3 force a judgment, but it lies against a public corporation, since there is no other remedy, either because an execution is not allowed by law, or it has been returned nulla bona. It must, however, appear that the proper officers have power to levy taxes; otherwise the writ will be refused.* Also, to prevent a failure of justice, a writ of mandamus will issue to compel the levy of a tax to pay a claim on which a suit cannot be brought; as when the relator has a claim only on a special fund, which is in the custody of the county court, in which case the writ will issue to audit and pay or provide for the payment of such claim." 5 § 131. In a mandamus on a judgment is the latter conclusive?- Upon an application for a mandamus to compel the levy of a tax to pay a judgment, it is too late to urge that the relator was not entitled to his judgment, that the municipality has no power to levy the tax demanded, or that the coupons sued on were invalid: such objections must be urged before a judgment is obtained. So defenses, which were urged in the suit in which the judgment was obtained, cannot be urged again in a mandamus proceeding to compel the payment of the judgment. When, however, Stacy, 44 Iowa, 340; State v. Gates, 22 Wis. 210; Coy v. Lyons (City Council), 17 Iowa, 1; Huntington v. Smith, 25 Ind. 486; Boynton v. Newton (Dist. Town), 34 Iowa, 510; Butz v. Muscatine (City), 8 Wall. 575; United States v. Buchanan Co., 5 Dill. 285; United States v. Sterling (City), 2 Biss. 408; United States v. Galena (City), 10 Biss. 263; Olney (City) v. Harvey, 50 Ill. 453; State v. Milwaukee (Com. Council), 20 Wis. 87; Galena (City) v. Amy, 5 Wall. 705; Norris v. Baltimore (City), 44 Md. 598. 1 Duncan v. Louisville (City), 8 Bush. 98; Olney (City) v. Harvey, 50 Ill. 453; Hughes v. Craven Co. (Com'rs), 107 N. C. 598. 2 Fisher v. Charleston (City), 17 W. Va. 595; Britton v. Platte City, 2 Dill. 1; Fisher v. Charleston (Mayor), 17 W. Va. 628. 3 State v. Milwaukee (City), 20 Wis. 87. 4 State v. Maysville, 12 S. C. 76. 5 Klein v. Smith Co. (Sup'rs), 54 Miss. 254. 6 Mansfield v. Fuller, 50 Mo. 338; State v. Bollinger Co. (Just.), 48 Mo. 475. 7 State v. Gates, 22 Wis. 210. 8 United States v. New Orleans, 98 U. S. 381; Ralls Co. Court v. United States, 105 U. S. 733. 9 City v. Sansum, 87 III. 182. a party asks for a mandamus to enforce the payment of his judgment against a municipality on coupons cut from its bonds, and is compelled to go behind his judgment in order to obtain the remedy pertaining to the bonds, the court cannot decline to take cognizance of the fact that the bonds are utterly void, and will be compelled to refuse the writ to make the officers levy a tax to pay coupons cut from those bonds, since the writ cannot confer any authority on the taxing officers in addition to what they had before.1 § 132. In a mandamus to levy a tax to pay a demand, public necessities must be first considered. In ordering the payment of, or the levy of, a tax to pay a claim, the courts will not allow public interests to suffer in order to protect a private interest: when they conflict, the latter will be compelled to yield. A mandamus will not be issued to compel a municipal corporation to pay a claim, when the funds on hand are required for its ordinary and necessary expenses, and the diversion thereof would tend to disorganize and disrupt such municipality; but the municipality may be ordered to pay over to the relator its surplus,3 or the surplus arising from year to year, and it may be enjoined from spending any money except for its ordinary current expenses. When a municipal corporation is called upon to levy a tax to pay a claim against it, and its power of taxation is limited as to the amount of tax it can levy, the proceeds of such taxation will be first applied to the payment of its ordinary and necessary expenses; and it is a sufficient reply to an application for such a mandamus, that all the money that can be so raised is absolutely required for such expenses. When a debt is payable out of 6 1 Brownsville v. Loague, 129 U.S. 493. 2 Williamsport (City) v. Com., 90 Pa. St. 498; State v. Macon Co. Court, 68 Mo. 29; Grant v. Davenport (City), 36 Iowa, 396. 5 4 Corpus Christi (City) v. Woessner, 58 Tex. 462. 5 Von Hoffman v. Quincy (City), 4 Wall. 535; Coffin v. Davenport (City Council), 26 Iowa, 515. 6 Clay Co. v. McAleer, 115 U. S. 3 State v. Shreveport (City), 29 La. 616; Coffin v. Davenport (City An. 658. Council), 26 Iowa, 515; Cromartie v. Bladen (Com'rs), 85 N. C. 211. the yearly income of a municipality, the court may require the return to show what the income is, and how it is expended, since the court will allow none of it to be employed for other than ordinary purposes so long as creditors have a claim thereto. If it appears that the property of the municipality is undervalued in the assessment, the court will order the tax to be levied. When a levy is ordered in order to pay a certain demand, it is not sufficient to make a general levy which includes the amount of such demand, but there must be a special levy to pay that particular demand, and the proceeds of the levy must be set apart to discharge the claim. When a municipality is not authorized to levy a tax sufficient to discharge a claim in full, the court will order it to pay a proportion thereof each year, and to levy a tax sufficient for that purpose, and will not require the relator to bring successive actions for a mandamus. When the proper officers knowingly levy a tax insufficient to discharge a claim, they may be compelled by mandamus to make a larger levy. If the levy has been made and the proper officer is proceeding in the collection. thereof with such dispatch as the law requires and permits, the relator cannot complain. Should the tax not produce a sufficient amount to pay the claim as ordered, the relator is not compelled to wait till the balance can be collected from delinquents, but may apply for another mandamus. § 133. Mandamus to collectors of revenue.