This is an application for mandamus to compel the treasurer of Shelby county to pay certain county warrants held by petitioners, which warrants are past due.
The rule announced in the above line of cases is here sought to be avoided, by making the application in the alternative; that is, if mandamus will not lie, that the application or petition be then considered a summary motion such as is provided for by the statute. It is alleged, however, that both the treasurer and his bondsmen are insolvent, and that therefore the summary motion would be not adequate, but abortive.
It is unnecessary now to decide whether the application for mandamus and the summary motion may be united, or whether the facts averred here are sufficient to warrant such joinder, if allowable, or whether the insolvency of the treasurer and of all his bondsmen would give the right to mandamus when such right would not otherwise exist, because the case can, and should, be disposed of on another ground, which goes, as this record shows, to the rights of the parties, whether the remedy be one or the other of the above mentioned.
The allegation as to the breaches of contracts made by the county as to the courthouse warrants, and as to the breaches of duty by the officers growing out of such contracts and obligations, is as follows:
“That said board of revenue as now constituted has ignored or repudiated said road debt and declines to levy any tax to pay for the courthouse debt, and has levied in the year 1915 all of said tax of one-fourth of 1 per centum (1/4 of 1%) to pay for the expenses usual and ordinary and incidental to the construction and upkeep of county bridges generally throughout the county and for future bridge debts anticipated at the time the levy was made, which levy is shown in Exhibit D hereto annexed and made a part of this petition. That on account of the orders of the board and the levy of said tax therein made and set out in Exhibit D said J. S. Bird, county treasurer, has refused and still refuses to pay the warrants of your petitioner, or any of the said courthouse warrants registered aforesaid and maturing February 1, 1916, but said treasurer has paid on said county road warrants contracted for by A. T. Newell & Bros, since 1911, and registered since 1911, and held by said assignee of said warrants, the sum of $7,050 on January 20, 1916. Your petitioners fear that all of said $12,000 will be paid out by said treasurer to other persons not entitled to the same unless the writ prayed for herein is granted. That in the opinion and according to the advice given your petitioners, said $7,000 was wrongfully paid out by said treasurer. That said Bird as said treasurer has failed to apply the money and proceeds derived from taxation (from the levy of said county tax of one-fourth of 1 per centum (% of 1%) during the year 1915, to petitioners’ warrants amounting to $1,565, due February 1, 1916, after demand made upon him after February 1, 1916, to apply said money and pay said proceeds over to your petitioners.”
The constitutional provision (subdivision “a” of section 215), without which no such levy could be made, expressly provides that the funds so collected “shall be applied exclusively to the purposes for which the same were so levied and collected.” Not to the purposes for which they ought to have been levied and collected, but exclusively to the purposes for which they were in fact levied and collected. To- redress the wrongful levy and collection, by requiring the county treasurer to pay out the funds for a different purpose from that for which the levy and collection were actually made, would be to defeat the declared purpose of the Constitution. The county treasurer certainly would not have the power or right to thus revise the actions of the board of revenue and of the tax collector, and surely no court will compel him by mandamus to do that which he has neither the power nor the right to do. It therefore clearly appears that no relief of any kind can be had against the county treasurer, under the facts as alleged in this petition as originally filed, or as subsequently filed, whether sought by mandamus or summary action.
Without at all committing ourselves to the rights of appellants against the county of Shelby, or against the county’s officers, in other and different proceedings, we are convinced that no proper or appropriate relief can be had in this proceeding, if the facts alleged in the petition are true, and we must of course so treat them on demurrer.
It follows that there was no error in the proceedings in the trial court of which these appellants can complain. The judgment is therefore affirmed, but affirmed without prejudice to other proceedings.
Affirmed.