Bd. Of Sup'rs Of Amherst County v. Combs

• Decision Date: 15 June 1933
• Citation: 169 S.E. 589
• Parties: BOARD OF SUP'RS OF AMHERST COUNTY. v. COMBS, State Comptroller, et al.
• Court: Virginia Supreme Court

169 S.E. 589

BOARD OF SUP'RS OF AMHERST COUNTY.

v.COMBS, State Comptroller, et al.

Supreme Court of Appeals of Virginia.

June 15, 1933.

Original petition for mandamus by the Board of Supervisors of Amherst County against E. R. Combs, State Comptroller, and the Board of Supervisors of Campbell County, to compel defendants to distribute the tax derived from motor vehicle fuel. On defendants' motion to dismiss the petition.

Mandamus denied.

Argued before CAMPBELL, C. J., and HOLT, EPES, HUDGINS, GREGORY, BROWNING, and CHINN, JJ.

Edward Meeks and W. H. Carter, both of Amherst, for petitioners.

S. V. Kemp, of Lynchburg, and John R. Saunders, Atty. Gen., and Edwin H. Gibson and Collins Denny, Jr., Asst. Attys. Gen., for respondents.

CHINN, Justice.

This is an original petition for a writ of mandamus filed in this court by the board of supervisors of Amherst county against E. R. Combs, state comptroller, and the board of supervisors of Campbell county.

The proceeding is founded upon the provisions of section 4 of an Act of the General Assembly relating to the appropriation and distribution of the revenues derived from the tax levied on motor vehicle fuel (commonly called the "gasoline tax"), approved March 26, 1923 (chapter 107), as amended and re-enacted by chapter 45 of the Acts of 1930.

The pertinent provisions of the last-mentioned act (found on page 42, c. 45, Acts of 1930) read as follows: "Thirty per centum of the revenue derived from the tax levied as aforesaid, is hereby appropriated primarily for the maintenance of the roads and bridges of the several counties of this State, and shall, on and after January first, nineteen hundred and thirty-one; be apportioned and distributed * * * among the several counties in proportion to area as one factor, population as one factor, and the total of all State taxes and all local levies including levies on public service corporations, collected by the county treasurers in their respective counties, during the next preceding fiscal year, as one factor, giving equal consideration to each of the three factors, the factors of area and population to be always determined by the latest United States census; provided, however, that where a city with a population of over one hundred thousand lies partly in two counties, one-half of the population of such city shall be credited to each county; and where two or more cities having a combined population of more than one hundred thousand, lie wholly within one county, such county shall be given credit for only one-half of the combined population of such cities; and where a city with a population of between twenty-five thousand and fifty thousand, lies partly in two counties, one-half of the population of such city shall be credited to each of said counties; and the population of all other cities in the State shall be credited to the counties in which they are located, respectively. * * * No part of the said thirty per centum of such revenue shall be paid to, or received by, the State highway commission. * * *" The petition alleges that the city of Lynchburg has a population of between 25, 000 and 50, 000; that the city lies partly In Amherst county and partly in Campbell county, and, in considering population as a factor in the distribution of the proceeds of the gasoline tax among the counties of the state, Amherst county is, under the provisions of the act, entitled to be credited with one-half of the population of said city; that the state comptroller, however, during the year 1931, had failed to accord Amherst county any credit upon this basis of population, but in making monthly distribution of these revenues had credited Campbell county with the whole of the population of the city of Lynchburg, thereby causing that county to receive during the year 1931 over $6,000 which should have been distributed to Amherst county.

The petition prays that E. R. Combs, state comptroller, and the board of supervisors of Campbell county be made parties, and be required to answer the same; that a peremptory writ of mandamus be issued by this court, directing the defendants "in the future to distribute the tax derived from motor vehicle fuel, in accordance with the said Acts of 1930, page 42, c. 45; that Amherst county be given credit for one-half of the population of the city of Lynchburg as provided for In said acts, and in keeping with all other provisions thereof, and that said Petitionees pay to Amherst county all back pay or arrears in said tax, to which it is entitled had the law been so observed as it should have been, and deduct or credit the future payments to Campbell county until th€ fund is equalized or adjusted upon a legal basis; that the said Comptroller be enjoined, restrained and ordered from paying any further sums to Camp-hell county that would in any way jeopardize the Petitioner's contention herein set up; that the said fund be fully preserved and conserved to protect the contention of the Petitioner; that all sums be paid to Amherst county in arrears, as well as future payments; and that all such other, further and general relief be granted to your Petitioner as the nature of the case may require, or may be meet and proper."

The defendants filed their separate answers, and the board of supervisors of Campbell county filed a motion in writing to dismiss the petition on the ground that mandamus cannot properly issue in this case because, if awarded, neither of the respondents could comply with the writ.

We think the motion should be sustained. As seen, the writ asked for in the petition is that the defendants be directed "in the future to distribute the tax derived from motor vehicle fuel, in accordance with the said Acts of 1930, page 42, c. 45, " and that, in making such distribution, Amherst county be given credit for one-half of the population of the city of Lynchburg.

It should first be noted that the statute upon which the petition is based provides that the proceeds of the gasoline tax thereby appropriated "for the maintenance of the roads and bridges of the several counties of the State" shall be apportioned and distributed monthly among said counties by the comptroller, and gives no authority to the boards of supervisors of said counties to make distribution of such proceeds. Mandamus does not, therefore, lie against the board of supervisors of Campbell county, as prayed for In the petition.

High on Extraordinary Legal Remedies, § 1, says: "The modern writ of mandamus may be defined as a command issuing from a common-law court of competent jurisdiction, in the name of the State or sovereign, directed to some corporation, officer or inferior court, requiring the performance of a particular duty therein specified, which duty results from the official station of the party to whom the writ is directed, or from operation of law." And to warrant the issuance of the writ it must appear that it is within the power of the defendant, as well as his duty, to do the act in question. 2 Spelling on Extraordinary Relief, § 1369; High on Extraordinary Legal Rem. § 9; Tyler v. Taylor, Auditor, 29 Grat. (70 Va.) 765.

At the time of the passage of the aforesaid act of 1930, the public roads of the state receiving appropriations from the state treasury were segregated by law into two general systems or classes, commonly and respectively known as state highways and county or "state-aid" roads. State highways were placed under the exclusive jurisdiction and' control of the state highway commission, while county roads were, generally speaking, under the supervision and control of the boards of supervisors of their respective counties, who alone had authority to expend the funds appropriated by said act for the maintenance of the roads and bridges of said counties.

By an Act approved March 31, 1932, however (Acts 1932, p. 872, c. 415), the General Assembly abolished the county road system and created "the secondary system of State highways" (section 1) consisting of all the public roads, bridges, etc., in the several counties, not included in the state highway system; providing that from and after July 1, 1932, the control, supervision, management, and jurisdiction over said secondary system should be vested.in the state department of highways, and the maintenance and improvement, including construction and reconstruction thereof, "shall be by the State under the supervision of the State highway commissioner."

The act further provides (section 4) that "From and after July first, nineteen hundred and thirty-two, the amount on hand from, and the proceeds of, the motor vehicle fuel

tax available for apportionment among the several counties of the State under the law with reference to the levy, collection and expenditure of motor vehicle fuel taxes, shall be set...