
    NOVEMBER TERM, 1844.
    W. G. Ross v. Tidence Lane.
    An application for a writ of mandamus is addressed to the sound legal discretion of the Court, and will not be awarded to enforce the performance of an act which is contrary to law.
    By law, the tax collector is required to pay all monies by him collected into the state and county treasuries; an order of the board of police, therefore to a tax collector, to pay taxes collected to a particular person not the county treasurer, is without authority of law.
    A mandamus, therefore, issued by the Circuit Court, requiring a tax collector to comply with such an order of the Police Court would be illegal.
    The judgment of the board of police, like that of any other competent tribunal, is final, until reversed.
    Judgments obtained by fraud may be set aside upon proper proceedings for that purpose.
    Where a mandamus was issued by the Circuit Court to a tax collector, to collect a certain tax, and he appealed, and pending the appeal his term of office expired; held, that this Court would not upon theirappeal award a mandamus against his successor.
    Where a special law was passed, authorizing the levy, by the board of police of a county, of a special tax to pay for public buildings, and the law was to continue in operation only three years, no court, after the expiration of the three years, could justify the levy of the special tax, or authorize the tax collector to proceéd to collect it upon an assessment made more than three years prior to the period of the authority given.
    In error from the Rankin Circuit Court.
    Tidence Lane, the defendant in error, filed his petition, praying the Circuit Court of Rankin county, then sitting, on the 9th June, 1842, to make an order upon William G. Ross, the plaintiff in error, to show cause on the succeeding Tuesday, why a peremptory mandamus should not issue against him, as tax collector of the county, to compel him to collect the sum of $‘6600, as a special tax on the inhabitants of Rankin county, and pay over the same to him, said Lane, upon the 'grounds as set forth in the petition ; that the said Lane had made a contract with the Police Court of said county to build them a jail, and that he had built said jail, for which the county was indebted to him.
    
