that plaintiffs purchased from defendants certain potatoes, which were warranted to be merchantable and suitable and fit for the market in Denver. Plaintiffs paid the purchase price, except the sum of one hundred and thirty-two dollars. For this sum suit was brought against plaintiff in the justice court. Appellants appeared and answered, setting up a counterclaim for five hundred dollars damages for violation of the warranty. This plea was stricken out by the justice on the ground that he had no jurisdiction-the demand being for more than three hundred dollars.

Plaintiffs then brought this action in the superior court, and asked that the justice be enjoined from proceeding with the case pending before him, but that the entire matter may be litigated in the superior court.

In the complaint plaintiffs claim damages in the sum of five hundred and twenty-five dollars for the alleged violation of the contract of sale, and if their right to an injunction is sustained, the effect will be to compel the plaintiff in the justice's court to plead his demand in the superior court as a counterclaim and to permit the whole controversy to be there tried.

If plaintiffs are entitled to this remedy, it is solely upon the ground that under the peculiar circumstances. of the case the jurisdiction of the justice court is too limited to afford them relief. They cannot be required to remit a portion of their demand to enable them to put in a counterclaim of which the justice has jurisdiction, and a judgment entered in the justice court by default or consent would probably be a bar to the suit for damages in the superior court.

But, whether this would be the case or not, the entire issue is one which the practice here authorizes the parties to have determined upon one trial, and evidently that cannot be done in the justice's court.

This is a well-known ground of equitable jurisdiction. It is not a case in which a party being entitled to some remedy, which ony a court of equity can give, and which having obtained jurisdiction for one purpose

will proceed to adjudicate upon the whole controversy; nor is it a case where a court of equity will interfere to prevent a multiplicity of suits. The demand of the plaintiffs and that of the defendants only involve legal issues; but the defendant Diggs has brought his action in a court which has complete jurisdiction of his case, but has not jurisdiction sufficiently broad to enable it to entertain a counterclaim of the other party-a counterclaim which grows out of the very transaction upon which Diggs' claim is founded-and neither can get relief without having the claim made by the adverse party passed upon.

In such case I think plaintiffs are clearly entitled to the relief sought. If the counterclaim sought to be set up did not grow out of the same transaction and did not involve a trial and determination of the same precise issue, so that the determination of one case could be pleaded as a bar to the other, the case would be different.

Nor do I think the power to enjoin proceedings in such a case is likely to be abused. A bond must be given upon the issuance of the injunction, and if it is wrongfully done, the party will be taxed for costs and damages. By such a bond the demand made by the plaintiff in the justice court may be secured.

The judgment and the order refusing the injunction are reversed.

BEATTY, C. J., and HENSHAW, J., concurred.

[S. F. No. 288. Department Two.-June 6, 1896.]

PACIFIC UNDERTAKERS, RESPONDENT, v. A. C. WIDBER, TREASURER, ETC., APPELLANT.

MUNICIPAL CORPORATIONS-INDEBTEDNESS IN EXCESS OF REVENUE-CONTRACT FOR BURIAL OF INDIGENT DEAD.-A claim arising under a contract for the burial of the indigent dead during the fiscal year is not exempt from the operation of section 18 of article XI of the state constitution, forbidding the incurring of any indebtedness or liability for any purpose exceeding in any one year the revenue provided for it for such year without the assent of the electors expressed at an election.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco. A. A. SANDERSON, Judge.

The facts are stated in the opinion of the court.

Harry T. Cresswell, and W. I. Brobeck, for Appellant.

Each year's income and revenue must pay each year's indebtedness and liability; and no indebtedness or liability incurred in any one year, can be paid out of the income or revenue of any future year. (San Francisco Gas Co. v. Brickwedel, 62 Cal. 641; Shaw v. Statler, 74 Cal. 258; Schwartz v. Wilson, 75 Cal. 502; Lewis v. Widber, 99 Cal. 412; McGowan v. Ford, 107 Cal. 177; Smith v. Broderick, 107 Cal. 644; 48 Am. St. Rep. 167.) The liability in the present case resulted in whole and in part from the contract which the board of supervisors entered into with respondent, and independent of said contract respondent would not now, nor could it ever have, any claim against the city and county of San Francisco. (Const. art. XI, sec. 18; Cashin v. Dunn, 58 Cal. 581; Welch v. Strother, 74 Cal. 413; Lewis v. Widber, supra; Stats. 1860, p. 272; Stats. 1877-78, p. 820; Von Schmidt v. Widber, 105 Cal. 152.)

