#### The People ex rel. David M. McFall et al. v. The County of Coles.

Announced orally October 19, 1906.

Mandamus—when motion for leave to Me petition will be denied. A motion by tax-payers of a county for leave to file a petition for mandamus to compel the county to pay its governmental expenses before applying any of its revenue to the payment of a judgment indebtedness which it has been commanded by a previous writ of mandamus to pay will be denied, even though the yearly revenue under the maximum rate the county may levy is not sufficient to pay both, since that question should have been raised, if at all, in the first mandamus proceeding.

Motion for leave to file petition for mandamus.

Duncan T. McIntyre, and Bryan N. Tivnen, for relators.

Mr. Chief Justice

Scott announced the opinion of the court:

This is a motion for leave to file a petition for a writ of mandamus. It is an original proceeding in this court. A copy of the petition accompanies the motion. It appears therefrom that the county of Coles is indebted in a large *42amount on account of the expense of constructing a jail and court house. This indebtedness is not bonded, and a portion of it has been reduced to judgment.

At a former term of this court a writ of mandamus was awarded by this court against the county commanding it to pay a certain portion of this debt which is in judgment, and the payment was to be by installments distributed over a period of years, a certain amount to be paid each year.

It further appears that the yearly revenue of the county of Coles which can be collected under the maximum rate fixed' by the statute will not suffice to pay the yearly installment of the debt which the county should pay in accordance with the command of the writ of mandamus heretofore awarded and to pay the ordinary governmental expenses of the county; that if such governmental expenses are fully paid, sufficient of the yearly revenue will not remain to enable the county to fully comply with that writ of mandamus.

The parties máking this motion are tax-payers of the county of Coles, who seek by this proceeding to have the county compelled to fully pay its governmental expenses before applying any money .to the satisfaction of its indebtedness, in which indebtedness is included the judgment indebtedness which it is commanded to pay by the writ of mandamus heretofore awarded.

Had the facts set up by this petition been brought to the attention of the court in the original proceeding they would have been entitled to consideration, but to allow the defense suggested to prevail now would practically be to revoke the action of this court in the former litigation. This should not be done. The petition states no fact which entitles the persons moving to the relief sought, and for that reason the motion will be denied.

Motion denied.