No appeal lies from the mere order or decision setting aside the report of the referee; and, though recited in the stipulation, the transcript fails to show any further order granting or denying the application, granting or refusing a new trial, or any final judgment or order whatever from which an appeal would lie. This difficulty arises from the error of the court in ordering a reference of the cause, and subsequently in failing to either grant or deny the application. We will not stop, however, to discuss the validity of a reference of "issues" or "questions" of law, under our code of practice, without consent of the parties entered upon the record. In a proceeding for a mandamus our statute contemplates that questions of fact and of law shall respectively be determined in the manner pointed out - questions of law being for the court. In this case the issues raised on the affidavit and answer are questions of law- the only issue of fact joined being the denial by respondent that he had, prior to the commencement of the action, received money as treasurer appropriated by law to payment of the warrant, and this really involving a question of law. Although the court below did not take such final action as would bring these questions before this court on appeal, yet, regarding them as of interest, and in view of the intention of the parties, as indicated by their stipulation, we will proceed to consider them as presented by the pleadings, treating the report of the referee upon the issue of fact as a special finding of the court, and regarding the order setting it aside as an order denying the application of appellant on the facts as shown by the record.

The respondent bases his refusal to pay the warrant, in substance, upon the orders of the board of county commissioners set out in the answer, and that the money in the treasury was not by law appropriated to such payment.

If those orders of the board were made by competent authority, within the limitations of legislative power, they would, of course, furnish a legal justification of his refusal. To determine whether such is the case, we must first refer to the acts of the legislative assembly conferring powers

upon the commissioners, as it is not contended that they possess any legal powers, except such as may be rightfully conferred upon them by the legislature, in the exercise of its powers under the constitution and acts of congress.

The act of November 22, 1867, is relied upon as conferring this power upon the board. The constitutionality of this statute is questioned by appellant, but, properly interpreted, we regard it as upon a rightful subject of legislation, and within the scope of legislative powers.

It is claimed, however, by respondent that, under this statute, the county commissioners possessed the power to require, by an order, that all holders of warrants, issued prior to the date of their first order, should surrender them for cancellation, and receive bonds in lieu thereof; and that this act, upon the making of such order, in effect repealed all prior laws providing for payment of outstanding warrants out of the treasury, leaving such warrants as were not surrendered unprovided for. We do not so regard it. While we admit the power of the legislative assembly, either by direct laws or through the commissioners, to control the financial affairs of a county, subject only to well established limitations, we would be forced to deny the power claimed to require the surrender of evidences of county indebtedness by the holders on any terms or conditions, whether favorable or unfavorable to the latter. The county revenues might be appropriated by law to other purposes than payment of the outstanding indebtedness, leaving that unprovided for, and whatever violation of moral obligation or of public faith this might be, the creditor, unless in some case of vested right, would be without legal remedy. This subject we have discussed in another case and will not pursue farther.

We do not think the act in question intended a compulsory change of the form of the county indebtedness. In construing a statute it is the duty of a court, where one of two constructions will render it inoperative, or even simply harsh, and another valid, to give it such construction as will sustain it.

We hold, then, that the statute of November 22, 1867, simply conferred upon the commissioners the power, which, without it, they did not possess, to issue bonds bear ing liberal interest, and substitute them for outstanding orders, and thus sustain the financial credit of the county. The exchange was not to be compulsory, but dependent on the will of the holders of warrants. In this light it is a wise and just measure; and we fail to see, as is claimed by respondent, how such construction renders the statute nugatory.

The question then recurs as to what were the rights of appellant, if declining to surrender his warrant under the order of the board. Unquestionably to have it paid, according to its terms, out of money in the county treasury not otherwise appropriated by law. The answer of respondent avers that, at the time of the presentation of the warrant to him, he had not in his hands money appropriated by law to its payment. The finding of the referee on this issue was, that "on the 17th day of April, 1868, when demand of payment of plaintiff's warrant was made, by reason of further receipts and the funding of prior warrants, he had received more than sufficient money to pay plaintiff's warrant, supposing that it was entitled to be paid in its regular order, without regard to the funding law and the order of the commissioners."

