Lynch, Judge:
By proper writ, the circuit court commanded T. J. Davis, sheriff, to receive, in payment of taxes assessed against the relator, the White Oak Fuel Company, for the year 1913, orders issued by the county court and drawn on the levies of former years. The orders, five in number, bear date August 24, 1910; May 31, 1911; August 29 and October 22, 1912. With one exception, they were issued early in the tax years. Two were drawn on the levies of 1910, the others on the levies of 1912; one on the county poor fund, four on the road fund of Fayetteville district; and all of them were promptly presented for payment to the former sheriff, and by him endorsed “no funds”. Davis, whose term as sheriff began January 1, 1913', declined to accept the orders, when presented to him in payment of taxes on November 26, 1913;. because, as he claims, they were drawn on resources from which he had received a sum insufficient to pay the orders owned by the relator, and which, save $300, he had previously applied in discharge of other orders drawn thereon.
[263] This statement clearly brings the case within the principles announced in State ex rel. v. Melton, 62 W. Va. 253; unless, as it is claimed, ch. 63, acts 1907 (§29, ch. 39, Code) and §9, ch. 9, acts 1908 (§9, ch. 28A, Code), subsequently enacted, forbid application of- the levies of 1913 to payment of orders drawn on and payable out of revenues of other'years. It is argued that the chapter and section cited were expressly enacted to avoid the effect of the holding in that case, and thereby to forbid application of the levies of one year to liquidation of indebtedness previously contracted by the county court. But nowhere do counsel direct attention to any definite or express provision thereon; or any other provision, before or since enacted, warranting the inference of any intention to evade the effect of the holding in the Melton ease, or to modify the mandate of §16, ch. 41, Code, whereby a sheriff is expressly required to receive, in payment of “taxes, county and district levies, militia fines and officers’ fees, any county or school order or draft”, then due and payable, and drawn on him pursuant to law, if the person offering the same is then entitled thereto.
It is conceded that all the orders owned by the relator were lawfully drawn, implying of course, as the fact is, that the county court had by levies provided a fund amply sufficient for payment of all orders drawn or that could lawfully be drawn papable out of the levies of those years.
The chapter cited, as does also chapter 28A, prescribes the procedure to be observed by all levying tribunals. Their provisions are explicit, and essentially mandatory. The concession that the relator’s orders were lawfully drawn carries with it the implication that the county court, before laying the levies in 1910 and 1912, had performed all the duties thus prescribed. Besides, the record shows nothing to the contrary.
By §9, ch. 9, acts 1908, the county court can not lawfully expended any money or incur any indebtedness not expressly authorized, nor make any contract “tihe performance of which in whole or in part will involve the expenditure of money in excess of funds legally at the disposal of such tribunal, issue or authorize to be issued any certificate, order or other evidence of indebtedness which can not be paid out of [264] the levy for the current year or out of the fund against which it is issued”. It declares that members of the levying bodies who violate any of the provisions of the chapter shall be liable in damages to any person prejudiced thereby, and also guilty of a misdemeanor and upon conviction punished by fine and imprisonment, in addition to forfeiture of office.
When condensed, section 8 of the same chapter, cited in argument but for what purpose is not obvious, authorizes a special debt levy not exceeding ten cents on each one hundred dollars valuation of the taxable property of the county or district according to its last assessment, for as many years as may be necessary to pay off any indebtedness incurred prior to January 1, 1908; and provides that, for this purpose, the fund so raised shall be kept separate from other levies, and applied in the order of their dates to the liquidation of such indebtedness. “If after paying off such debts, or effecting the object of said additional levy or of said special levy, any balance remains of any such funds, the same shall” be disposed of as provided therein.
None of these provisions prescribe penalties against any person other than members of the levying tribunals. Their manifest object was to protect the subdivisions thus represented against an indebtedness created from year to year in excess of the resources to be derived from each annual levy. They do not contain any provisions prescribing the duties of the sheriff, or imposing any penalties upon him, or forbid compliance by him with the express provisions of the section requiring acceptance of county orders in payment of taxes. His conduct is still regulated by the statutes in force when the Melton case was decided.
In argument .some stress was also laid on §9, ch. 30, Code 1913. Having been passed in 1904, it was also in force when the Melton case was decided. It requires the sheriff to keep separate accounts, in the form prescribed by the state tax commissioner, of all taxes received and disbursed by him for state, county, district and school district purposes, so as to show the total receipts and disbursements up to the close of business on each day, and the balance then due from or to him on account of each fund, a statement of which he shall on the following morning file with the clerk of the county [265] court, who shall post the same immediately in his office until the next like statement is received and posted, when 'the former shall be filed and preserved in his office. But, we repeat, this requirement was in force at the time the Melton case ivas decided, and, indeed, in its essential features, since its enactment in 1904.