      That said board of police, sitting as a court, did, at their July session, 1841, order the amount of $6572.38, to be allowed to him, that being the amount ascertained to be due by a former order to have the wood-work and iron-work for said building valued by one Edwin Hudson, as agreed upon by the Court in the settlement for said building ; that it was further order by said board, then sitting as a' court, “ That there be a special tax assessed, amounting to $6600, for the year 1841, and collected and paid to said Lane, as part payment for said jail;” that the said Lane had been informed and believed that the special tax of $6600 was duly assessed ; that the said Ross was the tax collector of said county, had failed to collect said tax, although by law he should have done so ; that by reason of such failure and refusal of Ross, the said Lane was deprived of said sum of money as a creditor of the county, and that he, being without other specific adequate remedy, prays for a writ of mandamus, commanding Ross forthwith to collect his said tax.
    This petition was sworn to by Lane. The Court made a rule on the plaintiff in error, to show cause on the next Tuesday.
    And accordingly, on Tuesday, the 13th of June, 1842, the said plaintiff in error showed the following causes against the issuing of a peremptory mandamus. After acknowledging that he was the proper tax collector of Rankin county,'he proceeds to resist the application, and states that he believes it to be true that the board of police for .said county did make anbrder on the 2d December, 1840, to receive from said petitioner a bouse made of brick, called the Jail-house ; that as an evidence thereof, they made the following order, to wit: “Ordered, that the jail built by Tidence Lane be received, at the sum of $11,165 for the brick-work.”
    That he believed it to be true, that the said board, at their July term, 1841, did make an order that the amount of $6672.38, be allowed to Tidence Lane, the undertaker of the jail, it being the amount allowed him by a previous order, and to have the woodwork and iron-work for said building valued by Hudson. But the answer proceeded to state that said board of police was grossly defrauded by Lane in the delivery and receipt of said house. In this, that the said bouse was made of bad and faulty brick, a great number of which were little better than dry clay ; and the other materials out of which the said house was constructed were equally faulty and worthless, and the whole mass made in an unworkmanlike manner. All which facts were well known to the said Lane at that time, but he artfully and fraudulently concealed the same from said board of police ; and the better to cheat'and defraud them in the premises, the said Lane, well knowing the said board of police to be no judges of such work or materials, made the exteror of said walls to look tolerably well, when the main body of them were made of the worst materials, and put together in such an unworkmanlike manner as to render the said house wholly unfit for the purpose of a county jail, the said Lane at the same time knowing it to be so ; that to prevent scrutiny by the board, or persons they might call to their aid, and the better to impose upon and defraud the said board, Lane averred, “ that the said materials, out of which the house was constructed, were of the best kind, and the work performed in the best manner ; when he then and there well knew that the whole mass was wholly defective in materials and construction. Therefore the act of receiving the said building, and every order then and subsequently made by the said board of police in relation to that matter, was void, or at least voidable, in consequence of the fraud practised upon them by said Lane that said board, supposing the said house to be such as represented to them by defendant, and “ that it was an admirable jail-house when the same should be completed and finished as contemplated by their contract with said defendant, within the time contemplated by the said contract; were willing, 'on their part, to do all within their power, as a board of police, to provide the means of paying defendant for the same, not thds knowing that the said house was wholly unfit for a county jail, the object for which the said board of police received it. And plaintiff avers that the house is wholly unfit for a county jail, and remains until now in an unfinished stated. But the said board being deceived, and acting under the deception practised upon them, did, on the 10th July, 1841, as he believes, make the following order : “ It is ordered by the Court, that there be a special tax assess to $6600, for the year 1841, and collected and paid to Tidence Lane, as a part payment for the jail of Rankin county.”
    The answer proceeds further to set up :
    “ That the last mentioned order is unconstitutional and void, the Police Court not being clothed by the constitution and laws with any such mighty power as assumed by them in the making of the said order. 1st. The levying and laying taxes upon the free people of this State is an act of sovereign legislative authority, and cannot be conferred by the legislature upon any man or set of men. It is a power wholly incommunicable except' by the express authority of the organic law of the State. 2d. Every statute or act of the legislature which might purport to clothe the board of county police with such tremendous power, would be unconstitutional and void.”
    “ That there is in legal contemplation no such order in existence (if such an one did legally exist), as the board of police sitting as a court, on the 9th day of February, 1842, did make an order, rescinding in substance the one made the 10th day of July, 1841, in the words following, to wit: { Ordered, that William G. Ross, tax collector of Rankin county, be, and he is hereby directed by this Court not to collect the sum of six thousand six hundred dollars, being a part of the levy to be collected by him this year, which sum was intended to be applied to the payment of a certain house, called a jail, situated in the town of Brandon, in the said county. It is further ordered by the Court, that the said William G. Ross, collector as aforesaid, change his books, and amounts due from each individual, so as to cover the amount due and ought to be collected on account of all other sums of money levied by this Court, and intended to be collected, except "the sum of $6600 aforesaid. This Court being of opinion that no part of the contract in relation to the building and completion of said jail has been complied with by the undertaker.’ ”
    That the said sum of $6600 had not been assessed according to the Constitution and laws of the State ; that the said defendant has now pending in the Circuit Court of Rankin county, an action of debt against him and his securities upon his official bond for the supposed neglect of duty complained of in his petition, and had also instituted an action in the same Court upon the case, and now pending against the members of the said board of police.
    This answer is verified by affidavit.
    The Circuit Court took the cause under advisement, and on the first day of September, 1842, in vacation, the Judge returned to the clerk’s office the following order : — ■
    “To the clerk of the Circuit Court of Rankin county.— Let the motion made for a rule upon the tax collector of Rankin county, to show cause, &c., be granted, and let a mandamus issue according to the petition therefor of Tidence Lane. John H. Rollins, Judge 7th Judicial District of Miss.”
    A peremptory mandamus accordingly issued on the 21st day of September, 1842, was received by the sheriff of Rankin county on the 21st September, 1842, was executed, and a writ of error with supersedeas to the High Court of Errors and Appeals, applied for and granted.
    The following errors are assigned :
    1st. That the judgment of the Court below, was in favor of the defendants in error, when it ought to have been for the plaintiffs in error.
    2d. That the Police Court had no power to make such an order as the one made by it on the 10th day of July, 1841 ; there is manifest error.
    3d. That the receipt of the jail-house and all the orders for the payment for the same, were procured by the defendant Lane, through fraud and misrepresentation, and therefore void.
    4th. That the mandamus issued in vacation, not giving, the plaintiff in error an opportunity to except to the opinion of the Court in granting the mandamus and to file his bill of exceptions.
    
