68 W. Va. 25 | W. Va. | 1910
Lead Opinion
The alternative writ, pursuant to the prayer of the petition, commanded that defendant, as assessor, forthwith extend in the land and personal property hooks, for the year 1910, the amount of taxes that will he due from each person assessed with property in said county, by virtue of the orders of levies made and entered by the petitioner on August 23, 1910, and among them a special bridge levy of sixteen cents on each one hundred dollars valuation in said county, or that he show cause before this Court why he refused to do so.
He- justifies his refusal to extend said special bridge levy on the ground of its alleged illegality. He admits that he is a mere ministerial officer charged with the duty of extending all lawful levies made by petitioner, but says it is his duty also to obey the instructions of the State Tax Commissioner, in so far as said instructions are not contrary to law, and that having been advised by said State Tax Commissioner that said special bridge levy is wholly illegal, null and void, he ought not to so extend the same and had declined to do so and would not make such extension unless otherwise commanded by this Court.
The first question presented is, what authority is given by law to the State Tax Commissioner to control an assessor in the discharge of his ministerial duties to extend county levies? Section 30, chapter 39, Code 1906, relating among others to the duty of the assessor with respect to county levies provides: “When an order is made for a levy, the clerk of such court shall, within five days thereafter, make out and certify so many copies thereof as may be necessary and deliver one of the said copies to the officer who according to law is to collect such levy and charge the said officer with the amount of the levy in the proper account book of the county, and shall also deliver one of the said copies to the assessor, or each of- the assessors, if there be more than one for the county. The assessors (or each assessor) shall immediately in the several copies of his land and personal property book, extend in a separate column what may be due from each person by virtue of such levy.” The statute does not say, in the language of respondent’s return, that it shall be his duty to immediately extend “all legal levies laid by the county .court.” He is not given authority to judge of the legality of such levies so made and certified to him, and has no discretion in the premises. State v. Buchanan, 24 W. Va. 362. While mandamus is sometimes said to be a discretionary writ, to be withheld where it manifestly appears that it would operate to execute an illegal act, in this country “it is generally considered as more of a writ of right, to be issued in cases
But do the instructions of the State Tax Commissioner constitute good defense? It is conceded that defendant was not bound, to .respect these instructions if contrary to law. The authority of the State Tax Commissioner, as provided by section 2, chapter 29, Code 1906, is: “To see that the laws concerning the assessment and collection of all taxes and levies, whether of the state or of the county, district or municipal corporation thereof, are faithfully enforced, * * * * * and give such information and require such action as will tend to produce full and just assessments throughout the state, and the diligent collection of all taxes and levies, including license and collateral inheritance taxes, and of fines.” Whether his authority under this law extends to directing, an assessor respecting his duties to extend county levies, seems to us depends upon' the nature and effect of the order of the court laying such levies, and perhaps also upon the provisions made by law for superseding, or reviewing the order of the court; and whether such provisions are exclusive or merely cumulative of other remedies. If the act be judicial in its nature and done in the exercise of the general jurisdiction of the court, the law is that it is not open to collateral attack. The rule is different, if the action, though by such a court, be in pursuance to some special jurisdiction given by a special statute, when if not done in com formity to the statute, it must be regarded void and open to attack whenever any right is asserted under it. Dinwiddie
In Ballard v. Thomas & Ammon, followed in some of the other cases cited, it is distinctly held that the county court which lays the county levy is not a.special tribunal erected for that special purpose, but a court of general jurisdiction, and that its act in laying the levy cannot be questioned in any collateral proceedings. In this case Judge Joynes, at page 22, in support of his opinion says: “For while in the assessment of the tax the county court exercised power which does not come within the ordinary scope of judicial’ power, in the adjudication of the debts chargeable upon the county, on which rests the right of the creditor to proceed against the sheriff and his securities, the court exercises a power which is purely judicial in its nature, though it is .not exercised in the usual form of judicial proceedings. The action of the court, in the exercise of such a power, cannot be questioned in a collateral proceeding.” Pulaski County v. Stuart, Buckhannon & Co., cites the Ballard-Thomas Case, approvingly, differentiating it, and cites and discusses numerous other cases, state and federal, supporting the opinion. The jurisdiction of the county court to lay and disburse county levies, is given by the constitution. Art. 8, section 24. True this article of the constitution says, “under such regulations as may be prescribed by láw.” Nevertheless such levy is made in the exercise of a general jurisdiction conferred by the constitution and the statutes made in pursuance thereof. Section 29, chapter 39, Code 1906.
