Thomson, J.
ON REHEARING.
This is a proceeding in mandamus to compel the board of county commissioners of Grand county to levy a tax for the payment of a judgment. The suit was instituted on the 21st [217]*217day of September, 1898, and resulted in a judgment for the relator. From that judgment error was prosecuted to this court, where a reversal was adjudged. Grand County v. Savings Bank, 8 Colo. App. 43.
The specific ground on which the judgment was reversed was that there was no proof that the commissioners had refused to levy the tax. There was evidence of a meeting between Mr. Rohan, the chairman of the board, and the representatives of the relator, in the city of Denver, at which Mr. Rohan, purporting to represent the board, refused to agree to the levy of a tax. No authority of Rohan to act for the board was shown, and we held that a refusal by him was not evidence of a refusal by the county. The date of the conversation between Rohan and the relator’s representatives. did not appear. At the subsequent trial the relator undertook to supply the insufficiency of proof in which the weakness of his case, as first made, consisted. The testimony concerning the conversation between Rohan and the parties speaking for the relator, was the same as before ; but it was supplemented by an order of the board from which, it is asserted, Rohan derived his authority. That order reads as follows : “ On motion it was ordered that Mr. John Rohan, chairman, be empowered to go to Denver to meet the creditors of the county, and that he is hereby authorized to make such arrangements as he can for the benefit of the county.” In further support of his case, the relator introduced another order of the board of which the following is a copy: “ On motion the board decided not to take any action in regard to the judgment of New Hampshire Savings Bank and the King judgment, and refuses to make any levy on same at this meeting.” The first of these orders was made on the 3d day of October, 1893, and the second, on the 16th of October, 1893. The relator also proved by a witness, Thomas H. Reynolds, that he, as agent of the owner of the judgment, was present at a regular meeting of the board on October 3, 1893, and made a demand on the commissioners that they levy a tax to pay it, but they declined to take any official action while he was [218]*218there. The foregoing was all the evidence there was on the question of refusal to levy a tax. The relator had judgment a second time.
The petition for mandamus was verified on the 20th, and filed on the 21st, day of September, 1898, and the alternative writ was ordered on the latter day. The petition alleged that demand had been made on the board for the levy of a tax, and that the board had refused to order a levy, the refusal of which the relator complained was not the refusal which he proved. Unless, before the petition was verified and filed, the board had denied compliance with the demand, no sufficient ground for the proceeding existed, and the relator was not entitled to the writ. Everything that he showed relative to a refusal occurred a considerable time after the action was commenced and the case comes to us again as destitute of necessary proof as it was at first.
The judgment might be reversed at this point, but another question, which more vitally affects the controversy, is now pressed upon us for decision. In our former investigation of the case, the importance of the question was not recognized; while it was made the subject of some remark in the opinion, it was not determined, the decision turning upon another and totally different question; and in the opinion which gave rise to this motion for a rehearing, it was entirely overlooked. As the case is to be retried, and as the question is one which is of controlling importance in all cases presenting the same distinctive features with this, I conceive it to be the duty of this court to express an opinion upon it, and, interposing a few observations by way of preface, I shall put it into form, and proceed to its consideration.
