MABRY, Justice.
The defendants below, who are the appellants here, have moved for rehearing and upon consideration of the motion, we withdraw our former opinion heretofore filed, substituting this one therefor.
Suit was filed on the 28th day of April, 1941, by W. Peter McAtee, appellee herein (but hereinafter to be called plaintiff), as assignee of the Surety Products Company, of Cleveland, Ohio, against certain named persons as members of the Sandoval County Board of Education, seeking to recover from said defendants $316.06 for roofing material furnished by his assignor to the said county board of education for repair of a particular school district of the county; no answer was filed and default judgment was taken for the amount claimed.
Upon failure to collect upon said judgment the within suit in mandamus was thereafter brought against all parties named in said original suit and, in addition, against those named herein as defendants and appellants (these to be hereinafter referred to as defendants). Upon the petition of plaintiff an alternative writ of mandamus was issued, to which an answer was filed by the State Tax Commission (all other defendants defaulting), setting up as a defense the Bateman Act (Secs. 7-607 to 7-613, inch, Comp. 1941) and the restrictions imposed by the School Budget Law, and pleading and relying upon the distinction here to be drawn by the law between tax liabilities of property only within a school district benefited, because of this being a direct charge against the district, and the non-liability of property within the county as a whole for the payment of such direct charges.
It must be admitted that the roofing material so sold could, under the budget act, properly be used only in the repair of a school building, or buildings, in a particular district, or districts. Judgment was given for plaintiff and defendants appealed, after the overruling of their motion to vacate and set aside the peremptory writ so issued, on the ground of fundamental error.
The material was sold in October, 1938, and it was, therefore, under the Bateman Act, to he paid for, if at all, from the current tax collections of the fiscal year 1938-1939. The writ alleges “that there are no funds on hand or available for the payment of the judgment”, etc.
As to the defense that to require a tax levy to pay the judgment so rendered would be violative of the Bateman Act, it need only be said that it is not enough merely to plead the act; but the burden rests upon the party relying upon it to both “plead and prove” its application. Landers v. Board of Education, 45 N.M. 446, 116 P.2d 690. If the Bateman Act were the sole defense of defendants it would have to be said that it affords no relief because it is not shown how its application here would defeat the claim. But their reliance is, as well, upon another and a controlling consideration, viz., that of the operation of the law known as the School Budget Act.
It must be conceded that this is not a liability of any other district than the particular school district which used the roofing material purchased; that it is a matter of direct charge recoverable only from the district for which the purchased material was allocated and used, and even from it, as against proper pleading and proof, only in the event that current revenues sufficient in amount to pay the bill were collected; that, therefore, an imposition of any part of the obligation to so pay on any district except the partichlar district, or districts, for which the material was purchased should not receive legal sanction. These propositions seem elementary and should require nothing further for support than their mere statement. Moreover, in view of the language of the statute expressly making such purchases for school house repairs direct charges against the particular district, and the limited authority to be exercised by the County School Board, which represents, in the capacity of agent, the individual school districts in making such purchases, it seems clear that a tax could be levied only upon the property of the taxpayers within the particular district benefited.
Plaintiff, as we understand him, does not question this contention excepting as the rule must be affected and limited by the fact that the county school board permitted the judgment to run against it because of its failure to keep proper books by which it might have been disclosed where the material was actually used; that this negligent method of book-keeping amounted, in law, to a tort, which would result in the imposition of liability upon the whole county. Such a contention would presuppose power in the school board to exercise county-wide authority, which it did not have, certainly not in the respect contended for; and, of course, it likewise presupposes the commission, of a tort through faulty book-keeping methods. which we are not, under the circumstances, prepared to concede, although that question is not decided.
The county board of education purchased the materials in question from plaintiff’s assignor and he properly sued said board for recovery of the purchase price. See Sections 55-801, 55-807 and 55-808, Comp.1941. And, it will also be conceded, perhaps, that even if the seller, or plaintiff, had possessed knowledge of the rural school district to which the roofing material purchased had been allocated and used, he could not have maintained a suit directly against the board of directors of the particular district for the purchase price thereof. Thrall et al. v. Grant County Board of Education et al., 38 N.M. 358, 33 P.2d 908. The question here is not whether the county board may be sued for the obligation, but, rather, whether plaintiff has sought the appropriate remedy for its collection.