But does the fact that this special bridge levy was laid pursuant to section 2, chapter 9, Acts 1908, as amended by chapter 66, Acts 1909, and under the rules, regulations and limitations prescribed thereby, effect its character as a judicial act? Said chapter 9, Acts 1908, according to its title was “An act to regulate the rate and manner of laying levies for taxation in counties, magisterial and school and independent school districts, and municipal corporations, and to provide penalties for the illegal expenditure of public moneys, incurring of illegal obligations and the laying of illegal levies by any tax-levying body,
The third proviso of section 2, of the Act of 1908, which covers the controversy here is as follows: “Provided, third, that the county court of any county having no debt, bonded or funded or otherwise, and which does not lay a levy exceeding that prescribed in the first proviso of this section, may in the year nineteen hundred and eight lay a levy not exceeding ten cents on each one hundred dollars of valuation of the taxable property of the county, to be called special bridge levy, for the purpose of building bridges; and such levy may be continued for four successive years after said year of nineteen hundred and eight. The fund arising from such levy shall be used for the purpose herein designated, and no other.” As amended by the Act of 1909, “twenty cents” was inserted in place of “ten cents”; and “nineteen hundred and eight” was changed to “nineteen hundred and nine,” thereby raising the rate for such levy from ten to twenty cents, and extending the time for beginning and continuing the levy one year. The act of 1909 added the following to said proviso: “And said special bridge levy can not be laid in the year one thousand nine hundred and nine, if seventy-five per cent, of the special bridge levy for the year one thousand nine hundred and eight, has not been expended during the year one thousand nine hundred and eight for the purposes of building new bridges.” The point is made that petitioner laid no special bridge levy in 1908, pursuant to the Act of 1908 and none in 1909, pursuant to the amendment 'of that year, and not having begun to levy for that purpose in either of those years it was not lawful for it to begin in 1910, and continue thereafter to lay'such levy and that the court was therefore wholly without jurisdiction in the premises, and its act in laying said levy in 1910 wholly void, deny
While the general rule is, as argued by counsel, to construe acts conferring power of taxation 'with strictness, 2 Lewis’ Sutherland Statutory Construction, pp. ’ 1008-9-10; State ex rel. v. County Court, 60 W. Va. 339, 348, yet the court should not construe an act so strictly as to defeat its manifest purposes and intent. According to the text writer just cited, Yol. 2, section 518, all that this rule requires is that the statute “be confined to such subjects or applications as are obviously within its terms and purposes.”
What then was the manifest purpose or intent of these enactments? Was it to limit the right of levy to these counties alone, that might in the year 1908, or in 1909, be in a condition to lay such special bridge levy in the one or the other of those particular years; or was it to confer the right on all, within the period prescribed, to thus provide for necessary bridges? We think the acts clearly manifest the latter intention. It is argued that the amendment of 1909 manifests a contrary intention, by changing the year for beginning such levy, and denying the right to lay such levy in 1909, if seventy-five per cent, of the levy for 1908 had not been expended during that year. This provision was evidently intended to cover a condition then existing in some counties where levies had been made in 1908, the money collected and not devoted to the purposes for which it was levied; and that the change in the year was intended to lengthen out the period within which such levies might be begun and continued. While the statute deprived counties of the right to levy for 1909 if they had levied and not expended the money as prescribed, it does not say they may not lay Such levy in 1910, or in any subsequent year, if not otherwise disqualified by the limitation imposed. It seems clear to us that the purpose of this statute was, in view of the changes made in the general law which were thereafter to apply, the legislature intended to give to all the counties a limited time within which to make provisions for bridges by
The existence of the essential facts entitling the county court to do so were necessarily involved and decided by the court in favor of the right to make said levy when it determined to lay the same. The court necessarily decided that it had no debt, bonded or funded or otherwise, denying to it authority to impose the bridge tax, and in our opinion this judgment, upon the principles of the eases cited, can not be impeached collaterally.
But suppose its judgment be wrong, how may it be corrected by a taxpayer or by the State Tax Commissioner ? Section 31 of the same chapter provides that upon the petition to the circuit court of not less than twenty-four persons interested in reversing the same, the order for any such levy may be superseded, and if upon the hearing of such petition the court be of opinion that the order is contrary to law, it may reverse the same. And the county court may without waiting for a decision on such writ of swpersedeas, rescind its order, and order a levy according to law; and if the decision of the circuit court be that such levy is eontrary to law, the court may in like manner order a levy according to law.
But if twenty-four persons interested therein are not found to take such proceeding how may the individual taxpayer be protected against an unlawful tax? It has been held that said section 31, chapter 39 of the Code, does not by its terms take away equity jurisdiction to enjoin an illegal tax, if grounds of equity jurisdiction, other than the mere illegality of the tax exist, as multiplicity of suits, etc., but is merely cumulative of other remedies. Railway Co. v. Miller, 19 W. Va. 408; Wells v. Board of Education, 20 W. Va. 157; Williams v. County Court, 26 W. Va. 488; Winifrede Coal Co. v. Board of Education, 47 W. Va. 132; Copper Co. v. Scherr, Auditor, 50 W. Va. 533, 538. And when a taxpayer cannot avail himself of the remedy by injunction, to restrain the collection of
But has the State Tax Commissioner, in the exercise of his official functions any remedy? We answer, yes, but not the one undertaken in this case. He may by proper process in the courts enforce the performance by inferior officers of their duties in the premises; but in a case like this, can it be that by mere instructions to an assessor he can anticipate the judgment of a court of- competent jurisdiction thereon, and set aside and disregard an order of the county court? We think not. It has been held that mandamus may be employed by the State Tax Commissioner in such cases. State ex rel. v. Graybeal, 60 W. Va. 357; State ex rel. v. County Court Id. 339; Dillon v. Bare and Carter, Id. 483. We think this his only and proper remedy in cases like the one ire have here.
