attack appellee's right to relief on several grounds. Claim is made that requisite formal demand and refusal do not appear. Specific demand and refusal are indispensable whenever necessary to show default in the duty to be commanded. In this necessity to show default is to be found the underlying reason of the requirement. Here the facts develop conclusively that it was the city's unconditional legal duty, certain and known, to make the levy under its contractual obligation, without demand, and that, in view of its conduct, there would have been refusal to comply if a demand had been made. Under these circumstances, there was no defect in the case for want of a more formal demand and refusal. The authorities on the subject have been extensively collated in a recent text (19 Am. & Eng. Ency, of Law [2d Ed.] pp. 759-761), but we deem it unnecessary to review them on a matter so obvious. It is also contended that, as to so much of the demand as was not reduced to judgment, the mandamus should not go; but in view of parts of the claim having been put in judgment, and because the tax levy sought is a specific contractual obligation, it was proper practice in a state court to obtain judgment on the demand, and a writ of mandamus for its enforcement, in the same suit. Dillon's Municipal Corps. (4th Ed.) §§ 852853; City of Houston v. Emery, 76 Tex. 282, 13 S. W. 264. Insistence is made that appellee is not entitled to a tax levy because, as to the future, his action is premature, and, as to the past, it is too late to make a lawful levy. This claim demands careful scrutiny, since its effect, if sound, will be to destroy a solemn contractual obligation either "on the upper or nether millstone," as it would be an easy matter to fight off the execution of a mandate beyond the year. The writ of mandamus, being a command based on default of duty, cannot go to the future in advance of default (Commissioners v. Allegany County, 20 Md. 449, 460; High on Extra. Remedies, §§ 12, 144); but there is no reason why it may not extend to the future in redress of a past default, and we hold that it may. Any other rule would often compel the courts to make an en masse levy in one year, although it might be essential to the very life of the municipality to parcel it through years of the future. As regards its being too late to levy for past years, we observe that the present requirement of the city's charter for the levy to be made by the council "at the first regular meeting in May of each year" (Sp. Laws 1st Called Sess. 1901, p. 12, c. 4) was not in the charter when the bonds were sold, the provision then being merely "to levy and collect annual taxes." Sp. Laws 1891, p. 105, c. 22. It is familiar that, as a general rule, the mandate will go for a levy only in the manner and at the time prescribed by law (Desty's Taxation, vol. 1, p. 533), but this gives no countenance to the claim that by neglect to perform the contractual obligation of making a levy at the time directed by law, the duty can be entirely escaped. It would be a reproach to the law to so hold. The duty in such case is a continuing one that may be exercised under judicial mandate by relation back, else there would be the anomaly in our jurisprudence of reward accorded to default, of practically a new mode for the discharge of contracts. In City of East St. Louis v. Amy, 120 U. S. 600, 7 Sup. Ct. 739, 30 L. Ed. 798, the requirement, as here, was of an annual levy to provide for payment of bonds, which had been neglected for several years, and it was objected that a tax could not be levied in one year sufficient in amount to make good the past defaults and pay the entire demand at once. The contention was disposed of in the opinion by Mr. Chief Justice Waite as follows: "It only remains to consider the objection that a tax cannot now be levied sufficient in amount to pay the entire judgment at once. The judgment is for interest in arrear and a small amount of principal. The law required a tax to be levied annually sufficient to pay all interest as it accrued, and the principal when due. This was neglected, and consequently there is now a large accumulation of debt which ought to have been paid in installments. Thus far the inhabitants have been allowed to escape taxation at the times it ought to have been laid, and to which they were under constitutional obligations to submit. The accumulation of the debt was caused by their own neglect as members of the political community which had incurred the obligation. Such being the case, we see no reason why it was not in the power of the court to order a single levy to meet the entire judgment, which was all for past-due obligations. Whether such a tax would be so oppressive as to make it proper not to have it all collected at one time was a question resting in the sound discretion of the court in ordering the collection. There is nothing here to show that there ought to have been a division." But it is insisted that, under special constitutional restraint, levy for the past years cannot be made, and we are cited to section 5, art. 11, Const. Tex., in these words: "Cities having more than ten thousand inhabitants may levy, assess and collect such taxes as may be authorized by law, but no taxes for any purpose shall ever be levied for any one year, which shall exceed two and a half per cent. of the taxable property of such city." The specific contention is that the percentage of tax omitted to be levied in the past years for the unrefunded bonds, if added to the percentage now being validly levied as to such bonds, will exceed the 21⁄2 per cent. limit imposed. The bondholders in question took their bonds subject to the law in