Under our practice, when notice of an application for a writ of mandamus is given in the prescribed manner, no alternative writ issues, but when the application is made without notice, there must be an alternative writ, and when there is an alternative writ, it is the first pleading, and the answer is made to it. Civil Code, secs. 310, 311. In this case there seems to have been an alternative writ, but it does not appear [219]*219in the record; it has been ignored by both parties ; the answer is to the petition; and the proceeding has been conducted throughout as if the petition were the first pleading, and no alternative writ had been issued. The question which is raised concerns the petition only, and I shall follow the course which the parties have pursued, and regard the application as having been made upon notice, the alternative writ as unnecessary, and the petition as a complaint. The answer, after putting in issue the allegation of refusal by the board to levy the tax, and setting up some matters of not much importance, concluded as follows: “ Defendants, admitting all the allegations of the complaint not hereinbefore denied, aver that there are not sufficient facts stated in said complaint to constitute a cause of action against the defendants, or to authorize the issue of the peremptory writ of mandamus therein demanded.” Before the hearing, the respondents asked leave to withdraw their answer, and file a demurrer to the petition. The proposed demurrer was tendered, and one of its grounds was that the petition did not state facts sufficient to constitute a cause of action. The motion was denied. Joining allegations tendering issues of fact with a demurrer to the petition, was, perhaps, not proper practice, but by their motion, the respondents sought to make the sufficiency of the petition the sole issue, and the question to which the argument is mostly directed, goes to the allegations of that pleading. The respondents were unsuccessful in their attempt to attack the petition by demurrer, but the sufficiency of the facts which it presents may be inquired into at any time, and the question is properly before us.
The petition, after alleging the rendition of the judgment, and its nonpayment, set forth a demand in writing upon the board for the levy of a tax. ' This demand recited that the judgment was upon warrants and orders of the county; and it required the board to levy a tax upon the taxable property of the county to pay the judgment, principal and interest. The refusal which was averred, was a refusal to levy a tax to pay the judgment, or any part of it. The demand was in[220]*220corporated into the petition, and its statements and recitals are statements and recitals of the petition. It appears, therefore, upon the face of the petition that the judgment was recovered upon warrants or orders of the county; and that the purpose for which the levy was demanded was the payment of that judgment. The question presented is whether the holder of a county warrant, by reducing it to judgment, effects any change in the nature of the debt, or acquires the right to demand its payment at a time or in a manner other than that provided by law when the debt was contracted. This is the question which is to be determined, and upon the determination of which the resolution of the other question, whether the relator came into court with a cause of action, depends.
By the law in force when these warrants were issued, it was provided that there should be levied and assessed upon taxable real and personal property within the state, in each year, for ordinary county revenue, including the support of the poor, not more than ten mills on the dollar; for the support of schools, not less than two, nor more than five mills on the dollar; and for road purposes, not more than five mills on the dollar. Section 2816, Gen. Stat. This section was amended by an act approved April 6, 1891, so as to read that there should be levied and assessed for ordinary county revenue, such rate as would be sufficient to defray the ordinary expenses ; for the support of the poor, not more than three mills on the dollar; for road purposes, not more than seven mills on the dollar; and for the purpose of paying outstanding warrants and other floating indebtedness, not more than three mills on the dollar. Session Laws, 1891, p. 112. See also same book, p. 290. Further provision was made in relation to outstanding warrants, by an act approved April 8, 1893, as follows: “It shall be the duty of the board of county commissioners of any county in this state which has, or shall have, any unliquidated and unpaid county warrants or orders, drawn on any fund, for the payment of which there are no funds in the county treasury of such county, and to pay [221]*221which the incoming taxes already levied are insufficient, at the same time other county taxes are annually levied for the current year, in addition to the other taxes provided by law, to levy a sufficient tax, not exceeding five mills on the dollar of assessed property, as shown by the assessment roll of such county for the current