Our opinion therefore is that the mandatory writ was properly awarded in this case.
Concurrence Opinion
(concurring) :
I concur in the conclusion that it was proper to grant the peremptory writ, because the relator has shown a clear legal right to it, and for no other reason. A majority of us are of the opinion that the statute gives the county court the right to lay a special bridge levy in 1910, notwithstanding it did not lay such levy in either the year 1908, or 1909. This is sufficient reason for issuing the writ. But the opinion decides other questions which I do not think we are called upon to decide, and to the correctness' of which I can not assent. These questions are of vital importance concerning the powers, rights and duties of state tar commissioner. In creating this highly important office, I think it was clearly the purpose of the legis--lature to make it the chief head of the entire system for the as
In the present case the court acted under a statute which cre-
Section 2, chapter 29, Code 1906, reads in part as follows: “It shall be the duty of the state tax commissioner to see that the laws concerning the assessment and collection of all taxes and levies, whether of the state or of any county, district or municipal corporation thereof, are faithfully enforced.” This makes it his duty to decide, in the first instance, whether the statute creating the special bridge levy authorized such levy in 1910, when no levy therefor'had been made in 1908, or 1909. State v. Buchanan, 24 W. Va. 362. It was. a troublesome question to decide; this Court itself is divided on the propér interpretation of the statute. But he decided that the county court could not lay a bridge levy in 1910, when no such levy had been made in the preceding year; and he so advised the county court. It disregarded his advice; he then instructed the assessor, his subordinate officer, not to extend the levy. According to the law of the Buchanan Case, supra, he acted in the line of his duty. It was also held in that case that it was the duty of the assessor to obey the instructions of the auditor. He then occupied a similar relation to the auditor that he now occupies to the state tax commissioner. Hnder these conditions what was the assessor to do ? . I think he was justified in: obeying his superior officer. He did so, and it did not, therefore, become necessary for the state tax commissioner to apply to the
It is a fundamental law, in relation to the writ of mandamus, that it is not a writ of right, but is discretionary with the courts, and that before the peremptory writ will issue, the party applying therefor must show a clear legal right to it. Merrill on Mandamus, section 291; 26 Cyc. 143; Milliner's Adm'r v. Harrison, 33 Grat. 422; State v. County Court, 47 W. Va. 672 (35 S. E. 955); 2 Patton & Heath 38; State v. Buchanan, 24 W. Va. 362 (Syl. point 9). The question of importance then is, not what defense can, or can not, be made, but rather has relator made out a clear case, entitling him to the writ? So that, if it had appeared to us that the levy which the county court Avas seeking to have extended was void, it would have been our duty to deny the writ, regardless of matters alleged in the answer of respondent.
People ex rel. Wood v. Assessor, 137 N. Y. 201, is a case in point. The court of appeals of New York refused the writ, and in-its opinion, at page 204, says: “The writ will be granted to prevent a failure of justice, but never to promote manifest injustice. It is a remedial process and may be issued to remedy a wrong,- not to promote one, to compel the discharge of a duty which ought to be performed, but not to compel the performance of an act which will work a public and private mischief, or to compel a compliance with the strict letter of the law, in disregard of its spirit or in aid of a palpable fraud.” See also, The Board of Supervisors of Cheboygan County v. Supervisor of Mentor Township et als., 94 Mich. 386, another case directly in point. In that case, Grant, Judge, who wrote the majority opinion, says, at page 388: “It would', in my judgment, be a reproach upon the law if courts were.,, under the circumstances, of this case, compelled to issue the. writ of
The fact that other- remedies are open to the taxpayer by which he may resist an unlawful tax is nO reason for denying to the state tax commissioner the right to secure the observance of law on the part of the tax levying bodies through the medium of advice and instructions to the assessors. Why compel him, in every case of an unlawful levy, to resort to mandamus? The remedy is open to both the state tax commissioner and the county court, and the legality of a disputed levy can be as quickly determined whether the writ be sued out by one, or the other. Why then minimize the importance of the state tax commissioner’s office by deciding that lie can not advise his assessor to refuse to extend a void levy, and that he must proceed by mandamus? This would give him no more authority than any taxpayer would have; and would defeat the purpose of the legislature, which was to make that office a supervisory office over all tax levying bodies in the state, and over the assessors and tax collectors. I think the assessor, in this instance, had a right to plead the instruction given him by the state tax commissioner, in justification of his refusal to extend the special bridge levy, but that this defense can not avail, because it manifestly appears that the bridge levy is legal.
Writ Awarded.
Concurrence Opinion
concur in the award of the writ upon the ground that the assessor must perform the mere ministerial duty of extending the levy and cannot attack the legality of the levy by refusing to extend it. So far as the syllabus and opinion go beyond this, they do not concur. On the question of .the legality of the tax levy, and all other matters discussed, they would express no opinion. Decision upon the one ground excludes consideration of the other.