of said office, nor made any claim to act as such officer, but for all time since the said fifteenth day of April, 1891, and now, the duties of the office of city treasurer have been performed by other persons. Defendant further alleges that none of the purported warrants were issued or signed by the mayor and countersigned by the auditor, or issued or signed by any officer of the city of Tombstone authorized to sign the same, but defendant alleges that all of said purported warrants were made out in the handwriting of W. C. Staehle, and signed by A. B. Staniger some time during the year 1894, long after the time which they each respectively bear date and purport to have been signed, and at a time when neither the said Staniger nor Jackson was holding, occupying, or enjoying, or attempting to hold, occupy, or enjoy any office of the city of Tombstone, or to discharge any of the duties of any office of the city of Tombstone, and that none of the said purported warrants set out in plaintiff's complaint bear the signature of the mayor of said city, as required by law; and defendant alleges that said purported warrants and each and all thereof, are spurious and fraudulent, and not the genuine city warrants of the city of Tombstone, and constitute no legal evidence of indebtedness against said city. Defendant alleges that on or about the twenty-fifth day of April, 1893, the said Bravin, Staniger, Staehle, and Jackson brought their several actions in the district court of Cochise County against the mayor and common council of the city of Tombstone, which several actions were entitled and numbered as follows: George Bravin against the Mayor and Common Council of the City of Tombstone, No. 1718; A. B. Staniger against the same, No. 1721, W. C. Staehle against the same, No. 1722; R. E. Jackson against the same, No. 1723; that in each of said actions plaintiff asked the court for a mandate commanding the said defendants to issue to them severally city warrants for salaries; that each of said actions was tried by the said district court, and judgment was made and entered in each of said actions for and in favor of the city of Tombstone, which judgments have each long since become final, and have never been reversed or set aside, and they are now each in full force and effect, and defendant therefore pleads those several actions, and the judgments rendered therein, as estoppels against the right of the said Bravin, Staniger, Staehle, and Jackson, or their assigns, to maintain this action. The application to fund was made by the plaintiff, claiming to be the owner and holder of the warrants, the same having been assigned to it by the original holders. This assignment and ownership was denied in the verified answer of the defendant the city of Tombstone, and the evidence presented in the record not only fails to establish such assignment and ownership, but establishes the contrary. The warrants introduced in evidence do not show an assignment by indorsement to plaintiff. They are drawn restrictively to the several persons named, and are not made payable to their order. Some have the name of the payee written in blank upon the back, and some have no indorsement by payee whatever. The original holders of the warrants, as witnesses for the plaintiff, testified that they have not parted with their interest in the same, or received any value for a transfer of such interest. That leaves the plaintiff without any right to demand the funding of said warrants. There is imposed on the loan commission no duty to this plaintiff to fund the warrants, even if the same were properly fundable on presentation and demand by the owner or real party in interest. The warrants are presented as evidence of municipal indebtedness. Act No. 39, (Laws 1881, p. 37), which for brevity is herein referred to as "the charter" of the city of Tombstone, only authorized the incurring of indebtedness in a certain manner, and provided for the creation of certain offices and the appointment of officers to fill such offices, fixed the amount of the salaries and compensation of such officers, and provided for the payment of such amounts and of all other indebtedness of the city, as follows: Section 5 of article 2 (p. 41) provides that "The mayor and common council shall have the further power, by ordinance, to create the offices of city attorney, . . . city assessor, city treasurer, and such other offices as they deem proper, and shall appoint officers for such offices, whose duties, powers and terms of office shall be prescribed by the common council." Section 2 of article 9 (p. 70) provides that "The salaries and compensation of the city attorney, city treasurer, assessor, . . . and all other officers appointed by the mayor and common council shall be fixed by said common council at such sums or amounts as they may deem just and equitable." Section 1 of article 10 (p. 71) provides that "The city of Tombstone shall not be, and is not bound by any contract, or in any way liable thereon, unless the same is made in writing by order of the common council, the draft thereof be approved by the common council and the same ordered to be and be signed by the mayor, or some other person, in behalf of the city." Section 17 of article 10 (p. 74) provides that "All claims and demands against said corporation shall . . . be presented to the council, and shall be by them referred to a committee on finance, who shall examine, audit, or allow or reject the same in whole or in part, subject to the approval of the common council. . . The common council shall thereupon proceed to consider the report of the committee, and the claims or demands presented, and shall, if the same be just and legal, order the same to be paid, and shall require the auditor to draw a warrant upon the city treasury in favor of the holder of such claim, or demand for the amount allowed; such warrant shall be signed by the mayor and countersigned