The money, then, was in the treasury. Was it appropriated by law to the payment of the warrant?

By an act of the legislative assembly, entitled "An act defining the duties of county treasurers, and the payment of county warrants," approved November 19, 1867, it is provided that county warrants "shall be paid in the order in which they are presented" to the county treasurer for payment. It is urged by respondent that this law was repealed by implication by the act of November 22. It is a primary principle that statutes in pari materia shall be so construed as that, if possible, all shall stand. The interpretation we have given the latter act removes all conflict between it and the former one, and gives effect to both.

The act of November 22d permitted the commissioners to appropriate but one-fifth of the county revenue annually to payment of bonds, leaving the remainder to be applied in accordance with previous laws. The order of the commissioners, of February 1st, set apart $3,000 of the ordinary revenue of the county for 1868 for the payment of outstanding bonds, and it is to be presumed that amount constituted the one-fifth of the revenue of the county for that year permitted by law to be appropriated for that purpose; if it was more it was unauthorized by the law. The remainder of the revenue, then, was subject to the disposition made by prior laws. The act relating to counties and county officers, approved February 9, 1865, in specifying the duty of the county treasurer, provides that "all moneys received by him for the use of the county shall be paid out by him only on the orders of the board of commissioners, according to law, except when specified provision for the payment thereof is or shall be otherwise made by law." Under this act, and that of November 19, 1867, it appearing that appellant's warrant was entitled to payment in the order of presentation, and that the money in the treasury, at the time of its presentation to respondent for payment, was not set apart under the order of February 1st of the board of commissioners as part of the $3,000, or otherwise appropriated by law, it was the duty of respondent, notwithstanding the last order of the commissioners, to apply it to payment of the warrant.

The judgment of the court below is reversed with costs, and it is ordered that a peremptory writ of mandate issue out of this court, directed to the treasurer of Deer Lodge county, commanding him to pay to appellant, holder of the county warrant hereinbefore described, the amount of said warrant, with interest on the same at the rate of ten per cent per annum from April 17, 1868, out of any money in the treasury not otherwise appropriated by law.

KNOWLES, J., concurred.

granted.

Exceptions sustained.

Peremptory writ of mandate

The respondent filed a motion for a rehearing, which was denied at the same term for the reasons contained in the forgoing opinion.

LANGFORD, respondent, v. KING, Treasurer of Lewis and
Clarke County, appellant.

TERRITORIAL WARRANT-how paid. A territorial warrant, duly issued, pre-
sented for payment and "not paid for want of funds," in July, 1867, and
subsequently sold by the owner, could not be paid by the Territory in money
or taxes, at its option, in July, 1868.

TERRITORIAL WARRANTS—no contract for their payment. The statute in force
in July, 1867, giving the holders of territorial warrants the right to pay
taxes with them, was not a contract that they should be so paid.
VALIDITY of act relating to payment of taxes in money. The act approved
November 19, 1867, which deprives the holders of territorial warrants, not
issued in their names, of the right of paying taxes with them, is constitu-
tional.

WHEN holder of territorial warrant has a vested right. The holder of a territorial
warrant, who presented it in payment of taxes before the passage of the
act approved November 19, 1867, acquired a vested right to pay taxes
with it.

TERRITORIAL contracts have no legal obligation. A citizen cannot sue the Territory and enforce its contracts. They have no legal obligation, but rest upon the good faith of the Territory.

Appeal from the District Court of the Third District,
Lewis and Clarke County.

LANGFORD applied to the district court of the third district on August 5, 1868, for a writ of mandate to require King, as county treasurer of Lewis and Clarke county, to accept a territorial warrant in payment of taxes due from Langford. The warrant was duly drawn and issued in favor of Green C. Smith, and presented for payment on July 17, 1867. Smith sold the warrant for a valuable consideration VOL. I-5.