force at the time, including this constitutional limitation upon the taxing power of the city, and the courts cannot send the writ of mandamus beyond the taxing power as prescribed by law. Huidekoper v. Macon, 99 U. S. 582, 25 L. Ed. 331; Commissioners v. King (U. S. App.) 67 Fed. 202, 14 C. C. A. 421. The question, therefore, recurs to the meaning of the constitutional provision. It does not, be it observed, say when the taxes authorized shall be levied, assessed, or collected, nor does it limit the percentage of taxes to be levied in any one year, but only "for" any one year. It is certainly a natural construction of the language to hold that it fixes a limit, not to taxes levied in (that is, "within the bounds or limits of") any one year, but to taxes levied for (that is, "with reference to the needs, purposes, or uses of") any one year. See Cent. Dict. A different construction would be bad in policy; it would enable a city, by neglect of its own duty, to evade its contractual obligations. Courts should be loth to adopt a construction, especially of the organic law, that would encourage or open the way to wrong. In Suth erland's Statutory Const. §§ 321-322, it is pointed out that, even where the precise intent is not plain, "the effects and consequences enter with more or less force into consideration," and reference is made to the early case of Wales v. Stetson, 2 Mass. 146, 3 Am. Dec. 39, in which it is held that, construing the provisions of a law, "they ought to receive such a reasonable construction, if the words and subject-matter will admit of it, as that the existing rights of the public or of individuals be not infringed." There is a dearth of authority on the particular subject, the only case on the precise point to which we have been cited being that of Bowen, County Treasurer, v. West (decided by the Court of Appeals of Colorado) 50 Pac. 1085, in which a statutory provision similar in terms was construed in accord with the views we have announced. We conclude that, consistently with the constitutional provision in question, a tax provided for as part of a contractual obligation may be levied for each omitted year, so far as it is, in connection with other taxes valid as to it, within the 22 per cent. tax limit for that year, unless defeated by laches or limitation (Teat v. McGaughey, 85 Tex. 478, 22 S. W. 302; Sayles' Ann. Civ. St. Tex. 1897, art. 3358), although the levy for such year may be actually made in a future year, and may, when added to the valid taxes for such future year, go beyond the limit noticed. In other words, to such a levy in a future year, the constitutional limitation in question does not apply. The other contentions made against appellee's right to a tax levy are not such as to require special notice. Finding no good reason advanced for treating as abstract the question of parties in its relation to appellee's right to a tax levy, we proceed to consider that question. In view of what has already been said as to parties on the other branch of the case, it will not be necessary to here elaborate. No duty of any nature is required of the refunding bondholders as to the tax levy. They are without interest in the controversy, the right to the tax levy, or in the subject-matter, the taxes to be raised from the levy, or in the event or object of the suit-the application of such taxes. The judgment sought would not affect any interest of theirs. The most to be said is that, in the course of the litigation, points of law may be determined that will make a precedent harmful of their interests in some other litigation; but this, of course, is insufficient as a reason for making them parties. It is perfectly plain, both on principle and under the authorities we have before cited, that the refunding bondholders were not necessary parties on this branch of the case. In reaching the conclusions announced, under which provision will doubtless have to be made some time for payment of the unrefunded bonds, we have been deeply sensible of the great burden of debt on the city for which, in view of its deplorable loss of the dam, it has no substantial equivalent; but we cannot permit such considerations to weigh against our plain duty under the law, especially as we are entirely persuaded that to meet the obligations without taint of repudiation will be better for the public interest, better for the administration of justice, better for the ultimate destiny of the city. In so saying, we but tread in the steps of able jurists who have gone before. Mr. Justice Stayton, in a somewhat similar case, used this language: "The record illustrates the embarrassments under which the city labors, and its heavy weight of debt; but this was voluntarily contracted, and, when called upon to enforce its payment, the courts have a simple duty to perform, from which seeming hardships cannot be permitted to divert them." Voorhies v. Houston, 70 Tex. 342, 7 S. W. 684. Judge Cooley, in the same line of thought, observed: "It sometimes hap-. pens that a municipality is found to have contracted indebtedness to an extent that is felt to be extremely burdensome, and then a local sentiment may spring up in favor of refusing to raise the necessary taxes for its payment. The purpose may be either to avoid the payment altogether, or to postpone it for a time, or, perhaps, to force a compromise with creditors and an abatement. Whatever may be the purpose, the refusal to levy taxes to meet municipal obligations according to terms is a public wrong." Cooley's Taxation (2d Ed.) p. 75. Mr. Justice Swayne, pronouncing judgment for the United States Supreme Court, pertinently declared: "The counsel for the plaintiffs in error