other one available, as is made clear by the language of the proviso itself, and also by another provision contained in the latter portion of the subdivision which authorizes a city, through its council, to "procure and appropriate water rights and title to the same and the necessary real and personal property to make said rights and supply available." It does not appear from the record that the city is now being supplied with water by any person under a franchise or contract, but this is assumed by the parties to be the fact. Consequently we have considered the contention as though the question involved were properly before us for decision.

3. Much contention is made over the question whether the interest, as well as the principal, of the proposed issue of bonds should be taken into account in determining whether an indebtedness will be created thereby in excess of the ten per cent limit authorized by the statute. If the interest should be taken into account and the amount of it be added to the $670,000, of principal, as counsel contend, the sum would exceed ten per cent of the assessed valuation for 1907-the basis upon which it must be estimated-by several thousand dollars. The whole of the issue would then be void. This contention proceeds upon the theory that, when interest is expressly reserved in the contract, it becomes a part of the debt, and hence, in determining the amount of indebtedness which a city may contract by the issuance of bonds, the interest up to the date of maturity must be added to the principal. It is true that the reservation of interest is as much a part of the contract as the main promise (State ex rel. State Savings Bank v. Barrett, 25 Mont. 112, 63 Pac. 1030), yet no authority has been called to our attention which furnishes support for the rule contended for. Interest is merely an incident to the debt, to be paid from time to time or at the date when the principal falls due, in consideration of the forbearance extended to the debtor, and becomes a part of the debt, or a debt at all, only when it has been earned. If this is not the correct rule, then, as observed by the supreme court of Wisconsin in Herman v. City of Oconto, 110 Wis. 660, 86

N. W. 681, "most of the cases in the books relating to the ascertainment of municipal indebtedness have been wrongly decided." The subject has frequently been considered by the courts of last resort in states having constitutional and statutory provisions similar to ours, supra, and the conclusion reached has been almost invariably against the contention here made. (Herman v. City of Oconto, supra; Finlayson v. Vaughn, 54 Minn. 331, 56 N. W. 49; Kelley v. Cole, 63 Kan. 385, 65 Pac. 672; Blanchard v. Village of Benton, 109 Ill. App. 569; City of Ashland v. Culbertson, 103 Ky. 161, 44 S. W. 441; Gibbons v. Mobile & Great Northern R. Co., 36 Ala. 410; Jones v. Hurlburt, 13 Neb. 125, 13 N. W. 5; Epping v. City of Columbus, 117 Ga. 263, 43 S. E. 803; Durant v. Iowa County, 1 Woolw. 69, Fed. Cas. No. 4189; see, also, 2 Abbott on Municipal Corporations, sec. 160.) All of these cases rest upon the principle that the authority granted by the Constitution or statute, as the case may be, to contract a debt, refers to the amount of the debt at the date at which it is created, and has no reference to the amounts of interest which accrue thereafter, and thus construe the fundamental law according to the sense in which the terms "debt" and "obligation" are used in the language of the common people.

Counsel contend, however, that this court foreclosed the question under consideration by the decision in State ex rel. Helena Waterworks Co. v. City of Helena et al., 24 Mont. 521, 81 Am. St. Rep. 453, 63 Pac. 99, 55 L. R. A. 336. It is true there are many statements in the opinion indicating that this court entertained the conviction that the term "obligation," as used in the Constitution, applies to any sort of a contract which will certainly result in a debt in futuro, as well as to one creating a debt in praesenti. But we may not overlook the question actually presented and decided. The contract involved was for a water supply for the city for a term of five years. The city was in default in its monthly payments. It was, at the time the contract was made and at the time the action was brought, indebted much beyond the constitutional limit. The purpose

