The opinion
On Rehearing.
BRANSON, Y. C. J.
This was an action by the Western Bank & Office Supply Company, a corporation, against the board of county commissioners of McCurtain county (a suit against the county). An opinion was filed herein February 2, 1926. It is not deemed advisable or necessary to rewrite the entire opinion in this case. We approve it in part. Upon reviewing the record on petition for rehearing, however, we cannot approve that part of the opinion which authorizes the plaintiff to recover the property in the possession of McCurtain county. The said decision in the instant case denies the recovery of judgment for money prayed by the Western Bank & Office Supply Company, against said county, but directs a judgment, in accordance with the alternative prayer of the petition, for a delivery of the property.
A proper determination of the rights of the plaintiff to the recovery granted by the trial court involves section 26 of art. 10 of the Constitution of Oklahoma, as well as sections 8638 and 8639, C. O. S. 1921. Section 8638 provides, in effect, that no liability exists against a county or any municipality thereof on any contract made in excess of the estimate approved for the current fiscal year in which the contract is made. Section 8639 makes it a crime for any officer of the county or of any municipality thereof to contract such a debt. It is so fundamental that it needs no citation to establish it that all persons dealing with municipalities do so at their own peril. They are charged with knowledge of the limitations placed by law upon the authority of the officers of the same. Under the law of this state, any contract made as in the instant case, where the revenue has not already been provided for, paying the same during the fiscal year in which the contract is made, is absolutely void; that is, void to the extent that the courts will not entertain any alleged cause of action to render a judgment against the municipality, and the only remedy which the statute provides or permits is an action against the officers contracting such pretended indebtedness. This remedy against the officers is by the law written into every such contract, and is expressio unius est exclusio alterius, so far as r'e-sorting to any other remedy. The purpose of this provision of the statute is both penal and remedial. It is in the nature of a penalty against the officers for the purpose of deterring them from entering into such pretended agreements. It is in the nature of a remedy in that
it
permits the person furnishing such goods, wares, merchandise, or labor, to recover through the courts solely against the officers so
prostituting
their official authority.
As said, supra, section 8639 makes the attempt to enter into such contract a crime. Persons who have goods, wares, or merchandise or labor for sale to municipalities are charged with knowledge of how far the officers can go. If in their zeal to vend their wares, they pay no attention to the limitation of the officials with whom they deal, they do so at the risk of their ability to recover from the officers or of donating what they deliver to such muncipality, under such contracts, and remedy in the courts to recover in any wise, save and except against the officers who entered into such an agreement, is denied. It is clearly the purpose of the said constitutional provision and the said statutes that the courts will administer no remedy to any party to a contract made in violation of the debt limitation, who thereby becomes a party assisting in a violation of a criminal statute, save and except under that provision which authorizes the recovery against the officers entering into such an agreement. This clear intent of the Legislature precludes granting the alternative prayer in the instant case. The alternative prayer was, in effect, that if plaintiff could not be given judgment for the contract price oí the furniture and fixtures delivered to Mc-Curtain county, and to the board of county commissioners thereof, for furnishing the courthouse, the same be adjudged the property of the plaintiff and ordered returned to the plaintiff. The plaintiff was an encouraging party to this unlawful act. It is clearly the intent of the statute that no remedy can be given under such circumstances, save and except that specifically provided. The purpose of the said constitutional provision and of said statutes is to prohibit just what we find exists in the instant case. How can it prohibit it, if the person (the seller) who in his zeal to vend his wares illegally makes himself a party to such contract, and delivers the goods, wares, and merchandise, and in event he fails to recover a money judgment, holds, it over the heads of the officers who have to use the articles furnished that the same will be recovered through court proceeding? The law requires that if these things be furnished, that they be furnished and paid for in the way the law has provided. It would force
*250
the officers to violate the "pay as you go" polLy prescribed by the law of Oklahoma for the government of the municipal subdivisions of the state. If persons who seek to supply such officers are not willing to accept in good faith the repeated decisions of this court that they are bound to take no~ice as to whether or not ~unds have been provided to pay for such articles, we are not justified in evading the law and lending the courts to assist them in evading the same; hat, on the contrary, they voluntarily deliver the articles for the payment for which no provision is made by a tax levy in advance of auüh delivery. The courts cannot prevent their making such donations, if they do not see fit to resort to the personal obligation of the officers which the statute writes into such contracts.
We have searched the reported (aces in vain to find where any such supply house o~r other person making such contract with municipal officers has ever sued the officers personally. We fail to find in the reported cases wh('re any county attorney has prose-cut&l such officers for viola~.ing section 8639. But, whether enforced or not, the provisions o~ the law are so clear that no person dealing with municipal officers need be misled thereby fo his prejudice. There can only he one reason why such supply house as the plaintiff in the instant case furnishes its goods when there is no tax levy to pay for the same already made and approved by the excise board, and that is, in its zeal to make the sale, it is willing to take the chance on the courts stultifying themselves, and granting it a judgment against the municipality.
The plaintiff had as much knowledge of the law as did the county commissioners. The repeated decisions of this court had held such contracts void. There is no decision of this court on the law since statehood that even intimates that. the property can be returned, and the statute on its face provides that their remedy is a suit against the officers en~oring into suc).i an agreement. If it had brought such a suit a'nd recovered judgment, we would not in the least be reluctant to affirm the same, but it has mied tile nfunicipality, and nob resorted to the remedy which thern law gives it, and prayed for a return of the property, which could have no other effect except an indirect evasion by forcing a tax levy in a subsequent year to pay ior this property, purchased in a previous year. To sanction this would be t~ strike down the plain intent and purpose of the provisions of the Oonstitution and the shatutes abo•ve quoted.
The judgment of the trial court is reversed. in so far as it granted judgment to the plaintiff for return of the property, with direction 1.0 dismiss plaintiff's petition.
NICHOLSON, C. J., and HARRISON, LESTER, HUNT, and RILEY, JJ., concur.