Bath

This is an original proceeding in mandamus to require the respondents, as members of the board of supervisors of the city and county of San Francisco, to take the appropriate proceedings for the levy and collection of a tax sufficient to pay a judgment which the petitioner holds against the said city and county. The judgment involved the legality of a tax previously assessed and paid by petitioner under protest. It was a final determination of the illegality of the tax and of the obligation of the city to make repayment.

In this proceeding the respondents filed a general demurrer and in argument rely upon the provisions of section 18 of article XI of the constitution, which provides that “no county . . . shall incur any indebtedness or liability in any manner or for any purpose exceeding in any year the income and revenue provided for such year . , . ” It is said that by judicial decisions this section has been interpreted as applying only to actions ex contracto and not to actions ex delicto or to obligations directly imposed by statute such as salaries of public officers. In support of the position that the obligation to pay taxes illegally collected comes within the terms of…