The opinion of the court was delivered by
Hoyt, C. J.
The relator constructed certain water works for the county of Thurston, and to pay him therefor the board of county commissioners assigned to him a portion of the delinquent taxes of 1894, which he agreed to receive in full satisfaction of his claim. This proceeding was brought to compel the auditor and treasurer of the county to give effect to the order made in pursuance of the above arrangement.
In State, ex rel. Barton, v. Hopkins, 12 Wash. 602 (41 Pac. 906), we held that it was not within the power of the board of county commissioners to create a special fund upon which a warrant could be drawn in payment of the claim of the relator for the construction of these water works, and, if it were necessary to a decision of this case, we should feel compelled to hold that what was attempted by the order of the board of county ■ commissioners, which by this proceeding is sought to be enforced, was substantially the same as that which we before held could not be done. In that case it was held that a special fund could not be created into which a sufficient amount of the taxes to be collected should be paid to satisfy a warrant drawn thereon to pay relator's claim. .By the order involved in this proceeding substantially the same result was sought'to be accomplished.
The only difference between this action of the board of county commissioners and that which was before held to be invalid, is that the taxes to be collected in the former case did not take on the special character involved in their being set aside for the payment of [61]*61this claim until after they were collected; while the present proceeding contemplated .the impressment of such special character upon the taxes themselves before they were collected. The result to the relator and to the financial transactions of the county, however, would be precisely the same in the one case as in the other. But in view of the more important question which has been ably presented in the briefs of counsel and upon the oral argument, it is not necessary to say more upon this subject.
Appellants and respondent agree that the order which is sought to he enforced could only have been properly made by the board of county commissioners when there was no outstanding indebtedness of the county due and payable out of the general fund. It is also agreed by both parties that there was outstanding at the time this order was made a large amount of warrants which in form were payable out of such general fund. If any of these warrants evidenced a legal indebtedness of the county, it is agreed that it was beyond the power of the board of county commissioners to have made the order under consideration. But respondent claims that none of these warrants evidenced a legal indebtedness of the county, for the reason that the liabilities for which they were each issued were incurred when the county was in debt more than one and one-half per cent, of the value of its taxable property as shown by the last assessment roll. Appellants contend that these warrants are legal for the reason that they were issued in anticipation of the revenue coming to the county from the tax levy of the current year and the unpaid taxes upon the rolls for prior years, and for that reason constituted no part of the indebtedness of the county. This contention might be sustained, if under the law these warrants would [62]*62be first entitled to payment out of such revenue, but the statutes having provided that warrants should ■be paid in the order of their dates, without regard to the year-in which they were issued, those for any particular year would not be a first charge upon the revenues for that year. See Mason v. Purdy, 11 Wash. 591 (40 Pac. 130).
But it does not follow that incoming revenues, which, under proper legislation, might be applicable to the payment of warrants issued after the limit of indebtedness had been passed, should not be taken into consideration in determining the amount of such indebtedness within the meaning of the constitutional provision. If under certain legislation the amount of outstanding claims against the county could exceed the constitutional limit to the amount of such unpaid taxes, there is foundation for the contention that under legislation which requires that the warrants should be paid in the order of their issue the amount of such unpaid taxes should be deducted from the total amount of the claims against the county to determine its indebtedness witbin the meaning of the constitutional ‘ provision.
The agreed facts in the case show that if these unpaid taxes are to be treated as a part of the cash assets of the county and. such assets deducted from the amount of the indebtedness, the balance was less than the one and one-half per cent, authorized by the constitution, when many of the warrants were issued. From which it would follow that the tax could not be assigned for the payment of relator’s claim, for the reason that there were other debts of the county which would be first entitled to payment. Hence, the material questions involved are, (1) can the cash assets of the county be deducted from the outstanding indebtedness [63]*63for the purpose of determining its amount within the meaning of the constitutional provision upon the subject ? and (2) can the amount of the tax roll for the current year and the amount unpaid upon those of prior years be treated as a part of such cash assets ?
The first question has been so often decided in the affirmative that it is not necessary for us to say more than that such is the established rule in all of the states.
The other question is one of more difficulty. Under constitutional provisions of substantially the same force as ours, the most of the states havé adopted some rule under which the revenues to be collected for the current year could be made available prior to their collection. In California, where the constitution prohibits counties from incurring any indebtedness at all and the state from incurring an indebtedness of more than $300,000, it has often been held that the counties could incur obligations and issue warrants therefor payable out of the revenues for the current year to be thereafter collected, and that the state could do likewise to an amount greatly in excess of the $300,000, if such excess did'not exceed the amount to he derived from the revenues of the current year. See State v. McCauley, 15 Cal. 430; Koppikus v. Commissioners, 16 Cal. 249; People v. Pacheco, 27 Cal. 207.