year, for the purpose of creating a ‘ Special Fund ’ for the liquidation, payment and redemption of all such unliquidated and unpaid warrants or orders. A like levy shall be so made at such time, annually, until all of such unliquidated and unpaid warrants or orders shall be fully liquidated, paid and redeemed, principal and interest, as provided in this act.” Session Laws, 1898, pp. 100, 101. By other legislative provisions, county orders and warrants, properly made and issued, were entitled to a preference as to payment, according to the order in which they should be presented to the county treasurer. Upon presentation of two or more orders at the same time, precedence should be given to the warrant of the oldest date; when two or more orders should be presented at the same time, and there should be no money in the treasury, to the credit of the proper fund to pay them, they should be registered in the order of their date, precedence to be given to the warrant of the oldest date. It was also made the duty of the treasurer to have and keep in his office a book to be .called the register of county orders, wherein should be entered and set down, at the date of the presentation thereof, every county order, or other certificate or evidence of county indebtedness, the date and number of the order, the date of the presentation, the name of the payee, and the name of the person presenting it; and the failure of any county treasurer to have and keep such registry of county orders, or make the required entries therein, or the payment by him of aity order, there not being sufficient money in the treasury to pay all the orders drawn upon the same fund and previously presented, was made a high misdemeanor. Mills’ Ann. Stat. secs. 900, 906, 909. The law relative to the payment of judgments, of which the relator seeks here to avail himself, reads as follows : “ When a judg[222]*222ment shall be given and rendered against a county of this state in the name of its board of county commissioners, or against any county officer, in an action prosecuted by or against him in his official capacity, or name of office, when the judgment is for money, and is a lawful county charge, no execution shall issue thereon, but the same may be paid by the levy of a tax upon the taxable property of said county, and when the tax shall be collected by the county treasurer, it shall be paid over, as fast as collected by him, to the judgment creditor, or his or her assigns, upon the execution and delivery of proper vouchers therefor; but nothing contained in this section shall operate to prevent the county commissioners from paying all or any part of any such jucfgment by a warrant, drawn by them upon the ordinary county fund in the county treasury; Provided, That the power hereby conferred to pay such judgment by a special levy of such tax, shall be held to be in addition to the taxing power given and granted to such board to levy taxes for other county purposes, but the board of county commissioners shall levy under this law only such taxes as they, in their discretion, may deem expedient or necessary, and all taxes levied by authority of this act shall not exceed one and one half per centum on the dollar of assessed property for any one fiscal year.” Session Laws, 1887, p. 240.
The provisions respecting the payment of county warrants are very clear and precise. The warrants are payable in the order of their presentation to the county treasurer, and not otherwise. The law enters into and becomes part of the contract between the county and the holders of its warrants. Each registered warrant matures as soon as sufficient money has accumulated in the treasury to the credit of the proper fund for its payment, after paying all other warrants of the same class whose registry was prior in time. The holder of a warrant has the right to its payment at its maturity; and without his consent he cannot be deprived of that right by the holders of other warrants, or by the county. The payment [223]*223of warrants out of their proper order is positively forbidden, and is not only forbidden, but is made a misdemeanor.
The proposition submitted to us by the relator amounts to this : That by the simple expedient of reducing his claim to judgment, the holder of a county warrant avoids the statutory provisions concerning its payment, and secures an advantage to himself which the statute prohibits.
The question before us is not new. In different forms it has been frequently before the courts, and I am unable to find any substantial disagreement among the decisions. The consensus of judicial opinion is that the merger of a debt into a judgment changes its form, but not its identity; and that when the judgment is presented to a court for affirmative action, and is sought to be collected by a process not contained within itself, the court will look behind the judgment in order to ascertain from the nature of the original claim what method may be adopted for its enforcement. Inasmuch as this statement is disputed, I think a careful review of the principal authorities will not be misapplied labor.
