Higgins

On a former bearing of this cause judgment in favor of tbe city of San Diego was reversed, with direction to tbe superior court to enter judgment in favor of tbe water company for tbe reasonable value of tbe use of its distributing plant, etc., said judgment to be payable only out of tbe revenue of those fiscal 3 cars during wbicb tbe city held possession of tbe plant. A rebearing was ordered principally upon tbe question as to tbe proper form of tbe judgment. Hpon further consideration of tbe case, we have reached tbe con-| elusion that the water company should have an ordinary general judgment for whatever amount shall be found due it, without any direction as to tbe revenues out of wbicb tbe judgment shall be satisfied. Tbe opinion rendered at tbe former bearing must also be modified in tbe other particulars hereinafter stated.

We have no desire to disturb tbe principle that no indebtedness or liability incurred in any one year shall be paid out of tbe ordinary income or revenue of any future year, which principle has been declared by a long line of decisions running from tbe case of San Francisco Gas Co. v. Brickwedel, 62 Cal. 641 , to McBean v. Fresno, 112 Cal. 159 ; 53 Am.…

concurring. Uponthe former decision in this case I dissented from the conclusion reached by a majority of the court, upon grounds not involving the form of the judgment to be entered. The form of judgment then directed was in accordance with the directions of this court in the case of Weaver v. San Francisco,, 111 Cal. 319 , in which I participated. As is very pertinently observed in the foregoing opinion, the only question then before the court-was the right to divert the revenues of one fiscal year to the payment of liabilities incurred during a preceding fiscal year. It was not intended to' hold, and there is no reason for holding, that, if at any future time the municipality shall by any legal mode assume the payment of such liabilities, it cannot be enforced out of the funds thus provided for their payment, since in that case the assumption of the liability would form the basis of a new obligation which would not be limited or affected by the previous judgment. But, as in any attempt to enforce a judgment against a municipality, the municipality would have the right to show in what year the obligation upon which the judgment was rendered was incurred, and to insist that it…

dissenting. I dissent, and if my duties will permit will hereafter file an opinion expressing the grounds of my dissent.

concurring. On a former hearing of this cause, the judgment in favor of the city of San Diego was reversed, with directions to the superior court to enter judgment in favor of the water company for the reasonable value of the use of its distributing plant, etc., said judgment to be made payable only out of the revenues of those fiscal years during *530 which the city held possession of the plant. The direction that the judgment should be entered" in this specific form was based upon the decision of Department One of this court in Weaver v. San Francisco, 111 Cal. 319 , and the apparent acceptance of the doctrine of that case by Department Two in McBean v. Fresno, 112 Cal. 159 ; 53 Am. St. Rep. 191 .

But both of these cases were decided after the submission of this case, and the question of the form of the judgment had not been raised or argued by counsel for these parties. For that reason a rehearing was granted, in order that the whole matter might be reconsidered in the light of fuller argument before the court in Bank should commit itself to a final decision upon a proposition so important in its consequences.

What we have to decide is the proper application of section 18 of…