      Mitchell 8f Son, for plaintiff in error.
    1st. The Constitution of the State of Mississippi never intended to confer the power on the legislature to delegate the responsible and delicate sovereign duty of laying and assessing taxes on the free people of this State, on the Police Court.
    The section of the Constitution relied upon is the 20th section of the 4th article, which is in the words following, viz., “ The qualified electors of each county shall elect five persons for the term of two years, who shall constitute a board of police for each county, a majority of whom may transact business ; which body shall have full jurisdiction over roads, highways, ferries, and bridges, and all other matters of county police, and order all county elections,” &c. How. & Hutch. 26, sec. 20.
    
    It surely cannot be contended successfully before this honorable Court, that the legislature could transfer her most guarded sovereign power of raising revenue, to the Police Court of Rankin county, or that levying and apportioning taxes is anything but raising revenue.
    The Constitution views such a duty as so intimately connected with, and so directly affecting the dearest interest of the people, that none but their immediate representatives, elected for short periods, should be authorized to introduce bills in the legislature (not the Police Court) to “ raise revenue.” Hear the Constitution ; it says, that “ All bills for raising revenue shall originate in the House of Representatives, but the Senate may amend or reject them, as other bills.” Art. 3, sec. 24.
    
    The raising of revenue implies more than declaring what persons and property shall be liable to pay money for the public use, in the form of duties, taxes, or licenses. It also implies the quantum or amount demanded. One is necessarily dependent upon the other, and both are acts of sovereignty.
    The board, or Court of Police, is an executive body for some purposes, as in laying out, establishing, and regulating roads, highways, ferries, bridges, &c., the erecting court-houses, prisons, and stocks, and the repairing the same, &c.; and the judicial body in appointing juries to lay out roads, in granting writs ad quod dam-num, &c., and,in giving judgment thereon ; but never can become a legislative body but by assuming powers which belong to the State legislature, and which are inconsistent with its character, and the safety and liberty of its citizens. There cannot be such a thing as executive or judicial legislation in a government like ours.
    The Constitution of our State has been particularly careful and guarded upon this head. The 1st section of the 2d Article, H. & H. 19, reads thus: “The powers of the government of the State of Mississippi shall be divided into three distinct departments, and each of them confided to a separate body of magistracy, to wit, those which are legislative to one, those which are judicial to another, and those which are executive to another.”
    Sec. 2. “No person, or collection of persons, being of one of these departments, shall exercise any power properly belonging to either of the others, except in the instances hereinafter expressly directed or permitted.” ,
    The argument that the statute clothes the Police Court with no more than a necessary and legitimate power in allowing them to levy taxes ad libitum, for building court-houses, jails, &c., is unsound, and will not bear the test of investigation.
    1st. It is placing too mighty a power in the hands of three persons, the majority of five policemen, to lay out extravagant plans of court-houses, jails, &.c., and to tax the people at their pleasure to carry into execution their mighty designs.
    2d. It is at war with the Constitution, the genius and nature of our political institutions.
    Were the legislative power of laying and collecting taxes for those purposes attempted to be given to the Judges of the Circuit Courts, would not the. commonest minds revolt at it, as grossly unconstitutional, and against the spirit of our government ? Most assuredly they would.
    What is there in the Constitution, I.would inquire, which clothes the legislature with power to confer this dangerous and mighty power on .the Police Court, more than the Circuit or any other Court, for all are equally answerable periodically to the people, being periodically elected by them.
    The taxing power, I contend, belongs to the sovereign people in their representative legislative capacity, and is wholly incommunicable to any body of men whatever, much less three policemen, who act mostly executively — sometimes judicially — but never legislatively. Montesq. Spirit of Laws, p. 52.
    Let us apply a few of the principles apprové’d by all good lawyers and great statesmen in this or any other government pretending to be free, as laid down by the Baron De Montesquieu in 1st Vol. of Spirit of Laws, 161.
    