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Lynch, Judge:
By proper writ, the circuit court commanded T. J. Davis, sheriff, to receive, in payment of taxes assessed against the relator, the White Oak Fuel Company, for the year 1913, orders issued by the county court and drawn on the levies of former years. The orders, five in number, bear date August 24, 1910; May 31, 1911; August 29 and October 22, 1912. With one exception, they were issued early in the tax years. Two were drawn on the levies of 1910, the others on the levies of 1912; one on the county poor fund, four on the road fund of Fayetteville district; and all of them were promptly presented for payment to the former sheriff, and by him endorsed “no funds”. Davis, whose term as sheriff began January 1, 1913', declined to accept the orders, when presented to him in payment of taxes on November 26, 1913;. because, as he claims, they were drawn on resources from which he had received a sum insufficient to pay the orders owned by the relator, and which, save $300, he had previously applied in discharge of other orders drawn thereon.
[263] This statement clearly brings the case within the principles announced in State ex rel. v. Melton, 62 W. Va. 253; unless, as it is claimed, ch. 63, acts 1907 (§29, ch. 39, Code) and §9, ch. 9, acts 1908 (§9, ch. 28A, Code), subsequently enacted, forbid application of- the levies of 1913 to payment of orders drawn on and payable out of revenues of other'years. It is argued that the chapter and section cited were expressly enacted to avoid the effect of the holding in that case, and thereby to forbid application of the levies of one year to liquidation of indebtedness previously contracted by the county court. But nowhere do counsel direct attention to any definite or express provision thereon; or any other provision, before or since enacted, warranting the inference of any intention to evade the effect of the holding in the Melton ease, or to modify the mandate of §16, ch. 41, Code, whereby a sheriff is expressly required to receive, in payment of “taxes, county and district levies, militia fines and officers’ fees, any county or school order or draft”, then due and payable, and drawn on him pursuant to law, if the person offering the same is then entitled thereto.
It is conceded that all the orders owned by the relator were lawfully drawn, implying of course, as the fact is, that the county court had by levies provided a fund amply sufficient for payment of all orders drawn or that could lawfully be drawn papable out of the levies of those years.
The chapter cited, as does also chapter 28A, prescribes the procedure to be observed by all levying tribunals. Their provisions are explicit, and essentially mandatory. The concession that the relator’s orders were lawfully drawn carries with it the implication that the county court, before laying the levies in 1910 and 1912, had performed all the duties thus prescribed. Besides, the record shows nothing to the contrary.
By §9, ch. 9, acts 1908, the county court can not lawfully expended any money or incur any indebtedness not expressly authorized, nor make any contract “tihe performance of which in whole or in part will involve the expenditure of money in excess of funds legally at the disposal of such tribunal, issue or authorize to be issued any certificate, order or other evidence of indebtedness which can not be paid out of [264] the levy for the current year or out of the fund against which it is issued”. It declares that members of the levying bodies who violate any of the provisions of the chapter shall be liable in damages to any person prejudiced thereby, and also guilty of a misdemeanor and upon conviction punished by fine and imprisonment, in addition to forfeiture of office.
When condensed, section 8 of the same chapter, cited in argument but for what purpose is not obvious, authorizes a special debt levy not exceeding ten cents on each one hundred dollars valuation of the taxable property of the county or district according to its last assessment, for as many years as may be necessary to pay off any indebtedness incurred prior to January 1, 1908; and provides that, for this purpose, the fund so raised shall be kept separate from other levies, and applied in the order of their dates to the liquidation of such indebtedness. “If after paying off such debts, or effecting the object of said additional levy or of said special levy, any balance remains of any such funds, the same shall” be disposed of as provided therein.
None of these provisions prescribe penalties against any person other than members of the levying tribunals. Their manifest object was to protect the subdivisions thus represented against an indebtedness created from year to year in excess of the resources to be derived from each annual levy. They do not contain any provisions prescribing the duties of the sheriff, or imposing any penalties upon him, or forbid compliance by him with the express provisions of the section requiring acceptance of county orders in payment of taxes. His conduct is still regulated by the statutes in force when the Melton case was decided.