It is interesting to note that by the findings there were several rural school districts of the county with sufficient revenue individually budgeted and collected for school house repairs to pay for this purchase. Possibly one such district received and used the roofing material. If the county board of education, whose duty it is to know, had shown this fact, the judgment might have been paid without occasion for seeking a forced levy. But this fact does not affect the result. It is a complete answer to plaintiff’s contention to ‘say that as between the various school districts in the county only that one receiving and using the material may be required to pay.
We must look to some specific statutory authority by which we could do what the trial court undertook to do, viz., subject the property of the whole county to a tax levy to pay the obligation which, under the School Budget Act, is made a direct charge against the particular school district benefited.
The School Budget Act provides that repairs to buildings and equipment shall be a direct charge against the individual district, although we know that the cost of maintaining the teaching staff, transporting pupils to and from schools, etc., constitutes a general maintenance expense of the taxpayers not so specifically allocated. 1941 Comp., Sec. 55-603.
The School Budget laws in force in October, 1938, when the original indebtedness was incurred, are to be found in Art. 6 of Chap.
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MABRY, Justice.
The defendants below, who are the appellants here, have moved for rehearing and upon consideration of the motion, we withdraw our former opinion heretofore filed, substituting this one therefor.
Suit was filed on the 28th day of April, 1941, by W. Peter McAtee, appellee herein (but hereinafter to be called plaintiff), as assignee of the Surety Products Company, of Cleveland, Ohio, against certain named persons as members of the Sandoval County Board of Education, seeking to recover from said defendants $316.06 for roofing material furnished by his assignor to the said county board of education for repair of a particular school district of the county; no answer was filed and default judgment was taken for the amount claimed.
Upon failure to collect upon said judgment the within suit in mandamus was thereafter brought against all parties named in said original suit and, in addition, against those named herein as defendants and appellants (these to be hereinafter referred to as defendants). Upon the petition of plaintiff an alternative writ of mandamus was issued, to which an answer was filed by the State Tax Commission (all other defendants defaulting), setting up as a defense the Bateman Act (Secs. 7-607 to 7-613, inch, Comp. 1941) and the restrictions imposed by the School Budget Law, and pleading and relying upon the distinction here to be drawn by the law between tax liabilities of property only within a school district benefited, because of this being a direct charge against the district, and the non-liability of property within the county as a whole for the payment of such direct charges.
It must be admitted that the roofing material so sold could, under the budget act, properly be used only in the repair of a school building, or buildings, in a particular district, or districts. Judgment was given for plaintiff and defendants appealed, after the overruling of their motion to vacate and set aside the peremptory writ so issued, on the ground of fundamental error.
The material was sold in October, 1938, and it was, therefore, under the Bateman Act, to he paid for, if at all, from the current tax collections of the fiscal year 1938-1939. The writ alleges “that there are no funds on hand or available for the payment of the judgment”, etc.
As to the defense that to require a tax levy to pay the judgment so rendered would be violative of the Bateman Act, it need only be said that it is not enough merely to plead the act; but the burden rests upon the party relying upon it to both “plead and prove” its application. Landers v. Board of Education, 45 N.M. 446, 116 P.2d 690. If the Bateman Act were the sole defense of defendants it would have to be said that it affords no relief because it is not shown how its application here would defeat the claim. But their reliance is, as well, upon another and a controlling consideration, viz., that of the operation of the law known as the School Budget Act.
It must be conceded that this is not a liability of any other district than the particular school district which used the roofing material purchased; that it is a matter of direct charge recoverable only from the district for which the purchased material was allocated and used, and even from it, as against proper pleading and proof, only in the event that current revenues sufficient in amount to pay the bill were collected; that, therefore, an imposition of any part of the obligation to so pay on any district except the partichlar district, or districts, for which the material was purchased should not receive legal sanction. These propositions seem elementary and should require nothing further for support than their mere statement. Moreover, in view of the language of the statute expressly making such purchases for school house repairs direct charges against the particular district, and the limited authority to be exercised by the County School Board, which represents, in the capacity of agent, the individual school districts in making such purchases, it seems clear that a tax could be levied only upon the property of the taxpayers within the particular district benefited.
Plaintiff, as we understand him, does not question this contention excepting as the rule must be affected and limited by the fact that the county school board permitted the judgment to run against it because of its failure to keep proper books by which it might have been disclosed where the material was actually used; that this negligent method of book-keeping amounted, in law, to a tort, which would result in the imposition of liability upon the whole county. Such a contention would presuppose power in the school board to exercise county-wide authority, which it did not have, certainly not in the respect contended for; and, of course, it likewise presupposes the commission, of a tort through faulty book-keeping methods. which we are not, under the circumstances, prepared to concede, although that question is not decided.