      Says he, “ Were the executive to determine the raising of public money otherwise than by giving its assent, liberty would be at an end ; because it would become legislative in the most important point of legislation.”
    And, says the same inimitable great man, “ The political liberty of the subject is a tranquillity of mind arising from the opinion each person has of his safety. In order to have this liberty, it is requisite the government be so constituted as one man needs not be afraid of another.” Ib. p. 52.
    “ When the legislative and executive powers are united in the same person, or in the same body of magistracy, there is an end to liberty.” Ib. London ed.. 1772, 1 vol. Spir. Laws, 222.
    “ Where these exist, the government is an absolute tyranny, regardless of its name. In Turkey, the legislative, judicial, and executive are all united in and exercised by the Sultan, and there the people groan. And the same may be said of the former republics of Italy, where all these powers were united in the same body of magistracy.” Ib. p. 223.
    The language of this eminent man, may be well applied to the police magistrates who have the transcendent powers of planning or contriving court-houses or jails, upon the most grand and extravagant scale, and then of raising the money by taxes to carry their schemes into, practice, communicated to them by statute, and not by the Constitution. “ The whole power is here united in one body, and although there is no external pomp that indicates a des-poticy sway, yet the people feel the effects of it every moment.”
    Will this Court pursue the course of the Circuit Court in this case, and assume the prerogative of the legislative department of this government; yea more, of the delegates of the people convened in solemn convention, and insert a clause iti our fundamental law which is not to be found there, and which it is obvious to my mind was never intended to be there, by either expression or implication ?
    But I contend that it is not even necessary to the proper and useful exereise of the police duties, that the board should have the taxing power. Their duties ought to be well defined by legislative enactments, so that they might not transcend their bounds; and amongst other things, they might be clothed with the power of drafting plans or procuring it to be done, and making estimates of the expenses of building and repairing court-houses, jails, bridges, causeways, &c., and to ask the legislature for a suitable tax to defray the expenses of the object, if the legislature should approve of the intended work and the plan of its accomplishment. Under a plan of this nature, both the board of police and the legislature would be acting within their legitimate spheres, and in accordance with the spirit and design of our constitution, and the genius of our representative republican'system. But to transfer the power of raising revenue, and levying and apportioning taxes, from the legislature to any other body men, is at open war with the nature and design of our general and state governments.' For the raising of revenue and levying of taxes, is one of the most high and delicate sovereign legislative duties known to our form of government. And it belongs to the legislature alone ; for there is no authority conferred on the legislature to create or appoint another, or sub-attorney, to perform this important business for her. The laying and apportioning taxes belongs exclusively to the legislature, and cannot be transferred to any other body of men. This subject has undergone but few judicial determinations, and whether it has arisen from the fact that but few of the legislatures of the other States have stepped aside from their duty and responsibility, and attempted to confer such authority upon some less responsible body, or from the general supineness and inattention of the citizens to either slight or gross infractions of their constitutions, so it is, the subject has been but seldom mooted in the courts of justice. But in the State of Tennessee, where their constitution is not so express as to the division of powers, legislative, judicial and executive, as with us, this subject came before their Supreme Court, and was solemnly decided in the case of Marr v. Enloe, 1 Yerg. Rep. 452. And although Chief Justice Catron lays much stress in that case upon the fact that the Justices of the County Court were irresponsible to the people, because they were not elected by the people, yet it is obvious that the decision does not turn upon that point ; but 1st, on the want of constitutional authority in the County Court; and 2d, that all taxes must be levied by the legislature; and 3d, that the power cannot be transferred or communicated to any other man or set of men.
    
