissue, or classify the same, or for any other lawful purpose whatever, it shall be the duty of' such court to make an order for the purpose-of fixing a timo for such scrip to be presented, of which order holders of county scrip shall have notice;” and prescribes the manner in which such notice shall be given., requiring it to be published in each township in the county, as well as in newspapers printed and published in the State ; and providing that all persons who hold any scrip of such county and neglect or refuse to present the same, as required by such order of the county court, after the notice aforesaid, shall be forever debarred from deriving any benefit from their claims. It is admitted that the scrip in question was issued since the passage of this act.
The intcntkm of the Legislature is too clear to admit of any doubt. The neglect of duty, or incapacity of • some of .the county officers, often rendered it impossible for the county court, or the tax-payer, to determine the amount of outstanding county scrip; in whoso hands- the same -was, and for what purpose issued; and that the court and the citizens of the county might 1)0 fully advised — might know what amount of revenue was necessary to be raised, etc. — such act seemed important, and there can be no question but the Legislature intended to give the county courts such control over the warrants or scrip of the county as would enable them to take such action as would be most advantageous to the public, and fully intended that all county scrip issued thereafter should be subject to such conditions and restrictions ; and if the law only operated prospectively, as was clearly its intent,'there was certainly no violation of the Constitution in its enactment. But counsel insist that the order was unconstitutional, because made after the issuance of the warrants, without so attacking the law. .It seems well settled that the law existing at the time and place of making a contract must be considered as a part of the contract. See Thurston v. Peay, reer., 21 Ark., 86.
None, of the parties to this suit'question the proposition that the existing law is as much a part of the contract as are the stipulations expressed in the agreement. Should individuals, by express contract, stipulate that the one should acknowledge an indebtedness to another upon the condition only that he have a discretion left him, that the obligation given be presented to him at a time specified, or that he should name a time and place at which he should have the privilege of redeeming or renewing the same, and in case the holder refused to present the same, he should forfeit the claim, it certainly would not be insisted that such contract was unconstitutional, illegal or void by reason of such stipulations between the parties. Can it be so, when the law, which is admitted to be part of the contract, fixes such conditions and restrictions ? If individuals can be so bound, a community at large, acting through their corporate officers or agents, would have equal privilege, and if the county scrip occupied precisely the same grounds as bills of exchange, which is by no means admitted, the holder could not justly complain, because the law .was public, was a part of his contract, and he had full notice of its restrictions, terms and conditions at the time the scrip was issued and .come into his hands, and ho accepted the scrip with such conditions in law attached, and he is bound thereby.
Lastly. Were the warrants issxxed and signed by the clerk binding upon the county, if issued withoxxt the direction or order of the county court? Sec. 7, chap. 49, of Gould’s Digest, declares that the “ county court shall have power in all matters relating to county taxes, disbursements of money for county purposes,” &c., and “to audit, settle and direct the payment of all demands against the county.” Sec. 16, chap. 147, p. 918, declares “ that the treasurer shall receive and receipt for all moneys payable into the county treasury, and pay and disburse the same on warrants drawn by order of the county court.” Section 46 of the same chapter, p. 928, provides “ that when any county court shall ascertain that any sum of money is due from the county to airy person, body politic or corporate, an order shall be made allowing the same, and directing the clerk to issue a warrant therefor,” &e. These are the principal clauses bearing upon the question before the court, and there is no authority or power whatever conferred upon the clerk to issue warrants otherwise than upon the order of the county court. And the law requires all the orders and proceedings of the county court to be made matter of public record. So the full extent of the power and authority of the clerk can readily be seen, by referring to the law and orders regulating his duties, and the complaint that trade is incumbered by thus taxing the diligence of dealers, can have no force, when in conflict with well established principles of law and the general interest that the whole community have in being protected against improvident. or fraudulent acts of faithless officers or agents. See 18 Md. Rep., 282-3. Also ease of Mayor & C. C. of Baltimore v. Reynold, 20 Md. Rep., 11, and Lee v. Monroe, 7 Cranch, 366. We deem it well settled that public officers or agents are held more strictly within the limits of their prescribed powers than private general agents — not only because the extent of their power is more easily seen, but because the rights of large communities are in greater need of diligent guards than those of individuals, whoso selfishness is quite apt to hold in frequent, review the acts of all employees. See Clapp v. Cedar county, 5 Iowa, R., 16. In the ease of Williams v. Payton’s lessee, 4 Wheaton, 77, Chief Justice Marshall said, “ when an agent has a naked power, not cdujaled with an interest, the law requires that every prerequisite to the exercise of such power must precede its exercise — that the agent must pursue the power or his acts will not be sustained.”
So it seems -well settled, also, that the fact that the contract made by a public agent related to a subject within the general scope of his powers, does not bind his principal, if there was a want of specific power to make it. Although a pi’ivate agent, acting in violation of specific instructions yet within the scope of his general authority, may bind his principal, the rule as to the effect of a like act of a public agent is otherwise. See 20 Md. R., 10, and 26 Wend., 193.
Upon these conclusions we find the circuit coui’t of Pulaski county erred in sustaining the appellees’ demurrer to appellants response, for which, the judgment of that court is reversed, and this cause remanded, to be proceeded in according to law, and not inconsistent with this opinion.