In Boynton v. Ball, 121 U. S. 457, the question was whether a judgment recovered against a bankrupt after the time of commencement of the bankruptcy proceedings, upon a debt which existed prior to that time, was released by the discharge in bankruptcy of the 'judgment defendant. In the discussion of that question the court said: “ Two propositions are advanced by counsel for defendant in error in support of the judgment of the supreme court of Illinois, as reasons why the certificate obtained so long after the judgment in the state court, should not have the effect of a discharge of the debt evidenced by that judgment. The first of these is, that the original debt on which the action was brought in the circuit court of Stephenson county.no longer exists, but that it was merged in the judgment of that court against Boynton, and was therefore not released under the act of congress, which declares that all debts provable against the estate of the bankrupt at the time bankruptcy proceedings were initiated,'shall be satisfied by the order of the court discharging the bankrupt. [224]*224The argument is, that the judgment now existing against Boynton is not the debt that existed at the time bankruptcy proceedings were initiated; that by the change of the character of the debt from an ordinary claim or obligation to a judgment of a court of record, it ceased to be the same debt, and became a new and different debt as of the date of the judgment. * * * But this court, to which this precise question is now presented for the first time, is clearly of the opinion that the debt on which this judgment was rendered is the same debt that it was before; that, notwithstanding the change in its form from that of a simple contract debt, or unliquidated claim, or whatever its character may have been, by merger into a judgment of a court of record, it still remains the same debt on which the action was brought in the state court, and the existence of which was provable in bankruptcy.” In Wisconsin v. Pelican Ins. Co., 127 U. S. 265, the position of the plaintiff in error was precisely the same as that assumed by the relator here. I quote from the argument of counsel for the state: “ This court sits upon and tries the question of pecuniary indebtedness, and can neither inquire into nor know what was the cause of action in the original suit. That question is absolutely excluded from the investigation of this court. * * * The rendition of a judgment by a competent jurisdiction merges and extinguishes the original cause of action, and makes the judgment to be a new debt, with the new characteristics of contract obligation, against which no defense is allowed that did not arise subsequently to the judgment.” To this contention the court made the following answer: “ The essential nature and real foundation of a cause of action are not changed by recovering judgment upon it; and the technical rules, which regard the original claim as merged in the judgment, and the judgment as implying a promise by the defendant to pay it, do not preclude a court, to which a judgment is presented for affirmative action (while it cannot go behind the judgment for the purpose of examining into the validity of the claim), from ascertaining whether the claim is really one of such a nature that the court is authorized to [225]*225enforce itciting, among other cases, Boynton v. Ball, supra. In Brownsville v. Loague, 129 U. S. 493, a judgment of the circuit court of the United States for the western district of Tennessee, awarding a peremptory mandamus against the hoard of commissioners of the taxing district of the city of Brownsville, Tennessee, commanding the board to proceed to levy, collect and pay over to the petitioner, Loague, a tax sufficient to pay each and all of certain judgments described in the petition for mandamus, was reversed on the ground that it appeared from the statements in the relator’s petition that the bonds upon which the judgments were recovered were void, and the respondents were, therefore, without power to levy a tax to pay them. The following language of the court is pertinent to the present discussion : “ The power invoked is not the power to tax to pay judgments, but the power to tax to pay bonds, considered as distinct and independent; and therefore, when the relator is obliged to go behind his judgments as money judgments merely, to obtain the remedy pertaining to tire bonds, the court cannot decline to take cognizance of the fact that the bonds are utterly void ánd that no such remedy exists.”
I do not understand that the foregoing decision involves any disagreement with other utterances of the same court to the effect that a judgment is conclusive of the validity of the cause of action. The character of the indebtedness upon which the suit was brought appeared, as is the case here, in the petition for mandamus; from the facts concerning it which that pleading set forth, it appeared that the original claim was void, and the court holding itself not precluded by the judgment from an examination of the cause of action which resulted in the judgment for the purpose of ascertaining what the remedy should be, simply decided, upon such examination, that no tax could be legally levied for the payment of the claim, because it was void.
In United States v. Macon, 99 U. S. 582, it was sought to compel the authorities of the county of Macon, Missouri, to levy a tax for the payment of a judgment recovered by the [226]*226relator against the county upon interest coupons detached from bonds issued by it under an act of the general assembly of the state incorporating the Mississippi and Missouri Railroad Company. For the purpose of paying those bonds, that act provided for the levy of a tax not exceeding one twentieth of one per centum upon the assessed value of the taxable property for each year. The purpose of the proceeding was to compel the levy of an additional tax, the proceeds of which should be applied upon the judgment. The court held that no greater tax could be levied for the payment of the judgment than that provided for the payment of the bonds, concluding as follows : “We have not been referred to any statute which gives a judgment creditor any right to a levy of taxes which he did not have before judgment. The judgment lias the effect of a judicial determination of the validity of his demand, and of the amount that is due, but it gives him no new rights in respect to the means of payment.” In argument, counsel make some point on the word “ new ” which we are compelled to admit we do not quite understand. But the meaning of the clause in which it occurs is obvious. It means simply that for the payment of the judgment, the judgment creditor was confined to the means provided for the payment of the original debt, and that in respect thereto his judgment gave him no additional rights. In that case the means provided for the payment of the bonds was the tax of one twentieth of one per centum, and it was held that the payment of the judgment upon the bonds, if made at all, must come from the proceeds of the same tax.