has called our attention, with emphasis and eloquence, to the diminished resources of the city, and the disproportionate magnitude of its debt. Much as, personally, we may regret such a state of things, we can give no weight to considerations of this character, when placed in the scale as a counterpoise to the contract, the law, the legal rights of the creditor, and our duty to enforce them." City of Galena v. Amy, 5 Wall. 705, 18 L. Ed. 561. We answer the questions certified, that the refunding bondholders were not necessary parties in propriis personis, either as to the part of the case relating to the money and uncollected taxes, or as to the part concerning the tax levy, and that consequently the Court of Civil Appeals erred in the particulars of inquiry. PADELFORD, J. I concur in the wellconsidered opinion of the Chief Justice filed herein. Whenever a person has the possession, title, and management of property or funds for the benefit of others, to that extent which makes him the legal owner and possessor of such property or funds, with the duty imposed to protect the same by suit if necessary, such trustee or quasi trustee can institute and prosecute, or defend, suits affecting such property or funds, without the necessity of joining those interested in the management and appropriation of such property or funds, and more especially is this the case, where the trust or quasi trust relationship is created by statute. This rule applies to guardians, executors, and administrators of decedents' estates, statutory assignees, etc. With equal if not with more force does this rule apply to defendants upon whom the statutes of this state impose the duty not only of raising by taxation, but of investing and preserving, the funds in controversy for all persons interested therein. It is made the duty of the city of Austin, if necessary to preserve this fund, to institute suit, and such suit can be instituted and prosecuted to final judgment by the city alone, as was done in the case of City of Sherman v. Williams, 84 Tex. 421, 19 S. W. 606, 31 Am. St. Rep. 66. It is equally the duty of the defendant, when a suit is instituted against it with reference to this fund, to see that it is legally appropriated. The law creating and imposing this trust or quasi trust relationship upon the defendants makes it a criminal offense, and a forfeiture of their offices, for a failure in the performance of this duty. Such being the relationship of the defendants to this fund, they could, and it was their duty by plea and proof, to present to the court all of the rights of all of the parties beneficially interested in this fund, without the necessity of joining such parties. Again, where by reason of the number of the beneficiaries it is inconvenient to make them parties, it is the rule that such beneficiaries are not necessary parties. In accordance with both of the above principles or rules of procedure, the refunding bondholders were not necessary parties to this suit. MINOR, J. I concur in the opinion of the majority of the court as to the questions de cided, but not in all the reasoning of the opinion. In my opinion, there was no necessity to make the refunding bondholders actual parties to the suit; wherefore both of the questions certified should be answered in the affirmative. As to the relief sought relating to the fund in the treasury and the levied but uncollected taxes, the refunding bondholders were constructively before the court, through virtual representation by the city as trustee of said funds for the benefit of those entitled to it. As to the other relief sought-the levy and taxes to pay appellee's judgments-the authorities show clearly that there was no necessity to make said bondholders parties. Upon the questions incidentally passed upon by the majority of the court, it is my opinion: 1. That, under the pleadings of appellee and the facts found, appellee had no right to a mandamus directing tax levies for the year 1904 and subsequent years, because said writ cannot be issued in advance of default. 2. That, under the pleadings of appellee and the facts found, appellee was entitled to the writ of mandamus to compel levies of taxes for the previous years in which there were no levies for his benefit. Upon none of the grounds presented in appellants' brief can this right be denied. circuit courts shall have power to issue all Under Const. art. 7, § 14, providing that necessary writs to carry into effect their general and specific powers; section 4, art. 7, providing that the Supreme Court shall have a general superintending control over all inferior courts, and in aid of its appellate and supervisory jurisdiction have power to issue writs of error and other remedial writs, and under the provision that appeals from the probate court must be taken to the circuit court and from thence to the Supreme Court-the Supreme Court has no jurisdiction to issue a writ of mandamus directing a probate judge to enter a nunc pro tunc order granting an appeal to the circuit court, it being a matter exclusively for the circuit court. Mandamus by L. P. Featherstone, as administrator of Mary A. Cole, deceased, against T. C. Folbre, as judge of St. Francis probate court. Writ denied. This is a petition to this court for a writ of mandamus directing T. C. Folbre, as judge of St. Francis probate court, to enter a nunc pro tunc order as of the April term, 1900, of said court, granting to petitioner an appeal from the judgment of the probate court rendered against him on January 29, 1900, for $991.28; affidavit for appeal from the judg· ment having been filed by him, etc. J. R. Beasley, for petitioner. WOOD, J. (after stating the