141 S.E. 874 | W. Va. | 1928
Upon this mandamus proceeding, petitioners who are residents and tax payers of Duval Magisterial District of Lincoln County, seek to compel the county court of Lincoln County, to assign, transfer, and set over to the district road bond fund certain sums of money claimed by them to have been illegally taken from the road bond fund, out of county funds from which said sums should have been paid. The contention is that the county court has expended sums of money out of the road bond fund, which were payable from other funds, and it is now sought to compel it to reimburse the bond fund out of the other funds which, in the first place, should have borne the expenditures. The voters of Duval district authorized the issuance of bonds in the sum of $100,000.00 for improvement of four roads therein, naming them and allocating to the main road $60,000.00, to two others $15,000.00 each, and to another $10,000.00. The county court improved and completed the roads by expending thereon the bond money supplemented by about $8,000.00 from the county road levy. It has exhausted the road bond fund, and also the county and district road levy funds. Relators say, however, that the county court has illegally expended out of the road bond money $11,298.53 for rights of way for the four roads; $564.08 for repairs to, and oil and gas for, an automobile used by the engineers on the projects; $4,194.44 for salaries of the two engineers employed thereon, and $6,018.39 for a bridge on one of the roads. They also say that on three of the roads about $13,000.00 more money was spent than was allocated to those roads respectively. They ask that the road bond fund be reimbursed out of the proper county funds. The county court in its return seeks to justify the expenditures made by it of the bond funds, giving in full detail the expenditures on each road, and the necessities therefor; and avers that each expenditure was proper and authorized under sec. 31, chap.
A court will not issue mandamus to compel a respondent to do an illegal or wrongful act in contravention of public policy. 18 R. C. L. 142, sec. 58. "It has been held although an officer whose action is sought to be coerced may have put it out of his power to perform his duty, and may be liable in damages therefor, still where he cannot perform the act, and this is clear to the court, the peremptory writ will not ordinarily be issued against him." 18 R. C. L. 139, sec. 54. Mandamus is not a writ of right but may be issued or withheld in the sound discretion of the court. The writ will not issue if the court can see that it will operate to the detriment rather than to the benefit of the general public, or cause great disorder and confusion in the fiscal affairs and duties of the officers of a public corporation. Board of Excise v. School District,
It might be well to state that public officers and bodies, in the preparation of bond issues and the expenditures of popular grants of money derived therefrom, should with scrupulous care acquaint the electorate with full information both before and after the bond issue concerning its expenditure and the purposes for which it is used. Relators would have been in a better position to obtain judicial determination of the questions raised on the merits of this controversy if the money had not been expended and the debt to the bond fund had not been incurred, or if there had been funds legally at the disposal of the county court with which the bond fund could have been reimbursed.
The writ will be denied.
Writ denied.