- A mandamus is the more efficient and appropriate remedy to com 1 Beaulieu v. Pleasant Hill (City), 4 McCrary, 554. 2 Coffin v. Davenport (City Council), 26 Iowa, 515. 3 State v. Davenport (City), 12 Iowa, 335. 4 Coy v. Lyons (City Council), 17 Iowa, 1; Coffin v. Davenport (City Council), 26 Iowa, 515; United States v. Galena (City), 10 Biss. 263; State v. Weir (Neb., Sept. 22, 1891), 49 N. W. Rep. 785. 5 Robinson v. Butte Co. (Sup'rs), 43 Cal. 353. 6 State v. Davenport (City), 12 Iowa, 335. 7 Fisher v. Charleston (City), 17 W. Va. 595; Fisher v. Charleston (Mayor), 17 W. Va. 628. It has been held that the relator must first proceed against the tax collector to compel him to collect all of the tax already levied. Duperier v. Iberia Parish (Police Jury), 31 La. An. 709. pel collectors of public revenue to proceed to perform their duty. It lies to compel a tax collector to make to a purchaser at a tax sale a deed to the land sold; but if such deed is based on an irregular assessment and will convey no title, the writ will be refused. When, however, the act sought is not an official duty, its performance will not be enforced by a mandamus. When a county collector of taxes is allowed a percentage on the delinquent taxes collected, which does not go into the county treasury, and with which he is not charged, the county auditor cannot be required, at the relation of his predecessor, to draw a warrant on him for such percentage belonging to such predecessor, but collected by him. The proper remedy is for the predecessor to bring suit against him for the money so collected.1 6 § 134. Mandamus to obtain possession of public funds. An officer, who is entitled to the possession of public funds which are in the custody of another officer, may obtain them by the writ of mandamus." The writ has been issued: to compel a tax collector to pay money into the public treasury, when he failed to do so within the time allowed him by law; to compel a county treasurer to pay to the proper local officers the amount of liquor taxes to which they were entitled by law; to compel a town treasurer to pay township library funds to the treasurer of the board of school inspectors; to compel a county treasurer to pay to the township officers the money raised by taxation for its use; to compel a county treasurer to pay over money in his hands collected for and belonging to the treasurer of a 8 1 State v. Whitworth, 8 Lea, 594. 2 State v. Mantz, 62 Mo. 258; Kidder v. Morse, 26 Vt. 74. 3 Bosworth v. Webster, 64 Cal. 1. 4 Thomas v. Hamilton Co. (Auditor), 6 Ohio St. 113. 5 Hon v. State, 89 Ind. 249. 6 People v. Austin, 46 Cal. 520. Where another remedy was pro vided by law, the writ was refused. State v. Boullt, 26 La. An. 259. 7 East Saginaw v. Saginaw Co. Treas., 44 Mich. 273. 8 People v. Mahoney, 30 Mich. 100. 9 Cass Township v. Dillon, 16 Ohio St. 38; State v. Hoeflinger, 31 Wis. 257. district school board;1 to compel the collectors of the taxes of different wards to pay to the trustees of the public schools all the money raised by taxation for such purposes; 2 to compel the trustee of a township to pay over to the school trustees of a town, incorporated out of a part thereof, its proportion of the school funds raised by taxation; and to compel a tax collector to pay the taxes, collected to make payments on bonds issued in aid of a railroad, to the railroad commissioners of the town. Though the officer has already paid the funds to the wrong officer, yet a mandamus will run against him, although he has by his action exposed himself to loss or made his duty difficult or inconvenient.5 § 135. Mandamus to disbursing officers. A writ of mandamus will lie to compel a public disbursing officer to pay accounts out of the public funds in his hands, when such accounts have been allowed by the proper officers or tribunals, and no duty devolves upon him except the ministerial duty of making the payment. When, however, such disbursing officer refuses to pay such accounts believing them to be illegal, or that the auditing officers had no jurisdiction in the matter, the court on an application for a mandamus to compel payment will investigate the subject as to the legality or jurisdiction but not as to the amount of the allowance, and will refuse the application if the ground of objection is proven to be correct. When such disbursing officer has no funds on hand applicable to claims 1 State v. Burkhardt, 59 Mo. 75. 2 State v. Hammell, 31 N. J. L. 446. 3 Johnson v. Smith, 64 Ind. 275. People v. Brown, 55 N. Y. 180. 5 People v. Brown, 55 N. Y. 180. 6 Johnson v. Campbell, 39 Tex. 83; Thomas v. Smith, 1 Mont. 21; State v. Callaway Co. (Treas.), 43 Mo. 228; Day v. Callow, 39 Cal. 593; People v. Johnson, 100 Ill. 537; People v. Edmonds, 15 Barb. 529; People v. Edmonds, 19 Barb. 468; People v. Lawrence, 6 Hill, 244; Com. v. State v. Callaway Co. (Treas.), 43 Mo. 228; People v. Lawrence, 6 |