The county board of education purchased the materials in question from plaintiff’s assignor and he properly sued said board for recovery of the purchase price. See Sections 55-801, 55-807 and 55-808, Comp.1941. And, it will also be conceded, perhaps, that even if the seller, or plaintiff, had possessed knowledge of the rural school district to which the roofing material purchased had been allocated and used, he could not have maintained a suit directly against the board of directors of the particular district for the purchase price thereof. Thrall et al. v. Grant County Board of Education et al., 38 N.M. 358, 33 P.2d 908. The question here is not whether the county board may be sued for the obligation, but, rather, whether plaintiff has sought the appropriate remedy for its collection.
It is interesting to note that by the findings there were several rural school districts of the county with sufficient revenue individually budgeted and collected for school house repairs to pay for this purchase. Possibly one such district received and used the roofing material. If the county board of education, whose duty it is to know, had shown this fact, the judgment might have been paid without occasion for seeking a forced levy. But this fact does not affect the result. It is a complete answer to plaintiff’s contention to ‘say that as between the various school districts in the county only that one receiving and using the material may be required to pay.
We must look to some specific statutory authority by which we could do what the trial court undertook to do, viz., subject the property of the whole county to a tax levy to pay the obligation which, under the School Budget Act, is made a direct charge against the particular school district benefited.
The School Budget Act provides that repairs to buildings and equipment shall be a direct charge against the individual district, although we know that the cost of maintaining the teaching staff, transporting pupils to and from schools, etc., constitutes a general maintenance expense of the taxpayers not so specifically allocated. 1941 Comp., Sec. 55-603.
The School Budget laws in force in October, 1938, when the original indebtedness was incurred, are to be found in Art. 6 of Chap. 120, N.M.Comp.1929 (1941 Comp.,Art. 6) ; Secs. 120-603 and 120-604 therein, were amended in 1931 and appear under the same numbers in the 1938 Supplement. Sec. 120-601, Comp.1929 (1941 Comp., Sec. 55-601) requires the School Budget Commissioners and the Educational Budget Auditor to fix budget allowances. Sec. 120-602, Comp.1929 (1941 Comp., Sec. 55-602) requires the governing school board to submit to the Budget Commissioners an “estimate of school maintenance and direct district charges.”
Sec. 120-603, N.M.Supp.1938, preserves the distinction between maintenance or administrative expense funds, and direct district charge funds. Sec. 120-604, N.M. Supp.1938, defines what shall constitute the direct charges against the several districts in the following language: “District direct charge funds shall include property insurance, lease of school buildings, erection of school buildings, repair to school buildings and equipment, new equipment, purchase of school grounds, improvement of grounds and buildings, interest on and sinking funds for district school bonds, and may include transportation of pupils when necessary.”
Section 120-617, N.M.Comp.1929 (1941 Comp., Sec. 55-625) reads as follows: “The district tax proceeds for direct charges shall be credited to each district from which collected, in a separate fund, and be disbursed upon the warrant or voucher of the governing authority of such district.”
Section 120-618, N.M.Comp.1929 (1941 Comp. Sec. 55-626) contemplates that district funds shall be segregated and disbursed only for that particular district. Sections 120-612 (1941 Comp., Sec. 55-615) and 120-620, N.M.Comp.1929 (1941 Comp. Sec. 55-628) prohibit expenditures contrary to the budget allowance.
Such were the laws in effect when the roofing material was delivered, and petitioner’s assignor was charged with constructive notice and knowledge thereof.
Then, as now, there was no warrant of law for paying out of the general county maintenance or administrative funds, a debt incurred as a direct charge against a particular district. Nor was there any authority of law to budget a direct charge save for a particular district or to levy a tax for the payment of a direct charge, save upon property within that particular district, and save within the budget allowance therefor. Any expenditure of monies for purposes contrary to the budget allowance therefor was, necessarily, prohibited.
It has been suggested that Sec. 7 of Art. VIII of the New Mexico Constitution affords ample authority for the payment of judgments through tax levy, and that the provision is self-executing. This section of the Constitution reads: “No execution shall issue upon any judgment rendered against the board of county commissioners of any county, or against any incorporated city, town or village, school district or board of education; or against any officer of any county, incorporated city, town or village, school district or board of education, upon any judgment recovered against him in his official capacity and for which the county, incorporated city, town or village, school district or board of education, is liable, but the same shall be paid out of the proceeds of a tax levy as other liabilities of counties, incorporated cities, towns or villages, school districts or boards of education, and when so collected shall be paid by the county treasurer to the judgment creditor.”