facts). The application is made direct to this court because it is said "the circuit court will not be in session until next March, and the necessity is urgent," etc. Section 14 of article 7 of the Constitution provides: "The circuit courts shall exercise a superintending control and appellate jurisdiction over county, probate, court of common pleas, and corporation courts and justices of the peace, and shall have power to issue, hear and determine all the necessary writs to carry into effect their general and specific powers, any of which writs may be issued upon order of the judge of the appropriate court in vacation." Section 4, article 7, provides: "The Supreme Court, except in cases otherwise provided by this Constitution, shall have appellate jurisdiction only, which shall be coextensive with the state, under such restrictions as may from time to time be prescribed by law. It shall have a general superintending control over all inferior courts of law and equity. And, in aid of its appellate and supervisory jurisdiction, it shall have power to issue writs of errors and supersedeas, certiorari, habeas corpus, prohibition, mandamus and quo warranto, and other remedial writs, and to hear and determine same." The aid of this court is asked to perfect an appeal from the probate to the circuit court. That is a matter, under our present Constitution, exclusively for the circuit court. The circuit court only has power to issue this writ in order to carry into effect its appellate jurisdiction over the probate court. The framers of the present Constitution, under section 14, art. 7, supra, lodged the power in the circuit courts to perfect their appellate jurisdiction over inferior courts, and to this end gave them authority to issue "all necessary writs." The writ, it will be observed, is not asked in aid of any appellate or supervisory jurisdiction of this court over the probate court, but is asked only in aid of the appellate jurisdiction of the circuit court. The language of our present Constitution differs from that of all prior Constitutions (except that of 1861) in that it gives the Supreme Court power to issue the various writs enumerated in section 4, art. 7, "in aid of appellate and supervisory jurisdiction." These words were doubtless used by the makers of the Constitution having in view the original laws that had been adopted prior thereto, and the decisions of this court construing them. "From the organization of the state, in 1836, until 1851, a period of fifteen years," says this court in Price & Barton v. Page, 25 Ark. 527, "this court held that it had original jurisdiction to grant writs of habeas corpus, mandamus, and quo warranto, and to hear and determine same. In 1851 this court changed its opinion, and held, as long as the Constitution of 1836 remained in force, that this court did not have original jurisdiction of any character, and that writs specifically named in the Constitution could only be used as a means of superintending control, and in aid of the appellate jurisdiction of the court." The framers of the Constitution of 1874, doubtless having in view the construction that had been put upon the Constitution of 1868 and the prior Constitution by the decision in Price & Barton v. Treasurer, supra, and the earlier decisions, adopted the language in the present Constitution so as to make it certain that the Supreme Court had no original jurisdiction to issue the writ enumerated in section 4, art. 7, supra. Hence it used the language "in aid of its appellate and supervisory jurisdiction it shall have power to issue writs of error and supersedeas, certiorari, habeas corpus, prohibition, mandamus, and other remedial writs," etc. The Constitutions of 1836, 1864, and 1868 omitted the words "in aid of its appellate and supervisory jurisdiction," which is significant. Under our judicial system appeals from all tribunals inferior to the circuit courts go to the circuit courts, and from the circuit courts to this court. This court has no original jurisdiction to control or supervise any proceedings of the probate court. That all belongs to the circuit courts as matters of original jurisdiction, and to this court by appellate and supervisory jurisdiction over the circuit courts. This court supervises and controls all inferior courts to the circuit courts only through the latter courts. In no other way can the harmony of our judicial system as at present constituted be preserved. Construing the two sections of the Constitution as above quoted, our conclusion is that the framers of the Constitution of 1874 did not intend to confer upon the Supreme Court concurrent jurisdiction with the circuit courts to issue writs of mandamus, etc., in aid of the appellate and supervisory jurisdiction of the circuit courts over those courts, but only in aid of its own appellate and supervisory jurisdiction; and its supervisory jurisdiction over the probate courts comes not originally, but by way of appeal and supervision through the circuit courts. ST. LOUIS SOUTHWESTERN RY. CO. v. Under Kirby's Dig. § 3001, relative to the opening of public highways, and declaring that viewers shall be appointed to assess the damages sustained by any person through whose premises the road is proposed to be established, and section 6681, declaring that, when any public road shall cross any railroad, the railroad company shall construct the crossing, and also keep it in repair, the railroad company is entitled to no compensation for constructing the crossing or keeping it in repair, but is entitled to damages for the establishment of the road across its right of way. Appeal from Circuit Court, Clay County, Eastern District; Allen