Maddox v. Anchor Duck Mills

Gilbert, J.

It seems to be the established general rule that where a debt against a county has been reduced to judgment and the judgment creditor has no other means of enforcing payment, mandamus is the appropriate remedy to compel the proper officers to levy a tax for that purpose, provided, of course, that the county has the power to levy a tax for the payment of such judgment. 18 B. C. L. 281. On the contrary it seems to be the rule that a simple contract debt can not be made the basis of an application for mandamus to compel the levy of a tax by the county for its payment while it retains its form as a simple debt. Ibid. Debts such as those incurred by a plebiscite of the people do not fall within this rule. In the present case county warrants were issued in different years and upon the public-road funds. They were not paid during the years in which they were drawn and dated. Though the petition alleges that they were liquidated demands, the facts set out therein show the contrary. If the county has a defense, it is not too late for that defense to be set up. Indeed, on an application for mandamus based upon a judgment, the county may go behind the judgment to ascertain whether its liability be such as to authorize a tax levy for its discharge. Meyer v. Jordan, 123 Ga. 669; Brunson v. Caskie, 127 Ga. 501. In a case based upon a similar state of facts this court held that where county warrants were drawn on a special fund and that fund was exhausted, thus leaving the county without funds with which to make payment, the warrants make “a mere open, unliquidated account, an account not accepted as correct, not agreed to be paid except out of the particular fund, and not so far settled and fixed as to make mandamus the remedy to levy another tax to pay it.” Cabaniss v. Hill, 74 Ga. 845, 849. In that case it was also said: “It is the highest sort of prerogative to raise money by taxation. ” While in the Gabaniss case the county set up fraud and in this case fraud is not alleged, the principle stated above is nevertheless controlling. It should be noted that in City of Dawson v. Dawson Waterworks Co., 106 Ga. 696, at page 724, the Gabaniss case was overruled in so far as it conflicted with the Dawson case. The former case was not other*706wise affected by the latter decision. The principle here ruled was not involved in the Dawson case. None of the cases cited in the majority opinion involve the same state of facts, and none of them purport to formally review and overrule the Gabaniss case.

Presiding Justice Beck concurs in this dissent.