In Iowa certain municipalities were prohibited from incurring indebtedness in excess of five per cent, of their assessed valuation, and the supreme court of that state has frequently held that municipalities in debt to that amount could incur further indebtedness to the amount of the revenue to be derived from taxes assessed for the current year. See Dively v. Cedar Falls, 27 Iowa, 227; Grant v. Davenport, 36 Iowa, 396.
[64]*64In Louisiana the interpretation of a similar constitutional provision is the same. See Laycock v. Baton Rouge, 35 La. An. 475.
Gases from other states to the same effect might be cited, and no case holding to the contrary has been called to our attention. • We, therefore, feel compelled to agree with the contention that the amount of the taxes assessed for county purposes upon the tax roll for the current year must be deducted from the outstanding county indebtedness to determine its amount within the meaning of the constitutional prohibition'.
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The opinion of the court was delivered by
Hoyt, C. J.
The relator constructed certain water works for the county of Thurston, and to pay him therefor the board of county commissioners assigned to him a portion of the delinquent taxes of 1894, which he agreed to receive in full satisfaction of his claim. This proceeding was brought to compel the auditor and treasurer of the county to give effect to the order made in pursuance of the above arrangement.
In State, ex rel. Barton, v. Hopkins, 12 Wash. 602 (41 Pac. 906), we held that it was not within the power of the board of county commissioners to create a special fund upon which a warrant could be drawn in payment of the claim of the relator for the construction of these water works, and, if it were necessary to a decision of this case, we should feel compelled to hold that what was attempted by the order of the board of county ■ commissioners, which by this proceeding is sought to be enforced, was substantially the same as that which we before held could not be done. In that case it was held that a special fund could not be created into which a sufficient amount of the taxes to be collected should be paid to satisfy a warrant drawn thereon to pay relator's claim. .By the order involved in this proceeding substantially the same result was sought'to be accomplished.
The only difference between this action of the board of county commissioners and that which was before held to be invalid, is that the taxes to be collected in the former case did not take on the special character involved in their being set aside for the payment of [61]*61this claim until after they were collected; while the present proceeding contemplated .the impressment of such special character upon the taxes themselves before they were collected. The result to the relator and to the financial transactions of the county, however, would be precisely the same in the one case as in the other. But in view of the more important question which has been ably presented in the briefs of counsel and upon the oral argument, it is not necessary to say more upon this subject.
Appellants and respondent agree that the order which is sought to he enforced could only have been properly made by the board of county commissioners when there was no outstanding indebtedness of the county due and payable out of the general fund. It is also agreed by both parties that there was outstanding at the time this order was made a large amount of warrants which in form were payable out of such general fund. If any of these warrants evidenced a legal indebtedness of the county, it is agreed that it was beyond the power of the board of county commissioners to have made the order under consideration. But respondent claims that none of these warrants evidenced a legal indebtedness of the county, for the reason that the liabilities for which they were each issued were incurred when the county was in debt more than one and one-half per cent, of the value of its taxable property as shown by the last assessment roll. Appellants contend that these warrants are legal for the reason that they were issued in anticipation of the revenue coming to the county from the tax levy of the current year and the unpaid taxes upon the rolls for prior years, and for that reason constituted no part of the indebtedness of the county. This contention might be sustained, if under the law these warrants would [62]*62be first entitled to payment out of such revenue, but the statutes having provided that warrants should ■be paid in the order of their dates, without regard to the year-in which they were issued, those for any particular year would not be a first charge upon the revenues for that year. See Mason v. Purdy, 11 Wash. 591 (40 Pac. 130).
But it does not follow that incoming revenues, which, under proper legislation, might be applicable to the payment of warrants issued after the limit of indebtedness had been passed, should not be taken into consideration in determining the amount of such indebtedness within the meaning of the constitutional provision. If under certain legislation the amount of outstanding claims against the county could exceed the constitutional limit to the amount of such unpaid taxes, there is foundation for the contention that under legislation which requires that the warrants should be paid in the order of their issue the amount of such unpaid taxes should be deducted from the total amount of the claims against the county to determine its indebtedness witbin the meaning of the constitutional ‘ provision.
The agreed facts in the case show that if these unpaid taxes are to be treated as a part of the cash assets of the county and. such assets deducted from the amount of the indebtedness, the balance was less than the one and one-half per cent, authorized by the constitution, when many of the warrants were issued. From which it would follow that the tax could not be assigned for the payment of relator’s claim, for the reason that there were other debts of the county which would be first entitled to payment. Hence, the material questions involved are, (1) can the cash assets of the county be deducted from the outstanding indebtedness [63]*63for the purpose of determining its amount within the meaning of the constitutional provision upon the subject ? and (2) can the amount of the tax roll for the current year and the amount unpaid upon those of prior years be treated as a part of such cash assets ?
