¶1Reversed September 8, 1914.
¶2On the Merits.
¶4delivered the opinion of the court.
¶5This is a suit brought by the plaintiffs to enjoin the City of Astoria and its officers from issuing warrants and to restrain the payment from the general funds of any portion of the cost and expenses of the improvement of Irving Avenue west of the west line of Eighteenth Street to the east line of that part of the City of Astoria as laid out by John M. Shively. The City of Astoria, having undertaken to grade and improve Irving Avenue from the west line of Eighteenth Street east for several blocks, advertised and let the contract for such improvement to one Goodin for $18,900. In the improvement of the portion thereof between Eighteenth and Nineteenth Streets, where an extensive fill was necessary, the said attempted fill .settled as fast as completed, and eventually slid down the side of the mountain, causing great damage; and Goodin, in the attempt to complete the work, became insolvent, and abandoned the work without completing the portion thereof between the west line of Eighteenth Street and *509the east line of Nineteenth Street. As provided in the contract, Goodin was to receive warrants against a special fund to he provided by assessment for the expense of the improvement against certain property within the improvement district, and said warrants were issued to and cashed by him, or sold to various parties, among others being the Scandinavian-American Savings Bank. Without the completion of said work the city was unable to collect the assessments for the improvement of said street, or pay said warrants, and provided by Ordinance No. 4416 for the appropriation of $21,000 out of the general fund of the city for relief of the holders of the warrants upon the special fund intended to defray the expense and cost of the said improvement. The case was tried in the Circuit Court, which made findings in favor of the city, approving said Ordinance No. 4416 and dismissing plaintiffs’ suit.
¶6
“No part of the expense of improvement of any street … by grading, paving … or otherwise shall *510be paid from the general fund, … but the whole expense of such improvement … shall be defrayed by special assessment upon lots … included in a special assessment district.”
¶7It is held in Northern Pacific L. & M. Co. v. East Portland, 14 Or. 3 (12 Pac. 4), that upon a contract for the improvement of a street the city has no power to pay the contract price out of the general fund of the city; but in that case it is held that a general liability will attach in case the city fails to observe the various forms of the charter by which the special fund is to be realized, and it was held liable for the payment. The contractor had completed his contract, but the city failed to perform some act necessary to raise a special fund. In Portland Lumbering & Manufacturing Co. v. East Portland, 18 Or. 21 (22 Pac. 536, 6 L. R. A. 290), that decision was followed, and the city was held liable. Mr. Justice Lord, concurring in that opinion of Mr. Justice Strahan, holds that a failure to comply with any of the requirements of the charter by which a special fund may be realized would subject the city to a general liability. He says:
“For the purposes of this case, it may be admitted that a municipal corporation cannot contract in any other mode than is authorized by its charter. … The reason is plain. As the city is without any general power to contract for and provide the funds to pay for such improvements, except by way of local assessments, it necessarily results that it cannot be subject to any general liability. To subject the city to a general liability, there must be some general power under which it would be authorized to raise the funds to pay for such improvements-. But where such general power is conferred, and an improvement is projected to be paid for out of funds to be derived from local assessments, and the city authorities upon whom is devolved the duty, neglect or fail to take the requi*511site proceedings to create the lien which is, to supply the funds to pay for such improvement — the improvement being within the scope of the general power of the corporation, independent of the special mode by local assessments — such neglect or omission, after the improvement is made, will subject the city to a general liability to pay therefor. … If the city has not such general power, but is confined exclusively in making and defraying the expenses of such improvements to .the fund derived from local assessments upon abutting property, there would be no authority, even though there was a failure to perform all the required acts intended to provide such fund, and to subject the acts to a general liability. It would be ultra vires, and, in my judgment, the case in-14 Or., supra, would not lie sustained. The right to subject the city to a general liability finds its authority in the general power conferred to make such improvements, as without it such improvements could only be authorized in the special mode prescribed, which would necessarily be exclusive, and could only be paid for out of the funds derived from local assessments.”
¶8But the Astoria statute can have no such construction, as it expressly provides that “no part of the expense shall be paid from the general funds,” which is an inhibition against any general liability. It is therefore beyond the power of the city to pay the warrants upon the special fund by an appropriation from the general fund. The concurring opinion of Mr. Justice Lord, just quoted, which we recognize as good law, is conclusive of this case, and it is beyond the power of a city to relieve the contractor or his assignee of these warrants, regardless of the apparent meritorious claim of the contractor or of the bank. The contractor entered into the contract, and when the bank took over the special fund warrants, it did it with knowledge of the warrants from which the money was to come to pay them. The charter must be considered as a part of *512the contract with Goodin. Undoubtedly the hardship of the situation appealed strongly to the members of the council, as it does to us, but that cannot change the law. The contractor did not earn the money, and it was out of the power of the city to create the special fund by reason thereof, which renders it unnecessary to consider the other points suggested by plaintiffs’ counsel.
¶9The decree is reversed, and one rendered here as prayed in the complaint.
¶10Reversed. Rehearing Denied.
¶11Denied October 6, 1914.