I quote the following from the opinion in Ralls County Court v. United States, 105 U. S. 733, a case in which mandamus was asked to compel the levy of a tax for the payment of a judgment recovered upon interest coupons attached to bonds issued by the county: “ The present suit is in the nature of an execution, and its object is to enforce the payment, in some way provided by law, of the judgment which has been recovered. The only defenses which can be considered are those which may be presented in the proper course of judicial pro[227]*227cedure against the collection of valid coupons executed under the authority of law, and reduced to judgment. While the coupons are merged in the judgment, they carry with them into the judgment, all the remedies which, in law, form part of their contract obligations, and these remedies may still be enforced in all appropriate ways, notwithstanding the change in the form of the debt.” Section 710 of the Iowa Revision of 1860, provided for the levy of a tax for the ordinary county revenue, including the support of the poor, of not more than four mills on the dollar. Section 3274 of the same act exempted from execution public buildings owned by a county, and section 3275 provided that when a judgment should be recovered against a county, in case no property not exempt from execution should be found on which to levy, or in case the judgment creditor should elect not to issue execution, he should be entitled to the amount of his judgment and costs in the ordinary evidences of indebtedness of the county, but that if the county should issue no scrip or evidence of the debt, a tax must be levied as early as practicable, sufficient to pay off the judgment, with interest and costs. Judgments were recovered against the county upon certain of its warrants issued for ordinary county expenses, and the board of supervisors of the county, in addition to a tax for ordinary county revenue of four mills on the dollar for each of the years 1870 and 1871, levied a special tax, pursuant to the provisions of section 3275, of ten mills on the dollar, to be applied upon those judgments. The question arose whether that section could be resorted to for the purpose of compelling payment of judgments upon county warrants issued for ordinary county indebtedness, and was decided by the supreme court of Iowa, in Land Co. v. County of Sac, 39 Iowa, 124, Chief Justice Miller speaking for the majority ^of the court. The argument for the affirmative was that since section 710 conferred no authority to levy a tax to pay off judgments against the county; the power to do so must be found in section 3275. But the court held otherwise, assigning as its reasons that the only authority to levy taxes for the ordinary county revenue was [228]*228conferred by section 710; that one of the purposes of the ordinary county revenue was the payment of the debts of the county; and that it was immaterial whether those debts were in the form of warrants, or judgments obtained on warrants.
A dissenting opinion -was delivered by Judge Cole, in which he argued that the board was, by section 3275, authorized to levy a tax to pay off the judgments, even although taxes for other purposes had been levied to the extent of the maximum of its authority. But in the case of Polk v. Winett, 37 Iowa, 34, a case decided after Land Co. v. Sac County, although reported in an earlier volume, the same judge, delivering the opinion of the court, abandoned his former position, and held that the board of supervisors had no authority to levy a tax to pay a judgment rendered upon warrants for ordinary and bridge revenue, where it had, in the same year, levied the maximum rate allowed for those purposes.