The first question has been so often decided in the affirmative that it is not necessary for us to say more than that such is the established rule in all of the states.
The other question is one of more difficulty. Under constitutional provisions of substantially the same force as ours, the most of the states havé adopted some rule under which the revenues to be collected for the current year could be made available prior to their collection. In California, where the constitution prohibits counties from incurring any indebtedness at all and the state from incurring an indebtedness of more than $300,000, it has often been held that the counties could incur obligations and issue warrants therefor payable out of the revenues for the current year to be thereafter collected, and that the state could do likewise to an amount greatly in excess of the $300,000, if such excess did'not exceed the amount to he derived from the revenues of the current year. See State v. McCauley, 15 Cal. 430; Koppikus v. Commissioners, 16 Cal. 249; People v. Pacheco, 27 Cal. 207.
In Iowa certain municipalities were prohibited from incurring indebtedness in excess of five per cent, of their assessed valuation, and the supreme court of that state has frequently held that municipalities in debt to that amount could incur further indebtedness to the amount of the revenue to be derived from taxes assessed for the current year. See Dively v. Cedar Falls, 27 Iowa, 227; Grant v. Davenport, 36 Iowa, 396.
[64]*64In Louisiana the interpretation of a similar constitutional provision is the same. See Laycock v. Baton Rouge, 35 La. An. 475.
Gases from other states to the same effect might be cited, and no case holding to the contrary has been called to our attention. • We, therefore, feel compelled to agree with the contention that the amount of the taxes assessed for county purposes upon the tax roll for the current year must be deducted from the outstanding county indebtedness to determine its amount within the meaning of the constitutional prohibition'.
Can the further contention, that a similar deduction should be made,for the amount of taxes unpaid upon the rolls for prior years, be upheld? There is no good reason why it cannot. No distinction can be drawn between unpaid taxes upon the roll of the current, year and like unpaid taxes upon those of prior years. Those :of the current year have been by the courts treated as a part of the cash assets of the county for the reason that in legal contemplation their collection is certain; but the legal.certainty of collection is in no. manner affected by the fact that'the taxes are not paid- when due. If' the credit of the person against, whom the tax was assessed! coiild alone be looked to there would by no legal certainty of the payment of taxes due or not due. The legal certainty grows out of the fact that the law presumes that the tax assessed upon property will he paid for the reason that the property is liable for the tax, and can be sold if the tax is not paid. • If this legal presumption is warranted as to. taxes when they are assessed, there is no reason why such presumption should not continue until the property has been sold for the purpose of realizing the amount of the.taxes assessed against it. If the lien upon the property assessed is that which [65]*65makes its collection a legal certainty, such legal certainty will continue to exist as long as the lien does, and, as under the law the lien continues until the property is sold, until that stage has been reached the presumption of the certainty of collection remains in as full force as when the tax was first levied. If the taxes upon the roll of the current year should be treated as a part of the cash assets of the county, it follows as a logical conclusion that the amounts upon other rolls, so long as they remain a lien upon the property against which they are assessed, should be held to also constitute a part of such cash assets.
In most states the sale follows closely after the -close of the year for which the taxes are assessed, and for that reason the status of taxes other than those assessed upon the roll for the current year has not been often questioned. Hence, the exact question under consideration has been decided in hut few cases. One of these is that of French v. Burlington, 42 Iowa, 614. In that case the precise question here presented was decided in accordance with the claim of appellants. And in Grant v. Davenport, supra, it was held that a presumption existed that the receipt of the revenues provided for is a legal certainty.
From the decisions to the effect that taxes for the current year can be treated as a part of the cash assets of a municipality, it follows as a logical conclusion that- under our system for the assessment and collection of taxes not only those of the current year but those unpaid, assessed for prior years, should be treated as a part of such cash assets, and upon such logical conclusion and upon the authority of the cases which have announced such a rule, we feel compelled to hold that unpaid taxes constitute a part of the cash [66]*66assets of the county until the lien, of the tax has been merged in a sale of the property.
It follows that the county of Thurston was not, at the time it incurred the obligations for which some, if not all, of its outstanding warrants were issued, in debt beyond the constitutional limit; that such warrants evidenced a legal indebtedness of the county, and that for that reason the board of county commissioners had not the power to make the order in question.
The judgment will be reversed and the cause remanded with instructions to dismiss the proceeding.
Anders, Dunbar and Gordon, JJ., concur.
Scott, J., concurs in the result.