The opinion of the Court was delivered by
Willard, C. J.The relator seeks a mandamus to compel the defendants, as County Commissioners, to levy a tax under the provisions of the Act of June 7th, 1877, (16 Stat., 251,) for the payment of an amount alleged to be due him under a contract made by said Commissioners in pursuance of such Act, at a time and in a manner different from that prescribed by law for the levy and collection of State and County taxes. This cannot- be done, as the Act directs that the tax shall be “ collected at the same time and in the same manner as other State and County taxes are levied and collected.”
The supply Bill for the year 1878 fixed the amount to be raised by the respondents as County Commissioners; and as the amount claimed by the relator was not then due, no provision was made for levying a tax for its payment. The County Commissioners have no authority by law to levy a special tax at any other time than that fixed by law for the annual State and County taxes; and as they had no authority to comply with the relator’s demand in that respect, they have been guilty of no refusal to perform any duty imposed upon them by law, and, therefore, no ground exists for subjecting them to the writ of mandamus. Nor can the general question discussed as to the duty of the respondents to levy a tax independently of the provisions of.the annual supply Bill be considered. It is to be presumed that the Legislature, if it shall assume to limit the amount to be raised by the next levy, will have due regard to the demand of the relator. At all events, the relator has no right to demand action on the part of the County Commissioners until provision is made for the next annual levy by a supply Bill, and, therefore,, the County Commissioners cannot be placed as it regards such future levy in the position of having refused anything that the relator, has a right to demand. This remedy, then, that hinges upon a refusal on demand to perform some act of legal duty, cannot be obtained against them.
The rule to show cause must be discharged.
Mclver, A. J., and Haskell, A. J., concurred.