Stryker v. Grand County, 77 Fed. Rep. 567, was a proceeding by mandamus to compel the levy of a special tax for the payment of a judgment rendered against the county upon warrants issued by it. The respondent answered, among other things, that taxes had been levied in every year at the highest rate authorized by law. A demurrer to the answer was overruled, and the ruling sustained by the majority of the appellate court. In the opinion, which was delivered by Judge Thayer, it was said that the legislature did not intend that the holder of county warrants should have the right to reduce them to judgment, and to demand the levy of a special tax to pay the judgment when recovered, without reference to the question whether there were other warrants entitled to priority of payment, and without reference to the question whether such levy would increase the annual tax for ordinary county expenses beyond the highest amount allowed by law. From this opinion Judge Sanborn dissented. He disagreed with his associates upon several of the questions discussed, but he concluded as follows: “ By the provisions of Laws, Colo. 1891, pp. Ill, 112, it was made the duty of the board [229]*229of county commissioners to levy a tax of three mills on the dollar each year ‘ for the purpose of paying outstanding warrants and other floating indebtedness.’ This tax has not been levied, and I am of the opinion that under this statute, the plaintiff in error is entitled to a writ of mandamus, to compel the levy of such a tax to create a fund to be applied to the payment of such warrants, in the order prescribed by the statutes, and on that ground the demurrer should be sustained.” Upon that statement of the law, I am in hearty accord with its learned author.
I conclude my review of authorities by an examination of the case of Rio Grande County v. Burpee, decided by our own supreme court (24 Colo. 57). A peremptory mandamus had been awarded commanding the commissioners of the county to levy a tax to pay a judgment. The validity of the original cause of action was attacked, and the question was presented whether in the mandamus proceeding the court could go back of the judgment for the purpose of inquiring into the validity of the original indebtedness. The court held that it could not, and that it could not go behind the judgment for any purpose, except to determine what means were provided for the payment of the original claim. After citing a number of cases, and among them Ralls County Court v. United States, supra, the court speaking by Mr. Justice Goddard said: “ Summed up, the doctrine of the foregoing and kindred cases is that the judgment conclusively determines the validity of the claim against the county, but gives no new rights in respect to the means of payment. Hence the court will go behind the judgment to determine only what means were provided for the payment of the original claim, in order to apply the same to the payment of the judgment.”
It is strenuously insisted that the foregoing language is not applicable to a case like the one under consideration. The argument is not destitute of ingenuity, and, if the court had expressed itself less clearly, or if there had been any obscurity in its statement of the case, might be entitled to attention. [230]*230But I do not see how a mistake of the court’s meaning is possible. The question it was considering was, for what purpose it could not, and for what purpose it could, go behind the judgment; and it simply decided that it could not, for the purpose of investigating the validity of the cause of action, but that it could and would, for the purpose of finding what means were provided for the payment of the original claim, so as to apply those means to the payment of the judgment. And, in so deciding, it placed itself in line, certainly with the weight of authority, and so far as my research has extended, with unanimous authority. See also King v. Board, 77 Fed. Rep. 583.
In the further prosecution of my investigation, I deem it proper to consider the question to what class of judgments the act providing for the levy of taxes to pay judgments was intended to apply. Is a judgment obtained upon a county warrant within its contemplation ? The. supreme court of this state, in Forbes v. Grand County, 23 Colo. 344, discussing the questions when a right of action accrues upon a county warrant, and what the action shall be, uses this significant language : “ While it may be that under some circumstances an action may lie to recover a money judgment against a county upon orders or warrants of this character, yet the policy of the legislature, as evidenced by the various enactments prescribing the manner in which the finances of a county shall be administered, is manifestly against the maintenance of such a suit.” It is evident from the whole tenor of the opinion, and the authorities it cites, that whether the money applicable to the payment of a warrant had been collected and payment of the warrant refused, or whether the board of commissioners failed to levy the proper tax from which the warrant, in its due order, could be paid, the court regarded mandamus as the proper remedy, — in the one case, against the treasurer to compel payment, and in the other, against the board to compel the levy of the tax. It appears from the language we have quoted, that the court was not satisfied that a money judgment could ever be recovered upon a county warrant: [231]*231but, merely to be on tbe side of safety, hypothetically conceded the possibility of such a judgment. For the purposes of this discussion, -its possibility or impossibility, is not very material; and that circumstances might exist warranting the rendition of the judgment, may be admitted. But if, as the court says, the recovery of such a judgment would be against the manifest policy of the legislature, as evidenced by the manner which it has provided for the administration of the finances of counties, then the act concerning judgments can have no application to it. I cannot conceive that the legislature intended to provide especially for the payment of a judgment, the rendition of which was contrary to its policy. It is not supposable that the legislature made it the duty of the board of commissioners of a county to levy a tax for the payment of a judgment which it did not intend should ever be rendered.
