The opinion of the Court was delivered by
Mr. Justice Bonham.The petitioner procured to be issued by this Court a rule which required the respondents to show cause before it why they, who are the treasurer, the auditor, and the supervisor of Oconee County, should not be compelled by a writ of mandamus to levy a tay upon the taxable, property of the county sufficient to pay the amount of a judgment, viz.: $2,000.00, with interest and costs, which had been recovered by the petitioner against the county. ■
The judgment was obtained in an action brought by petitioner as administratrix of Allen Green, who was taken from the custody of the sheriff of Oconee County and lynched.
Actions of that nature are authorized by the provisions of Article 6, § 6, of the Constitution, and Section 5601, Vol. 3, Code 1922, known as the lynching statute. By their terms, a county is made liable in exemplary damages in a sum of not less than $2,000.00 when one is taken from the custody of the sheriff and lynched.
The respondents for return to the rule showed: That they had no money on hand except such as was specifically appropriated for other purposes and hence it could not be applied to the payment of this judgment, and that they were *163without authority of law to levy a tax for such purpose, or any purpose.
The question thus presented for the consideration of the Court is this: May the ministerial officers of Oconee County be required by the mandate of this Court to levy a tax?
The general rule on this subject is thus stated in Corpus Juris: “In accordance with elementary principles mandamus will not lie to compel a municipal board or officer to do anything which he is without authority or power to perform. It is also essential to have the writ issued that the respondent officer or board shall be under a plain legal duty to perform the act. The writ will not issue where the duty is doubtful.” 38 C. J., 691.
The United States Supreme Court in Commissioners of Taxing District v. Loague, 129 U. S., 493, 9 S. Ct., 327, 330, 32 L. Ed., 780, said this: “Mandamus lies to compel a party to do that which it is his duty to do without it. It confers no new authority, and the party to be coerced must have the power to perform the act.”
In People v. Board of Com'rs, 176 Ill., 576, 52 N. E., 334, 336, this is held: “It is¡ well settled that to entitle the petitioner to the writ of mandamus the petitioner must show not only a clear right to1 the acts sought to be enforced, but the defendants must have the right by law to do such acts.”
The matter, it would seem, is definitely set at rest in this State by our Supreme Court in the case of State ex rel. Peoples Bank v. Goodwin, 81 S. C., 419, 62 S. E., 1100, 1102, in which the opinion was written by that pre-eminent jurist, Associate Justice Charles A. Woods. There it was sought to compel by mandamus the county officers of Green-ville County to levy a tax to pay certain claims against the county which had been approved; failing that, that the Board of County Commissioners be required to include, in the estimate which it was required to submit to' the Comptroller General of the amount necessary to meet county expenses and obligations, a sum sufficient to pay such claims. The *164Court held that the officers could not be compelled to levy a tax, but that the board could be compelled by mandamus to include in the estimate the amount necessary to pay such claims. And the writ was ordered to issue for such purpose.
Passing upon these questions, the Court said:
“By Section 5, Art. 10 of the Constitution, the General Assembly was authorized to vest in the municipal authorities of a county the power to lay taxes for corporate purposes, but the General Assembly has not seen fit to confer the power on the County Board of Commissioners, except a limited power to lay a special tax of one mill for roads. 23 St., 1012. Therefore this Court cannot issue a mandamus to require that board to do an act not within its official duty or power. In Supervisor [of Carroll County] v. U. S., 18 Wall., 71, 77, 21 L. Ed., 771, the Court says: ‘It is very plain that a mandamus will not be awarded to compel county officers of a State to do any act which they are not authorized to do by the laws of the State from which they derive their powers. Such officers are the creatures of the statute law, brought into existence for public purposes, and having no authority beyond that conferred on them by the author of their being. And it may be observed that the office of a writ of mandamus is not to create new duties, but to compel the discharge of those already existing. A relator must always have a clear right to the performance of a duty resting on the defendant before the writ can be invoked.’ * * *
“For the Courts to undertake to create the machinery of taxation would be to usurp a legislative function. This Court therefore has no power to issue a mandamus to require the levy of a special tax to pay the petitioner’s claims.”
The method of providing for the levy of taxes to meet the expenses of a county are prescribed by Section 1105 of Vol. 3, Code 1922, in this wise: “The County Board of Commissioners shall prepare an estimate of the amount of money necessary to pay the expenses incurred by said boards and for ordinary county expenses, and report the same to the *165Comptroller General of the State, on or before the 5th day of January of each year, to be by him submitted to the General Assembly, in order to provide the necessary taxation for county purposes.”
If the county officers could levy taxes, this proceeding would be unnecessary.
In some of the counties, supervisors have been substituted for boards of Commissioners, and these duties devolved upon them.
It is clear that this Court has no power to compel the officers of Oconee County to levy and collect a tax to pay petitioner’s judgment against the county.
It may, however, compel the supervisor to include, in his estimate of the amount necessary to meet the expenses-of the county, a sum sufficient to pay this judgment. In the State ex rel. People’s Bank v. Goodwin, supra, the Court said: “The petitioner is therefore entitled to a writ of mandamus requiring the County Board of Commissioners of Greenville County to include in its estimate to be submitted to the General Assembly these claims and items as adjudicated debts for expenses incurred by the County Board of Commissioners, and it is adjudged that the writ do accordingly issue.”
Probably the attorneys for petitioner in the present case were following what they considered to be the precedent set in the case of Smoak v. Berkeley County, 156 S. C., 369, 153 S. E., 288. It would seem that that case was uncontested, and the issues herein decided were not brought to-the attention of the Court in that case. It is not to be taken as authority.
It is accordingly adjudicated that a writ of mandamus do-issue requiring- the Supervisor of Oconee County to include in the next estimate to be made by him of the amount of money necessary to meet the expenses of the county, which estimate is to be by him submitted to the Comptroller General and by him to the General Assembly, a sum sufficient to-*166pay the judgment of $2,000.00 secured by petitioner against the County of Oconee, together with interest thereon from the date of the judgment, and costs. It is so ordered.
Mr. Chief Justice Befase and Messrs. Justices Cothran, StabeER and Carter concur.