      I feel certain that I might close this argument at this point, upon the question of the power and authority in'the board to assess and levy a special tax of $6600 on the people of Rankin county, and to order the tax collector to apportion the same at his will, and collect and pay the same to the defendant in error. But before I will dismiss this part of the subject, I must call the attention of the Court more particularly to the supposed statute of the 15th February, 1838, which is in the extraordinary words following :
    Sec. 1. “That hereafter it shall be lawful for their boards of county police, of the several counties in this State, respectively, to levy and collect a special tax for their counties, respectively, sufficient to build or repair any court-house or jail, or other buildings, for their counties respectively, whether such special tax shall exceed fifty per centum on the State tax in any one year or not. Provided, that the special tax shall not be applied to any other purpose whatever, than for the purpose of building or repairing the county buildings for the county in which such special tax may be levied and collected.”
    This is the authority under which it is contended the county police may bankrupt and ruin the citizens of Rankin county. If this unaccountable act is not unconstitutional and void, it is impossible for us to suppose one that would be so.
    In the ordinary transactions of life, confided to the care and management of an agent, he, the agent, cannot confer the authority of the performance upon another, -unless enabled to do so by the power conferring his agency upon him. Jlgens agcntum non habet. And shall the legislature assume to itself the power of delegating the authority of “raising revenue,” (which is alone confided by the people to the legislature) upon the boards of county police, or any other body of men ?
    , The taxing power is one of sound discretion, as well as an act of sovereignty, in the people of all free governments upon earth. And by the spirit and genius of our government this power is only conferred on the legislature,.unless otherwise plainly expressed by the fundamental law of the State. Discretion, or the power of acting at discretion, is a despotic power, and where such power is granted, the grant thereof must always meet with most strict and rigid construction. And this position is supported by the rules of construing all laws. Where there are no latent or potent ambiguities, the words of all instruments of writing shall have their natural and obvious meaning, whether in laws, constitutions, or contracts between individuals. And the members of a convention, who are granting and limiting the powers of various departments of the government, are always supposed to have meant what they said, and to have said all they did mean upon the same subject. And upon no principle of reading can these words of the 20th section of the 4th article of the constitution, “ and all other matters of county police,” be tortured into an authority to levy and collect taxes of and from the people. But the levying and collecting taxes is no part of the county police. To levy taxes, or in other words, “ raise revenue,” must commence in the “ House of Representatives.” So careful have the people been in guarding their rights in the matter of taxes, that the Senate^ composed of learned and experienced men of property and standing, and who would be presumed to have something to lose by improvident legislation in relation to taxes, but who were amenable to the people every four years only at the ballot box, should not be permitted to present an original scheme of taxing the people. And with this precaution before our eyes, it is impossible to believe the constitution ever intended, or the members that framed it ever dreamed of conferring any such power, as taxing the people, on the boards of police in this State.
    I might elaborate and extend this argument, on the constitutional question of power in the police Courts to tax the people at will, much further, but I think it wholly unnecessary.
    But, for the plaintiff in error, I further insist, that should there be a mistake as to the voidness of the power of the board of police to levy such a tax, as is contended for by the other side, yet defendant ought not to succeed, because he induced the board of police to receive the said jail, by fraudulently deceiving the said board, through the suppression of the truth and the suggestion of a falsehood. No one can believe for a moment, that the board of police for Rankin county, would have received the house intended for a jail-house, if they had known what a Worthless affair it was. The fourth reason given by the plaintiff in error, in showing cause against the issuing of a peremptory mandarrias in this case, shows the said board was most grossly cheated and defrauded by the defendant, in the receipt of said house, and contends that all the orders made by them subsequently, in promise to'provide means of payment for said jail, were void, being procured through the deceit and fraud of the said defendants.
    Fraud contaminates and vitiates everything with which it is incorporated. And as the response or showing of the plaintiff in error must be taken as perfectly true, defendant not having traversed or denied any of the facts relied upon by the plaintiff in error, there cannot remain a doubt as to the fraud practised upon the said board, and that said orders, being obtained by fraud, are merely void, and such as said plaintiff in error might take advantage of.
    Whenever a mechanic (as such) undertakes to furnish the materials and build a house, he enters into an implied contract, that the materials shall be suitable for the design, and the work shall be performed in a workmanlike manner. Defendant Lane has not only failed to do his duty as a fair and honest undertaker, in furnishing the proper materials, and faithfully and mechanically putting those materials together, but was guilty of artful contrivance, and positive and absolute falsehood.
    Here-1 shall contend, that as the jail was received, and the orders made by the police court to pay for the same, or part pay for the same, were procured by the false and fraudulent contrivance of the defendant Lane, the receipt of the house, and the orders to tax the people of Rankin to pay for the same, were void, and the whole, in legal contemplation,-stands as though such acts had never been done. And therefore the special tax of $6600 was never “ duly assessed,” as contended for by the counsel of defendant Lane ; for it is alleged by the plaintiff in error, that when the order was made to tax the. people of Rankin to the amount of $6600, in part payment of said house, the said board of police did not know that they had been deceived by the defendant Lane ; but that they were deceived and defrauded, and acting under the deceit practised upon them, they made this order : “It is ordered by the Court, that there be a special tax assess to $6600, for the year 1841, and collected and paid to Tidence Lane, as a part payment for the jail of Rankin county.”
    
