County Court v. Brammer

69 S.E. 450, 68 W. Va. 25, 1910 W. Va. LEXIS 81

• Court: West Virginia Supreme Court
• Decided: October 13, 1910
• Status: Published

Opinions

Milled, Judge:

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.

Defendant, in his return to the alternative writ, admits the • lawfulness of all of said levies except said special bridge levy; admits his duty, as assessor, to extend the same; denies that he has ever refused to do so; but on the contrary is proceeding therewith, and will so continue until the work is fully completed.

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 .to which, it applies, and is considered to be an ordinary action at law, and prosecuted in all respects as an ordinary action.” Merrill on Mandamus, section 62. And it will not be denied where, as in this case, the illegality of the levy involved has not been- judicially determined, and it does not manifestly-appear that the levy is illegal. State v. Buchanan, supra, 384. True this Court, in Payne v. Staunton, 55 W. Va. 262 (Syl. pt. 4), raised the quaere, 'whether a ministerial officer can refuse to perform an act required by an unconstitutional statute, before it has been judicially declared invalid, and at page 207/ Judge Beannon gives expression to the opinion that such ministerial officer may urge as a defense in mandamus the unconstitutionality of an act, and cites some cases which seem to support that proposition; but we have not such a case before us for decision.

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 County v. Stuart, Buckhannon & Co., 28 Grat. 526; Pulaski County v. Stuart, Buckhannon & Co., Id. 872; Ballard v. Thomas & Ammon, 19 Grat. 14; Shelton v. Jones, 26 Grat. 898; Cook, Sheriff v. Hays, 9 Grat. 142; Chesterfield County v. Hall, 80 Va. 321.

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, and for tbe distribution of a portion of the school fund.” We see nothing in. these acts affecting the general nature of a levy-made by a county court. While they do impose certain limitations upon its powers pf taxation, and make its right to lay a special bridge levy depend on the existence of certain facts, yet in making such a levy it does so in the exercise of its general jurisdiction, conferred by general law, and not in the exercise of special authority conferred by special statute, where nothing is 'presumed, but every fact essential to confer jurisdiction must affirmatively appear.

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, denying it the right te mandamus. Having concluded. that the order of the county court is not open to collateral attack, two members of the court are of the opinion that we should not decide this question; but a majority think otherwise. Those of us who are of this opinion are compelled to negative the proposition.

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 these special levies. This construction is not inconsistent with the letter or spirit of the statutes, and it seems to us gives to the law the general-'application which a general law should •have. Any other construction would be unreasonable, and be so inconsistent with the object .and purposes of the law that it should not prevail.

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 an illegal tax, lie may in an action at law, sue to recover back the. amount paid.

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.