Hughes, Judge. Petition by B. L. Royall and others for the appointment of viewers to lay out a public road, in which the St. Louis Southwestern Railway Company intervened. From a judgment denying to intervener the relief sought, it appeals. Reversed. The appellees in 1902 filed a petition in the county court of Clay county, asking the court to appoint viewers to lay out a public road. The viewers were appointed, and afterwards made a report recommending that the road be established. The line of the proposed road crossed the track of the St. Louis Southwestern Railway Company, and this company filed an intervening petition before the county court, in which it alleged that it would cost not less than $500 to prepare its track and roadbed so as to make it a safe public crossing, and that it would require $25 to keep such crossing in repair, and that the right to cross over its track was of the value of $50, but that the viewers appointed to assess the damages sustained by any person through or across whose premises the road was located had failed and neglected to assess any damages to the intervening company for condemning a crossing over its track and right of way, wherefore it asked the court to set aside the report of the viewers, and to allow the company damages for crossing its right of way. The court ordered the company to be made a party to the proceeding, but held that it was not entitled to any compensation on account of the laying out of the public road across its track, and gave judgment against it. On the appeal to the circuit court the same ruling was made, and the company appealed. S. H. West and J. C. Hawthorne, for appellant. RIDDICK, J. (after stating the facts). This is an appeal by a railway company from a judgment of the circuit court holding that under the statute it was not entitled to any compensation on account of the laying out of a public highway across its track. The statute in reference to laying out and opening public highways requires that viewers shall be appointed, who "shall assess and determine the damages sustained by any person through whose premises the said road is proposed to be established mentioning the damages to each tract separately." Kirby's Dig. § 3001. It would seem that under this provision of the law it was the duty of the viewers to assess the damages sustained by the company by reason of the laying out and establishing the roadway across its track, unless the statute permits highways to be established across the right of way and roadbed of the company without compensation for damages. But we find nothing in the statute that gives such authority. The statute provides that, when any public road or highway shall cross any railroad, the railroad company shall construct the crossing, and also As keep it in repair. Kirby's Dig. § 6681. Now, this does not say that any public road may be established and opened across a railroad without compensation, but that, when public highways are established across a railroad, the railroad company must construct the crossing and keep it in repair. We think it may well be inferred from the language of this statute that no compensation was intended to be paid the company either for constructing the crossing or for keeping it in repair. When a highway is established across a railroad track in this state, it becomes its duty, under this statute, to construct the crossing and keep it in repair. This is a police regulation, and similar provisions are found in the statutes of other states. nothing is said in the act about compensating the company for this burden which the law places upon it, we think that none can be implied. It seems plain to us that none was intended, for it is not usual to allow compensation for expense of obeying a police regulation. Railroad v. Chicago, 166 U. S. 226, 17 Sup. Ct. 581, 41 L. Ed. 979. The burden of keeping up the public highways rests upon the citizens and property owners of the state, and it is not unreasonable to require that the railroad company should keep that portion of the highway where it crossed its track in repair. For this reason, we are of the opinion that the circuit court correctly held that the company was entitled to no compensation for constructing the crossing and keeping it in repair. But the question of establishing the road across the right of way without compensation or without any assessment of the damages therefor is a different matter. Waiving the question of whether it is in the power of the Legislature to compel a railroad company to give a crossing over its right of way without compensation, we, as before stated, find nothing in the statute which authorizes the establishing a public road across a railroad track and right of way without an assessment of damages; and we think damages should be assessed by the viewers, just as the damages to other proprietors of land along the proposed road are assessed. Now, the report of the viewers in this case shows that they made no assessment of damages suffered by the railroad by reason of the public road crossing its track. The public does not seek to deprive the railroad of its right of way. It only seeks to condemn the mere right to cross, which would leave the company free still to use its right of way and track as it had used it before. A right affecting the use of its property by the company to so slight an extent as this country crossing would affect it would not call for any great amount of damages, but, whether large or small, the company has a right to be compensated to that extent. In the case of Chi., B. & Q. R. Co. v. Chicago, the facts were that the city of Chicago established a street across the tracks of a railroad in that |