In argument .some stress was also laid on §9, ch. 30, Code 1913. Having been passed in 1904, it was also in force when the Melton case was decided. It requires the sheriff to keep separate accounts, in the form prescribed by the state tax commissioner, of all taxes received and disbursed by him for state, county, district and school district purposes, so as to show the total receipts and disbursements up to the close of business on each day, and the balance then due from or to him on account of each fund, a statement of which he shall on the following morning file with the clerk of the county [265] court, who shall post the same immediately in his office until the next like statement is received and posted, when 'the former shall be filed and preserved in his office. But, we repeat, this requirement was in force at the time the Melton case ivas decided, and, indeed, in its essential features, since its enactment in 1904.
But counsel for respondent direct attention to an existing indebtedness against Fayette county in excess of the resources derivable from any rate legally leviable on its taxable property, and the consequent diversion of the levies for 1913 from the purposes for which they were laid if the orders owned by the relator may lawfully be .applied in payment of taxes assessed for that year. But, as this court in the Melton ease elaborately discussed and answered the same argument, based on a similar condition then said to exist in Kanawha county, further discussion is deemed unnecessary. We add only that such condition is so deplorable that any effort to prevent its recurrence recommends itself to favorable consideration. The legislature, no doubt, by the drastic enactments to which we have referred, intended to deter members of levying tribunals from creating any liability, by contract or by orders, in excess of the resources derived from annual levies. But nowhere did it require a sheriff to know, or ascertain by investigation, whether or not any order duly issued and presented for payment by the lawful owner was in excess of levies legally authorized. The county court in this case is the body, legally authorized to lay the levies and draw orders thereon. Wherein it proceeds unlawfully its members are liable in damages to any person injured, and amenable to criminal prosecution. The statutes cited do not prescribe any regulations for the guidance of the sheriff except as to the methods of accounting, or in any degree relax the rigid rule requiring payment of county orders in cash, or, as a cash equivalent, acceptance in lieu of taxes chargeable to the owner. His duties are to collect levies when made, and pay orders when issued by the county court. He is not required, or permitted, to judge of the lawfulness of orders drawn against funds in his hands, or to ascertain whether they are in excess of the levies collectible by him. That duty devolves [266] solely on the levying tribunal. It, and not the sheriff, assumes the risk and liability imposed by the statutes.
Again, it is said the relator has his remedy under the statute. He may, and, it is contended, must, sue the members of the court to recover the amount of the orders. But, as already stated, when issued, there were funds adequate and available to pay all orders then drawn on' the funds against which its orders were also chargeable. The sheriff endorsed them “no funds”. The county court had authorized the levy and issued the orders; the owner had presented them for payment. The statute prescribing punishment was not violated at that time. The county court, the sheriff and the relator had done all that could reasonably be required of them. They could do no more. The levies were not even then collectible, except those of 1910-11, on which the order for the smallest amount was drawn. It is therefore apparent, even without respondent’s concession, that the orders were valid and lawful when issued. If then thus valid and lawful, what has since occurred to render them invalid and unlawful obligations, unenforceable or ineffectual as charges against any levies or resources out of which they were originally payable? Nothing is averred or proved effecting a change from validity to invalidity. If by orders subsequently issued by the county court, and paid by the predecessor of Davis, the fund against which the relator’s valid orders were drawn has been exhausted, the express mandate of the statutory provisions cited was violated when, and not before, that limit was reached. But the sheriff did not, but the county court did, then become amenable to the liability and punishment prescribed by statute. When that condition of invalidity, and consequent liability, arose, the record does not disclose.
While the relator may come within the terms of the statute authorizing any person prejudiced by an over-issue of orders to sue and recover from members of the derelict tribunal, shall he remain remediless if for any reason his action shall prove abortive and thereby fail of relief? Will the county be still permitted to retain the benefit without remunerating him for the loss sustained by the mistake or wilful misconduct of its agents? The legislature surely did not intend enrichment of a county, and consequent impov[267] erishment of any of its citizens, by such wrongful conduct on the part of any levying tribunal, the members of which may financially be unable to respond in damages to the extent of the indebtedness said to exist in Fayette county. If the holder of an order may thus be exposed to loss, he must stand- in an attitude of constant suspense and watchfulness, lest the wreeldess and improvident county organization may, by over-issue, exhaust the fund on which he relies before the sheriff can with the utmost diligence even begin to collect the levies out of which it is to arise.
Nor does the further argument based on failure of the relator to repeat demands for payment operate to defeat, relief in this case. That course might have avoided resort to this writ. But no statute required it to continue from time to time to demand payment; and, if one did so require, there is neither allegation nor proof that relator was not duly persistent in its efforts to obtain payment of its orders. It may therefore be assumed that it did all that sound judgment and business prudence required in order to accomplish that purpose.
Finding no error, we affirm the judgment.