of the action was to compel, by mandamus, payment of the monthly installments due for many months, amounting to several thousand dollars. The two questions at issue were, whether the contract was void ab initio, as creating an obligation on the part of the city which would inevitably result in a debt in excess of the limit, and whether the installments already due were debts within the meaning of the Constitution. Both questions were answered in the affirmative, the first upon the authority of Davenport v. Kleinschmidt, 6 Mont. 502, 13 Pac. 249, and the second under the rule declared in City of Springfield v. Edwards, 84 Ill. 626, and similar cases. But this conclusion was held not to overrule or discredit the earlier case of State ex rel. Great Falls Waterworks Co. v. Great Falls, 19 Mont. 518, 49 Pac. 15; on the contrary, the rule announced therein was approved. That was also an application for mandamus to compel the defendant city to pay installments due upon a similar contract for a water supply furnished to the city by the relator. While approving the conclusion stated in Davenport v. Kleinschmidt, supra, this court held that inasmuch as the statute then in force (Session Laws 1889, sec. 16, p. 185) authorized the city to levy a special tax for a water supply, and inasmuch as the contract had been entered into in contemplation of a special fund being thus created by the city to meet the installments due from time to time, the contract did not create a debt within the meaning of the prohibition, and that the city should levy the tax and devote the proceeds to the payment of them. The interest charge here falls clearly within the rule of this case. Section 3459 of the Revised Codes provides: "A tax to be fixed by ordinance must be levied each year for the purpose of paying interest on the bonds [for water and sewer purposes] and to create a sinking fund for their redemption." The legislature in the enactment of this provision clearly evinced the intention that the interest installments falling due upon such bonds from time to time should not be deemed an indebtedness within the meaning of the Constitution, but that they should be paid out of the special fund thus created;

and it cannot be doubted that mandamus would lie, just as in the Great Falls Case, to compel both the levy of the tax and the payment of interest out of the special fund thus provided, and this without regard to the general rule declared in the cases supra: That interest reserved is not to be taken into the estimate in ascertaining the amount of a city's indebtedness.

Counsel for respondent also cite and rely with confidence upon the case of Coulson v. City of Portland, Fed. Cas. No. 3275, 6 Fed. Cas. 629. It is not directly in point either in fact or principle, but, were it so, in view of the foregoing considerations, we are not inclined to accept and follow it as authoritative.

4. Counsel submit the question whether the authority conferred upon the city council by the election of April, 1908, lapsed at the time of the completion of the assessment-roll for 1908. It is contended that since the Constitution provides that the question whether the debt shall be incurred must be submitted to the taxpayers "to be affected thereby," and property is transferred from time to time, the body of the taxpayers changes from year to year, and hence that the persons whose names appear upon the roll completed for the year 1908, and who are to be affected by the indebtedness, were entitled to be consulted. The provision of the Constitution must be given a reasonable construction. The necessities of a particular city or town may require it to incur an indebtedness at any time. So it requires time in which to hold the election. It requires time for the council, in pursuance of the authority conferred by the election, to advertise and put the bonds upon the market. The limit of time fixed by law during which the annual roll must be completed is the first Monday in October. (Revised Codes, sec. 2609.) If after the beginning of any year it should be necessary to issue bonds, and from any unforeseen delay, resulting from litigation or mistake, or any other like cause, they should not actually be sold and the money received for them before the first Monday in October, then, under the construction contended for, all the proceedings already had would be nugatory. A more reasonable view is that, after the election has been held and the indebtedness authorized,

the council may proceed to issue and sell the bonds, provided only that the authority conferred is executed with reasonable diligence. Although, in the meantime, there may have been changes in the body of the taxpayers affected by the increased indebtedness, this fact should no more affect the validity of the bonds than should such changes during the progress of the election. The body, as a body, to be affected having expressed its assent, this assent should not be rendered abortive by fluctuations in its numbers from day to day. After the authority to incur an indebtedness beyond the constitutional rate has been granted, the requirements of the fundamental law should be deemed satisfied, provided the council proceeds with reasonable diligence and the amount of indebtedness incurred does not exceed the rate of the extension when calculated upon the basis of either assessment-roll. (Seymour v. City of Tacoma, 6 Wash. 427, 33 Pac. 1059; Chicago, Burlington & Quincy R. R. Co. v. Village of Wilber, 63 Neb. 624, 88 N. W. 660.)

5. It is said that the authority of the city to incur an indebtedness does not include an authority to issue bonds, and therefore that two elections were necessary to authorize the proposed issue, (1) To extend the limit and incur the indebtedness, and (2) to issue bonds. It is not necessary to inquire whether the power conferred upon a municipality to incur indebtedness does not imply the additional power to issue evidences thereof, in the form of negotiable securities. Here the authority is expressly given. The Constitution does not prescribe the mode by which the legislature may authorize submission to the taxpayers of the question whether an indebtedness shall be incurred. The legislature, therefore, was free to prescribe such method as it chose. The method of procedure and the form of the question to be submitted by the council are prescribed in sections 3454 et seq., Revised Codes. The form of the submission requires the electors to vote "Yes" or "No" upon the question whether bonds shall be issued; so that, in voting upon this question, they authorize the debt to be incurred by the issuance of bonds. The contention must be overruled.