Another reason why the provisions of the judgment act were not designed to embrace judgments upon county warrants, appears upon the face of the act itself. The county commissioners may, at their option, pay all or any part of a judgment by a warrant. A judgment upon a county warrant is within the purview of the statute, or it is not. If it is not, there is nothing to discuss. But if it is, then at the option of the commissioners it may be paid by warrant. The act makes no distinction between judgments, and if its provisions are applicable to a judgment upon a county warrant, then such a judgment is upon precisely the same footing with any other judgment against a county ; the commissioners have a right, by the explicit terms of the law, to pay the judgment by a warrant; and to change the law, or deny the right which it gives, is not within the power of the courts. Now the second warrant may also be reduced to judgment, this judgment paid by another warrant, and the same process repeated forever, so that the time would never come when the county’s creditor would receive his money. We have no right to impute a want of sense to the legislature, or to suppose that a situation so absurd was within its contemplation.
[232]*232Furthermore, by carrying into' effect the statutory provisions concerning the payment of county warrants, those warrants will be paid in their proper order, without danger to the solvency of the county, but if, by the reduction of a warrant to judgment, a special tax, in addition to all other taxes for which the law provides, may be levied for its payment, another possibility arises, against which it has been the consistent policy of the legislature, as shown by all its enactments affecting the finances of the county, to guard. Each holder of a warrant may, upon its ineffectual presentation to the county treasurer, bring suit and recover judgment upon it; and the several judgment creditors, whose judgments were recovered upon warrants, may then require the levy of a tax in addition to that provided for the payment of the warrants; and such additional levy may amount to one and one half per centum on the dollar of the valuation of the current fiscal year. This process may be repeated each fiscal year, the solvency of the county threatened, if not destroyed, and the purpose of the legislature to enable counties to pay their debts by a moderate tax, to be levied, if necessary, through a series of years, so that the ability to maintain county governments may not be impaired, thwarted.
The power invoked in mandamus proceedings upon a judgment against a county, recovered on a county indebtedness, is the power to levy a tax to pay the indebtedness; and in this case the extent of that power must be found in the statute providing the tax to be levied for the payment of outstanding county warrants. The complaint shows that the judgment in respect to which relief is sought, was recovered upon warrants and orders of the county. If the board of commissioners each year since the issue of the warrants, levied the highest amount of tax authorized by the law providing the mode of their payment, it performed its whole duty. Its power was exhausted; and as no court can compel it to act in excess of its power, there is no remedy for the relator upon its judgment. If the board has failed to levy the proper taxes for the payment of the warrants, then, as is said by Judge [233]*233Sanborn, in his dissenting opinion in Stryker v. Grand County, supra, the relator would be entitled to a writ of mandamus to compel the levy of the statutory taxes to be applied to the payment of such warrants in the order prescribed by law. But the petition contains no allegation that the respondent failed in any particular in the performance of its duty in the levy of the taxes. It is true it states that the board failed and refused to levy a tax for the payment of this judgment, but as the levy of such a tax was no part of the duty of the board, that allegation goes for nothing. For aught that the petition shows, the board levied taxes every year for the payment of warrants to the full limit of its statutory power. In this respect the petition is fatally defective. The averments of the party applying for a writ of mandamus must embrace every fact necessary to entitle him to relief, and it must negative every hypothesis inconsistent with his right to judgment. Kephart v. People, 28 Colo. 73; 62 Pac. Rep. 946; Vincent v. Hinsdale County, 12 Colo. App. 40. See also Oil & Glass Co. v. Denver National Bank, 14 Colo. App. 79.