by the auditor." Section 18 of the same article further (p. 74) provides that "No suit shall be brought upon any claim for money or damages against said corporation until such claim or demand has been presented as aforesaid and rejected by the common council, whole or in part; if rejected in part, suit may be brought to recover the whole. Nor shall suit be brought against said corporation upon any such claim or demand if the common council shall allow the whole of such claim or demand, and shall order the same to be paid as hereinbefore required; provided, that nothing herein contained shall be construed as to deprive the holder of any claim or demand of his right to resort to a suit of mandate or other proceeding against the said common council, or any officer of said city, to compel them or him to act upon said claim or demand, to draw or sign such warrants, or pay the same when so drawn." Under the provisions of this law the salaries for the officers in question were fixed by the common council and paid by warrants drawn by the auditor upon the city treasury, which warrants were signed by the mayor and countersigned by the auditor. But act No. 109 (Laws 1885, p. 315), amended section 5 of article 2 of the charter to read as follows: : "Section 1. The officers of the city of Tombstone shall be the mayor and common council, one treasurer, who shall receive the monthly salary of fifty dollars per month; one city attorney who shall receive the monthly salary of fifty dollars per month, one auditor, who . . . shall receive . . . the monthly salary of ninety dollars; one assessor, who shall receive a monthly salary of ninety dollars. . . . "Sec. 2. The auditor of the said city of Tombstone is hereby authorized and directed to draw warrants on the salary fund for each office in said act mentioned, and for the amount specified in said act, said warrants to be drawn on the first day of each month. "Sec. 3. All warrants drawn by the auditor for salaries as provided for by this act, shall be drawn on said salary fund, and if at any time the amount of money in said fund is insufficient to pay the warrants so drawn upon demand, the mayor and common council of said city are hereby authorized and directed to transfer from the general fund of said city to said salary fund so much money as may be necessary to pay said warrants.' This act, while declared to be an amendment of section 5 of article 2 of the charter, also (in effect) amends section 17 of article 10 thereof by excepting the monthly salaries of the officers therein mentioned from the claims and demands dependent upon the approval of the finance committee of the common council, and by constituting the same just and legal demands against the city, for which, instead of the common council requiring the auditor to draw warrants upon the city treasury in favor of the holder of such claim for the amount allowed as provided by said section 17, the auditor is authorized and directed by this act to draw warrants on the salary fund for each office on the first day of each month. The extent and effect of this amendment is to fix definitely the compensation of the several officers, and to make such amounts a just and legal monthly claim against the city, and to authorize the auditor to draw a warrant for the same without any further authority or requisition from the common council. But there is no further change of procedure required by the amendment, and nothing in it to except the warrants from the requirement made of all warrants that they be signed by the mayor and countersigned by the auditor. A refusal of the mayor to sign, or the auditor to draw or countersign, such warrants, would entitle the claimant to his relief by mandate under the provisions of section 18 above cited. This relief the original holders of the warrants, the alleged assignors thereof to the plaintiff herein, sought by proper action in the district court in the actions above referred to, in each of which the judgment of the district court was rendered against them severally and in favor of the city of Tombstone. These judgments, having never been vacated, set aside, nor appealed from, remain in full force and effect, and preclude the parties thereto and their successors in interest from any further action for the subject-matter involved therein. The matter adjudicated in that suit was the right of the parties to receive warrants, such as the ones purporting to be herein presented, for their services, and the duty of the city of Tombstone or its officers to issue to them such warrants. This was definitely determined against the applicants and in favor of the city. The judgments in these cases have rendered res judicata the question of any duty resting on the city of Tombstone to issue to these parties warrants such as those presented herein purport to be. The present action, however, is an action brought upon what purport to be such warrants that are alleged to have been issued thereafter by officers of the city authorized to bind the city by their action. If, notwithstanding the adjudication of its duty in the premises, the city has since that time issued such warrants, and the warrants in question are genuine, bona fide warrants of the city of Tombstone-outstanding obligations evidencing a municipal indebtedness-the duty of the loan commissioners to fund such warrants is the sole question to be determined in this action. The warrants in question show by their form that the signature of the mayor was contemplated, the warrants being drawn with a blank space for the name, and the word "Mayor" printed thereunder. They appear from the evidence to have been executed, so far as they have been exe cuted, by the parties interested, after such parties were no longer discharging the duties of the offices to which they claim title, and when they were not in possession of the supplies or funds of the city. The warrants were all drawn and |