      But it is insisted further by me, that the order here quoted does not “ duly assess” a special tax of $6600 on the people of Rankin, for the year 1841, but says it shall be done. “ A special tax shall be assessed,” not is hereby assessed, but “shall be assessed.” By whom ? not themselves, but by some third person. Here the police court, who pretend to act under a delegated power, delegate the power of assessing and apportioning a tax of $6600 upon the people of Rankin county, to the táx collector, at his will and pleasure, for he is confined in nothing but the sum and year. This objection lays not to the form, but to the substance of the order. The act is not done and performed, but is only said it shall be done. It is not put in the perfect tense, but in the future. This sentence is plain and unambiguous, if words mean anything. But we are not left to construction, if it were possible to give the sentence any othpr construction. For the said board have told us what they meant in this order, by one subsequently made in the words following, to wit: “ Ordered, that William G. Ross, tax collector of Rankin county, be, and he is hereby directed by this Court not to collect the sum of $6600, part of the levy to be collected by him this year, which sum was intended to be applied to the part payment of a certain house called a jail, situated in the town of Brandon, in said county. It is further ordered by the Court, that the said William C. Ross, collector as aforesaid, change his books and amounts due from each individual, so as to cover the amounts due and ought to be collected on account of all other sums,” &c. Now, from this order, it is obvious the police court intended Wm. G. Ross to make and alter the amounts to be collected at his own will and pleasure, and that he was the third person who was to assess the sum of $6600 on the people.
    But take the order, that is called an assessment, to be so, for argument sake, and then I say that if the police court had the power and right to make such an order, they certainly had the power and right to alter, amend, or abrogate it; the latter of which they have done. Therefore there was no special tax for that purpose assessed by any one for the year 1842.
    If I am correct in my construction of this last order, the declaration of the defendant Lane, in his said petition, “ that the said special tax bad been duly assessed,” is not true in fact. Aside from the want of authority in the police court to levy such a tax, and that the whole had not been procured by Lane through fraud, it is certain that the last order is a virtual repeal of the former order.
    But were it possible that I could be mistaken in all the positions I have taken, still there is another ground upon .which this proceeding must be reversed. It is this. The Circuit Judge took this case under advisement, and rendered his opinion in writing to the clerk of the Circuit Court of Rankin pounty, in vacation.
    
      H. L. French, on the same side.
    1st. The police court had no right to receive the jail, unless the commissioners of public buildings had first reported to them, that the same had been examined by them, and that the same was done and completed in a workmanlike manner, and agreeably to the contract. See H. & H. Code, p. 466 ; Session acts of 1839, p. 325, sec. 4.
    2d. That if the court of police discovered that fraud had been committed in the reception of the jail, that they had the power to order the suspension of the collection of the money before that time levied, and to order the tax collector not to pay over as before directed, they having the sole power and control of the moneys to be paid out, and to whom, and for what purpose.
    3d. That unlimited power is not given to the police court to tax the people for any purpose whatever. See the case of Marr v. Enloe, 1 Yerg. Rep. 452.
    That if the defendant in error was dissatisfied, aggrieved by the order, judgment, or decision of the board of police of Rankin county, he had a right to an appeal, or writ of error, to this Court. See How. & Hutch. Code, p. 453, sec. 41.
    The brief of Judge Mitchell is so full and extended, as to supersede the necessity of anything further than some.brief remarks from me. I beg, however, to submit the following remarks :■—
    First. 1. A mandamus will not lie, if the relator has a remedy by action. 2 Cow. 444 ; 10 J. R. 484.
    2 A party injured has his remedy by action against the tax collector, by suit upon his bond. How. &.Hutch, p.. 101.
    
      3. Therefore a mandamus will not lie against a tax collector.
    Second. 1. Admitting that the board of police of Rankin county acted in their judicial capacity in receiving the jail, and granting-the order set forth by the relator, yet the order is void, if it was obtained through fraud. See Grant v. Attala County, decided by this Court.
    
      2. The return of the mandamus in this case, shows that said order was obtained through fraud.
    3. Therefore that order was void, and properly vacated.
    Third. A mandamus will not be granted against any but officers. The office of tax collector is now vacated by law. It is submitted, that this Court cannot resuscitate the dead, and give power by mandamus to Ross, now to collect taxes, if they had been properly assessed.
    I extract from Jugde Mitchell’s brief the following points, to comment on before the Court.
    First. 1. The order of the Police Court relied on by the relator is void on its face.
    
      2. Because of its generality.
    3. Because the money was to be paid to Lane, when the law positively required that it should be paid to commissioners. See special law for building court-house and jail in Rankin county. Acts of 1839.
    Second. If not void upon its face, for generality and illegality, it was void by the subsequent order of the board of police, vacating the first order as having been obtained by fraud of the relator.
    Third. If the decision of the Court was erroneous in vacating the order, the relator had his remedy by appeal.
    