Obviously, this provision of the Constitution cannot be relied upon for the enforcement of an unauthorized judgment; it, necessarily, presupposes a valid one. And, it cannot be said that this provision of the Constitution is self-executing and requires no legislative act for the establishment of the machinery of taxation for its proper operation.
There is, likewise, no merit to the contention that the judgment is res adjudicata, and that we cannot go behind it. The fact that the judgment upon the account was by default does not change the situation. The only issue tendered in the original suit on account was whether the county board of education owed the debt; and the only effect of the judgment was to determine that it did owe the debt. Any act of the board in attempting to purchase materials to be charged against the county as a whole, since its jurisdiction did not extend so far, would have been ultra vires and therefore void.
When the remedy of mandamus was thereafter, and in this suit now before us, sought to compel a levy against the property of the entire county to pay the judgment theretofore rendered, defendants appropriately urged that, notwithstanding the judgment against the board, no valid tax may be laid upon any property for the payment of the judgment except such as is authorized by law. The Legisislature determines against whom the charge shall lay, and determines what property shall be liable in tax therefor.
It is, obviously, necessary that before such a constitutional provision should operate that the Legislature provide the machinery for assessing, levying and collecting the tax. See Lannigan v. Gallup, 17 N.M. 627, 131 P. 997; State v. Perrault, 34 N.M. 438, 283 P. 902. So, when we look for legislative authority for the levy of a .tax against the property of the entire county to pay a debt of this character, we find none; but on the contrary we do find, as hereinbefore shown, that the Legislature has determined that only the district benefited shall be called.upon to pay any of the costs covered by these direct charge items.
It is not enough to say that the burden of education in any one or more districts of the county is the burden of the whole county, and that, therefore, it is immaterial that in circumstances such as this where the use of the material cannot be traced, that the taxpayers of all the county must be called upon to pay. The School Budget Act expressly provides a contrary method for the charging and liquidation of such direct charge expenditures.
A good deal of difficulty may be avoided when we notice that the county school board is not in fact a board representing the entire county. It has jurisdiction over rural schools only, which excludes the schools of municipalities and independent districts of their respective counties. As the agent of the several districts to so purchase and lay these direct charges it is not at the same time made agent for the purpose of burdening all the taxpayers of the county, including those of municipalities and independent school districts, with the costs of these direct charge obligations which are by law expressly laid upon some particular rural school district.
If it were possible to so burden the property of the whole county for this direct charge item for repair, insignificant in itself, the rule would likewise apply if it were a more substantial amount, including even the construction of an entire new building. The Legislature has, very clearly, and, we cannot say inappropriately, provided specifically how and by whom such expenditures may be paid.
It is a general rule of law that in a mandamus proceeding to enforce the payment of a judgment against a municipal corporation, the court may look behind the judgment to the debt, notwithstanding the merger, to determine the remedy provided by law for its enforcement. United States ex rel. Huidekoper v. Macon County, 99 U.S. 582, 25 L.Ed. 331; Atchison, T. & S. F. R. Co. v. Territory, 11 N.M. 669, 72 P. 14; James v. County Commissioners, 24 N.M. 509, 174 P. 1001; United States ex rel. Harshman v. County Court of Knox County, 122 U.S. 306, 7 S.Ct. 1171, 30 L.Ed. 1152.
Obviously, the only theory which would •support a levy against the property of Sandoval county as a whole would be upon the assumption that the name “The Sandoval County Board of Education” implies that it is a “county board” in the larger sense, and as such, judgments against it, under the provisions of Article VIII of the Constitution heretofore noticed, could be enforced by a county-wide tax levy. As we have heretofore shown it is not a county board in that sense, and the New Mexico constitutional provision hereinbefore referred to is not self-executing. Although it can sue, and be sued, its authority does not extend so far as to permit it to suffer judgment as to a claim upon which the whole county (which it does not represent) could not be liable, and to thus indirectly secure to the creditor the right to enjoy the benefit of a county-wide levy of tax to pay it, which right it otherwise would not have.
Other questions raised need not be noticed. For the foregoing reasons the judgment is reversed, with direction to the trial court to discharge the writ, and, it is so ordered.
BRICE and THREET, JJ„ concur.
SADLER, C. J., and BICKLEY, J., dissenting.