It is true, as counsel for the relator suggest, that the petition does not state to what class the warrants upon which the judgment was recovered, belonged, but the omission is immaterial. There are two classes of warrants which may be issued by a county, namely, warrants drawn against the general fund, and warrants drawn against a special fund. Each fund is supplied by taxation within limits prescribed by the legislature, and if a warrant of either kind is put into judgment, the only tax the commissioners are bound to levy is the tax provided for the fund to which it belongs, so that the conclusion which I have reached, applies equally well to warrants of either class reduced to judgment. In my opinion, the only judgments to which the provisions of the act authorizing a tax for the payment of judgments, were intended to apply, are judgments recovered upon claims for the payment of which, as such, no statutory provision exists, and whose payment cannot be compelled, except in pursuance of those provisions, after their reduction to judgment, — as for instance, a claim [234]*234denied allowance by the commissioners, and for which, therefore, no warrant could be issued.
I cannot forbear remarking that even upon the relator’s own theory of his case, his petition is insufficient. The power of the commissioners to levy the tax which the relator demands, should have appeared from the statements of the petition. The act upon which he relies provides that all the taxes levied for the payment of judgments shall not exceed one and one half per centum on the dollar of assessed property for any one fiscal year. If, at the time demand was made upon the commissioners for the levy of a tax to pay this judgment, one and one half per centum on the dollar of the assessed property had been levied for the same fiscal year to pay judgments, the commissioners had exhausted their power, and no further levy for such purpose would have been legal, or valid. It should have appeared from the petition either that no tax at all had been levied for that purpose, or, if levies had been made, that they did not amount in the aggregate to one and one half per centum of the assessed property. On this subject the petition is silent. That the board had levied taxes up to the authorized limit, and was without power to make further levy, is entirely consistent with all the averments of that pleading; so that, even if a levy might be ordered for the payment of this judgment, bjr virtue of the provisions of the judgment act, the petition, by failing in the statement of facts from which the power of the commissioners to make the levy might be deduced, showed no right in the relator to the writ.
It is suggested that the refusal of the board to levy a special tax for the payment of this judgment, is in some way,— but how is not explained, — in violation of its duty to the relator, and not consistent with business integrity. I shall devote a few moments to the suggestion. County warrants are issued by statutory authority, and the statute prescribes the conditions upon which they shall become payable, the order of their payment, and the method for providing the fund from which payment must come. Every purchaser of a county warrant is chargeable with notice of the statute under which it [235]*235was issued, and takes it subject to the mode of payment which the legislature has imposed. United States v. Macon, supra ; Forbes v. Grand County, supra. He is not misled. He knows exactly what to expect. He is fully acquainted with his own rights and those of the county, and to permit him, by virtue of a judgment he may obtain upon the warrant, to assert a claim which did not pass to him by the transfer of the paper, and subject the people of the county to a tax for its payment in addition to that provided for the payment of warrants, would be unjust, but not to him.
It is asserted that the doctrine announced here in relation to the mode of payment of judgments upon county warrants clashes with the decisions of this court in People v. Rio Grande County, 7 Colo. App. 229, and 11 Colo. App. 124. Where the conflict is, or out of what it arises, is not specified. No question in this case was in that, and no question in that, is in this. There can be no inconsistency between a decision that to compel payment of a judgment against a county, recovered upon a claim for the payment of which, as such, there is no statutory provision, resort must be had to the statute requiring the levy of a tax to pay judgments; and a decision that the payment of a judgment recovered upon a claim for the payment of which, as such, the statute specifically provides, cannot be compelled, except in accordance with the mode prescribed by the statute for the payment of the claim.
This is the first time the principal question I have discussed has been squarely presented to this court; and if, in cases where it was not raised, or was subordinated to some other question, and so failed to receive the consideration to which, in my opinion, it is now entitled, statements have escaped the court from which it might be inferred that we were committed to a doctrine different from that announced here, I regard this as a very proper occasion for their retraction.
The judgment should be reversed.
Reversed.