      JWayes & Clifton, for defendant in error.
    The circumstances of this case are peculiar to itself, and but little light is reflected on it by adjudged cases. Certain elementary principles and analogies of the law may aid in leading to a correct determination.
    The petition for the mandamus stands as a declaration, for it is setting forth the petitioner’s cause of complaint.
    The defendant’s answer is as a plea, for it contains his justification or éxcuse. The motion for a peremptory mandamus, notwithstanding the answer, is a demurrer, for the party thereby rests or abides the facts appearing.
    The same principles and rulés that govern in regular pleadings, so far as they subserve the purposes of justice and may be safely followed in cases of mandamus, may be properly invoked to our aid. It is the nature of the thing, and not the name, which challenges attention and respect.
    Taking the motion for a peremptory mandamus as being in effect a demurrer, I admit the rule to be that it admits the truth of the facts stated in the antecedent pleading or answer, to the extent that a demurrer in the regular course of pleading admits the truth of the facts alleged.
    But the demurrer only admits the truth of such facts as are well pleaded.
    No fact can be well pleaded that it is not competent for the party setting it up to plead.
    It is not competent for the tax collector, when ordered to collect a special tax, to set up as a reason for not collecting it, that the Court was induced to make the order by fraud.
    As well might a sheriff refuse to proceed on a fi.fa. on the ground that the judgment was obtained by fraud.
    Where it appears from the record that a party has pleaded a false plea, the proper course is to demur.
    It here appears that the allegation of fraud is false. The sum to be collected was for the wood and iron work of the jail. A different allowance was made for the brick-work ; the alleged fraud is in the brick-work.
    Again, the fraud is said to consist in Lane’s having induced the Court to make the allowances by his false representations ; but the record makes it appear, that the Court appointed its own agent (a mechanic), to inspect and value the work, and upon the report of the agent of their own selection, made the allowance according to his valuation.
    In general, if the truth of the return is controverted, the course is to bring an action for a false return, and if found to be false, the party recovers his damages, and also has his peremptory mandamus.
    
    
      The object of the suit, so far as the right to the peremptory mandamus is involved, is only to ascertain whether the return be true or false. If the return appears from the record to be false, a suit to ascertain that fact would be idle. It is only because of the uncertainty that exists, that a suit is to be resorted to. Where the reason ceases to apply, the law also ceases. The maxim is cessante ratione, cessat et ipsa lex. The police court having at one time ordered the tax to be collected, could not at a subsequent time rescind that order.
    Whether the Court can constitutionally levy a tax to build a jail, is a question I will not consume the time of the Court by discussing.
    That the law authorizing the appointment of a tax collector is repealed, and the duty devolved on the sheriff, cannot affect our right. The mandamus will go to the officer who is to collect the tax,, whether he is called tax collector or sheriff. The tax collector, like the King of England, never dies.
    ■ To the objection that a gross sum was ordered to be collected, and that it was not apportioned by the Court, — I reply that the law makes the apportionment. The collector having the assessor’s list before him, had only to resort to arithmetic to ascertain the sum to be collected from each tax-payer, and indeed it appears from the order of the Court directing him to change his books, that he had so ascertained the sums. It is impossible that the Probate Courts could discharge this duty. At any rate the law has not imposed it on them. It has given the rule, and the assessor and collector are to apply it.
   Mr. Justice. Clayton

delivered the opinion of the Court.

The defendant in error was the builder of the court-house and jail in the county of Rankin, under contract made with commissioners appointed by the board of police. At the July term, 1841, of said board of police, a special tax was ordered to be assessed in said county, to the amount of $6572, and collected and paid over to G. Lane. The tax was assessed, but the collector, W. G. Ross, the plaintiff in error, refused to collect it. Lane applied to the Circuit Court of Rankin county for a mandamus to compel him to do so. Ross, in his return to the writ, admits the contract for the building of the court-house and jail, and admits the order of the board of July, 1841. But he states that the order was procured by fraud and imposition on the part of Lane, and that the board of police, after discovery thereof, rescinded the said order at its February term, 1842, and directed him, as said tax,collector, to abstain from the collection of the tax thereby imposed. He states that he is yielding obedience to the last order, and insists upon the right of the board to make the change. He also insists that the order directing him to collect the special tax, and pay it over to Lane, was unlawful, and involved a breach of his official bond, which required him to pay all taxes by him collected into the State and county treasuries respectively. The Circuit Court awarded the mandamus ; from which decision an appeal was taken to this Court.