Wheaton, Kalloch & Kierce, for Respondent.

As respondent's demands are the result of obligations imposed by law, they are without the inhibition of section 18, article XI, of the constitution, and must be paid

whenever there is money in the general fund with which to pay the same, irrespective of what year the general fund may belong to. (Pen. Code, secs. 292, 293; Stats. 1883, p. 306; Stats. 1891, p. 306; Stats. 1893, p. 358; Lewis v. Widber, 99 Cal. 412.) The demands are akin to salary demands, and it makes no difference that the amount is not fixed by statute. (Ex parte Reis, 64 Cal. 233; Aid Society v. Reis, 71 Cal. 634; Ex parte Widber, 91 Cal. 367.)

MCFARLAND, J.-The Pacific Undertakers, a corporation, filed a petition in the superior court for a writ of mandate commanding A. C. Widber, treasurer of the city and county of San Francisco, to pay certain demands against said city and county amounting to eightythree dollars and three cents, which had been regularly allowed and audited. The prayer of the petition was granted, and Widber appeals.

The demands were presented to the treasurer on June 26, 1893, and were for services rendered in burying indigent dead during the months of April and May, 1893; but the general fund of the treasury was entirely exhausted, and there was no money of the fiscal year ending June 30, 1893, to pay said demands, and there has not since been any money of said fiscal year to pay the said demands. However, since the first day of July, 1893, there has been, and at the time of the filing of the petition there was, sufficient money of the income and revenue of subsequent fiscal years with which to pay said demands.

Respondent contends that the nature and character of the demands here sought to be enforced exempt them from the operation of the provision of section 18, article XI, of the state constitution, that no county, etc., shall "incur any indebtedness or liability, in any manner or for any purpose, exceeding in any year the income and revenue provided for it for such year, without the assent" of the electors expressed at an election, etc., as construed in San Francisco Gas Co. v. Brickwedel, 62

But the

Cal. 641, and subsequent cases on the subject. contention cannot be maintained. To sanction it would be to open the door to a rush of claims that would practically sweep away the entire constitutional provision in question.

The demands here involved arose out of a contract between the petitioner and the board of supervisors, by which the former was to bury the indigent dead for one year, commencing July 1, 1892, and ending June 30, 1893-the close of the fiscal year-at a certain sum for each burial. The contract was made after an advertisement for bids such as is required by law in the letting of contracts for services, goods, wares, etc., the petitioner being the lowest responsible bidder. By an act of the legislature of April 27, 1860 (Stats. 1860, p. 272), the board of supervisors was given, among other powers, authority "to allow and order paid out of the general fund such sums as are now due, or may become due, for burying the indigent dead." By section 292 of the Penal Code the duty of burying the body of a deceased person is imposed on certain relations in an enumerated order, and if there be no such relation, then upon the coroner who held an inquest on the body, and, if there be no such coroner, then "upon the persons charged with the support of the poor in the locality in which the death occurs"; and, if all these "omit to act," then upon the tenant or owner of the premises where the death occurred or the body is found. Section 293 provides that "every person" upon whom the duty rests who omits to perform it within a reasonable time is guilty of a misdemeanor, and is liable to the person who performs the duty in treble the expenses incurred by the latter in making the burial. And it is contended by petitioner that under these statutory provisions the demands here sought to be enforced are obligations imposed by law within the ruling of this court in Lewis v. Widber, 99 Cal. 412, and therefore not within the declaration made in San Francisco Gas. Co. v. Brickwedel, supra, that "each year's income and revenue must pay