Foote ex rel. Green v. Brown

delivered the opinion of the court.

These cases were submitted together. They are writs of mandamus brought against the treasurer and sheriff of Hinds County respectively, to enforce payment in the one case, and to compel the reception of taxes due in the other, of school warrants of said county, issued in the year 1880. Counsel on both sides treat these warrants as standing on the same footing as general county warrants, which this court has so far assimilated to judgments against the county, as to authorize the bringing of mandamus to compel their payment. We are inclined to think that they stand upon a different footing, having never been adjudicated by the Board of Supervisors, and should rather be made the basis of ordinary suits ; but as we are advised that the object of the proceeding is to settle a question of public interest, and as no objection is made to the form of action, we will examine the questions involved upon the assumption that mandamus will lie.

The defence set up by the county, through her officials, is, that there is no money in the treasury belonging to the school fund, except such as has been specifically raised for carrying-on the free schools for the current year, and that no taxes have been levied or are being collected except for that purpose, and that the funds thus collected, being collected for a specific pur*160pose, cannot be diverted to the payment of outstanding warrants issued in past years. Whether this affords any defence to the actions is the question presented, and its solution depends upon an examination of the machinery provided by our laws for carrying on and defraying the expenses of the public schools of the State.

The Constitution, sect. 5, Art. VIII, requires the free schools to be kept open at least four months in each year, and devotes the funds arising from various specified sources to the execution of this requirement.

The statutes (Code 1880, sect. 713) enlarge the time to five months, direct (Acts 1882, p.- 77, amending Code, sect. 724) that if the sum arising from the constitutional sources shall in any year be less than three hundred thousand dollars it shall be raised to that sum out of the State treasury, provided that this fund shall annually be distributed among the several counties according to the number of children, within the school age, contained in each (Code, sect. 725), and then by sect. 730 makes it the duty of the Board of Supervisors of each county to levy a tax of not exceeding three mills (by the Act of 1882, p. 77, absolutely three mills), upon the taxable property of the county “to make up any deficiency in the aggregate amount of common school funds, arising from other sources, necessary to maintain the public free schools of said county during the time required by law.”

By sect. 727 of the Code the county treasurer is required to note on every warrant the month for which the service evidenced by it was rendered, and he is prohibited from paying the warrants of a later month until those of all precedent months have been paid. Manifestly, the scheme is annual in its character, and contemplates the raising each year of money sufficient for defraying the school expenses of that year, and no more. But all schemes of taxation are annual in their character, and ordinarily contemplate nothing more than the raising of sufficient revenue to defray the expenses of government for the current or ensuing year; and if nothing more than this can be said of the sj'stem under examination, mani*161festly it affords no answer to plaintiff’s demand. A closer examination, however, discloses the fact that more than this-must be said of our school laws. Not only do they provide alone for raising money sufficient for the expenses of the year, but there is an entire absence of any authority in any department of the government, save the Legislature, to raise more than this, at least beyond the limit of three mills upon the taxable property of the county. Conceding that the relator’s warrants in this case are judgments against the county, a concession which must be made to maintain these actions, he .already has all that we can give him, except where he can show that there is an excess over the requirements of the year in the treasury. The limitation upon the power of taxation is something more than a limitation upon the amount which the board may raise. It is a limitation also, upon the purpose for which it may be raised. The tax can be levied and collected solely for the purpose of conducting the schools during the year, though it is doubtless true, that if the levy imposed resulted in the collection of a greater sum, the excess could be reached by the holder of warrants of other years. However meritorious may be the demands of such holders, and however anxious the board may be to provide for their payment, it is powerless to do so. Deriving its power of taxation from the Legislature, it cannot exceed the limit given, either as to amount or purpose. It is plain, therefore, that the county cannot be compelled by mandamus to pay a debt when it has on hand no fund out of which it can be paid, and when there is no authority in any of its functionaries to impose or collect a tax for the purpose. If this view of the law needs to be fortified, it is greatly strengthened by legislative recognitions of the fact that there is no law in existence for the payment of this class of warrants, which are to be found jn several statutes providing special funds for their satisfaction. Acts 1875, p. 60 ; Acts 1877, p. 109.

Affirmed.