The application for this writ is addressed to the sound legal discretion of the Court, and it will not be awarded to enforce the performance of an act which is contrary to law. 1 Cowen, 502; Waldron v. Lee, 5 Pick. 329.

The order of the board of police, made at its July term, 1841, requiring the tax collector to pay the money therein named to Lane, was without authority of law, and has produced all the confusion and difficulty in the cause. The general law on the subject of public buildings for county purposes, requires the board of police to appoint two respectable citizens of the county commissioners of public buildings, whose duty it shall be to superintend their erection, to give bond for the faithful performance of the trust, and for the proper disposition of all money which may come to their hands. H. & H. 466. The law also required the clerk of the board of police, to issue his warrant on the county treasurer for any allowance made by said board, and the treasurer is directed to pay it out of any money not otherwise appropriated. Ib. 450, sec. 27. By the private, act, authorizing the board of police of Rankin county to levy a special tax for the erection of a court-house and jail, the tax collector is required to pay over the same to the commissioners or their ol'der, to take their receipt for the payment,'and to file the same in the office of the county treasurer. Act? of 1839, page 355. By the revenue law of 1841,-approved the 6th of February of that year, the collector is required to collect and pay over the State and county tax by the 1st day of March in each and every year; and' on his failure to do so, suit may be brought and judgment recovered against him and his sureties ; and the county treasurer is required to certify to the district attorney the amount of taxes due by the defaulting collector. Acts of 1841, p. 64. If the law had been pursued in the first order of the board of police, the remedy would have been plain and clear throughout. If the collector failed to pay the money into the county treasury, or in this instance to file the receipt of the commissioners, which, by the act of 1839, above quoted, is substituted in this matter for the money, then it was the duty of the county treasurer to have instituted suit against him and his sureties, and when the money was recovered, to have paid to the order of the board of police, or of the commissioners. But the order requiring the collector to pay to Lane was not authorized by any law, and was an appropriation not within his official bond. His failure to comply with it, or his refusal to give it obedience, would not give this Court a right to issue a mandamus requiring him to do an act without the sanction of law. To do so would make an order of the board of police, although contrary to law, of more effect than the law itself. Until that order is reversed or set aside, it may for some purposes be conclusive between the parties, though upon that we do not now pass, but it cannot control the legal discretion of this Court in granting or withholding a peremptory mandamus. That discretion must be guided by the laws of the land.

We lay no stress upon the order made at the February term, 1842, rescinding the first order. The judgment of a board of police, like that of any other competent tribunal, is final until reversed. Yalabusha County v. Thomas Carbry, decided at this term of the Court. But that does not relate to judgments obtained by fraud ; they may be set aside upon proper proceedings for the purpose.

Another obstacle to granting this application, is, that the collector of taxes has no right to collect any but such as are contained in the assessor’s list, which is made out and delivered to him annually. The authority of Ross to collect has long since expired. The sheriff of Rankin county, who is now virtute officii the tax collector, would in 1844 have no right to collect any taxes not in the assessor’s list of that year, nor could he go back to the list of 1841. Were we therefore now to award the mandamus, and order it to operate on the sheriff, as the successor of the tax collector, a c.ourse of very doubtful propriety, it would be nugatory. See State v. Jones, 1 Iredell, 416; 4 Ser. & Rawle, 448.

Before the application was made in the Court below (June 1842), the time for collecting the taxes of 1841 had expired. To make the order at all effectual, it must have directed a'new assessment, and to this end there must have been new parties. To complete the difficulties, the act of the legislature'which authorizes the laying of a special tax in that county, for paying for the public buildings, was passed in 1839, and was by its terms to continue in operation only three years.. No order of any Court could justify the laying of a special tax by the board of police at this day for the purpose of paying for the buildings, because the special law has expired by its own limitation ; or authorize the tax collector to proceed to collect upon an assessment made more than three years ago.

Several other questions were made in.the argument, which we shall not notice, because not necessarily involved in the decision.

The judgment of the Court below will be reversed, and the rule discharged. 
      
       This case will be found reported in this volume, ante, page 529.
     