Board of Education of Ellsworth Dist. v. Tyler County Court

• Decision Date: 01 February 1916
• Docket Number: 2910.
• Citation: 87 S.E. 870,77 W.Va. 523
• Parties: BOARD OF EDUCATION OF ELLSWORTH DIST. v. TYLER COUNTY COURT.
• Court: West Virginia Supreme Court

87 S.E. 870

77 W.Va. 523

BOARD OF EDUCATION OF ELLSWORTH DIST. v. TYLER COUNTY COURT.

No. 2910.

Supreme Court of Appeals of West Virginia.

February 1, 1916

Submitted January 25, 1916.

Syllabus by the Court.

Ordinarily where there is a conflict between two parts of a single act the one latest in position will be declared to be the law, as being the latest expression of the legislative will, and this rule is applicable to conflicting sections in the revision of a statute.

And where two distinct statutes stand in pari materia, and sections thereof are in irreconcilable conflict, that section must prevail which can properly be considered as the last expression of the law making power, this without regard to the relative position of such sections in the Code.

Generally where a later law is merely a re-enactment of the former it will not be regarded as repealing the intermediate act, which qualified and limited it, but the intermediate act will be deemed to remain in force qualifying or modifying the new act as it did the first.

But an exception to the general rule lastly stated is that when the intermediate act and the new or re-enacted law are in irreconcilable conflict, the latter will prevail over the intermediate act, under the general rules above stated, as being the last expression of the legislative intent.

Applying the foregoing principles, section 60, of chapter 54, serial section 2966, Code 1913, as amended by chapter 36, Acts 1911 relating to the application of dividends on stock or interest on bonds owned by a magisterial district, repealed by implication section 24, chapter 39, serial section 1564, of the Code, so far as in conflict therewith.

Error to Circuit Court, Tyler County.

Action by the Board of Education of Ellsworth District against the County Court of Tyler County. Judgment for defendant, and plaintiff brings error. Affirmed.

Boreman & Carter, T. P. Hill, and C. B. Riggle, all of Middlebourne, for plaintiff in error.

O. B Conaway and Geo. L. Rose, both of Middlebourne, for defendant in error.

MILLER J.

By mandamus the Board of Education of Ellsworth District, Tyler County, would have us require the county court of said county forthwith to pay over or cause to be credited to the free school fund of said district, the sum of $9,042.00, alleged in the writ and admitted in defendant's return thereto as well as in the agreed statement of facts submitted, to have been collected from the Clarksburg Northern Railroad Company, for interest for the years 1912, 1913, and 1914, on $125,000.00 of coupon bonds of said railroad company. These bonds are not the property of the board of education, but of the magisterial district of Ellsworth, and were acquired by said magisterial district, or by the county court on its behalf, by exchange for its bonds or bonds issued on its behalf, to said railroad company to aid it in the constructing of its railroad, pursuant to the provisions of chapter 54, Code of West Virginia.

Plaintiff predicates its right to this relief upon the provision of section 24, chapter 39, serial section 1564, Code 1913, relating to subscriptions to the stock or bonds of railroads or other works of internal improvement, etc., and containing among others the following provision:

"The dividend of such stock or interest on such bonds, shall be collected as the court may order, and be paid into the county treasury; or be paid and credited to the free school fund of the district or districts, where the subscription to stock or bonds is made by a district or districts."

Instead of disposing of the interest money collected according to the requirements of said section 24, it is alleged, admitted and stipulated in the agreed statement of facts, that respondent appropriated $4,342.00 thereof, in payment of the interest on the bonds of said Ellsworth District, so issued to said railroad company, and that the residue thereof, to-wit, $4,700.00, was transferred by it to the credit of the sinking fund, now amounting to $11,000.00, created to meet the principal of said bonds at maturity, and deposited with the Bank of Middlebourne.

To justify this appropriation of the interest so collected on the bonds of the railroad company, respondent pleads and relies upon section 60, chapter 54, serial section, 2966, Code 1913, and particularly the provision thereof italicized, as follows:

"The right to the stock or bonds of such company so subscribed for shall vest in such county, district, city, town or village making the same, and the county court of the county, or council of the city, town, or village, shall from time to time, as may be necessary, appoint proxies to represent the stock held by such county, district, city, town or village, in the meetings of the stockholders of the company, and also an agent to collect the dividend on such stock, or interest on such bonds; which dividend or interest when collected, shall be applied annually in diminution of the county, district, city, town or village levy."

It is plainly manifest that the provision italicized is wholly inconsistent with and repugnant to the provision of section 24, of chapter 39, of the Code, and that the two cannot stand together. If this interest money be credited to the free school fund of the district, it would be subject to disposal by the board of education, a distinct corporate body, and for other and different purposes than those prescribed by said section 60, of chapter 54. If disposed of by the county court, according to the provisions of said section 60, the money would go in reduction or diminution of the district levy, that is such levy for district purposes as the county court is authorized by law to make, as a levy for district roads or some special levy to pay the interest and principal of some debt created on behalf of the district.

It is agreed that respondent for each of the years covered by said interest collections and as provided by section 59, of said chapter 54 (sec. 2965), levied and collected from the people of said district on each one hundred dollars of the taxable value of the property therein, to pay the interest on the bonds of said district and to create a sinking fund to pay the principal thereof, as follows: For the year 1912, for interest, sixteen cents, and for sinking fund, eleven cents; for the year 1913, for interest, eleven cents, and for sinking fund, eleven cents; for the year 1914, for interest, thirteen cents, and for sinking fund, eleven cents. Whether the sums so levied and collected were sufficient for those purposes, does not clearly appear; but it does appear from the agreed facts that of the total amount of interest collected from the railroad company, $4,342.00 was applied to payment of interest accrued on the bonds of said district, and that the residue thereof was carried to the credit of the sinking fund. If the interest so collected from the railroad company was actually applied by respondent in diminution of the levy for interest on the bonds of the district and to the credit of the sinking fund created to pay the principal, and said section 60, of chapter 54, governs, then there was no misappropriation of said funds by respondent, and the statute was substantially, if not literally, complied with.

But whether there was compliance with this statute, or whether without such diminution in the levies sufficient sums were levied and collected each year to meet and pay the full amount of interest and the amount due the sinking fund, are questions not presented for decision. The question we have to decide is whether section 24, of chapter 39, or said section 60, of chapter 54, controls the disposition of this case, for as we have seen they are wholly inconsistent, and both cannot be given effect.

The legislative history of these conflicting sections will, we think, enable us to dispose of the case upon correct legal principles. Respecting the provision of section 24, chapter 39, we find that section 9, chapter 78, Acts of 1863, passed October 21, 1863, relating to the powers and duties of the several counties of the state, provides that:

"The dividends on such stock * * * shall be paid into the county treasury, and be exclusively applied to the payment of the debts or the diminution of the annual levy thereof."

This provision seems to have been taken from section 51, chapter 61, of the Code of Virginia, 1860, relating to works of internal improvement, and subscriptions by counties to such works, saying:

"Which dividends, when collected, the said court shall annually apply to the diminution of the levy in such county."

There seems to have been no corresponding provision in Virginia in the chapter relating to county courts. The provision of the act of October 21, 1863, appears in section 41, of chapter 39, of our Code of 1868, but in this form:

"The dividends on such stock shall be collected as the said supervisors may order, and paid into the county treasury."

No corresponding provision is found in chapter 54, of the Code of 1868, which contains but thirty sections in all.

The conflict between section 24, of chapter 39, and section 60 of chapter 54, of the present Code, seems to have had its incipiency in two acts of the legislature of 1872-73, the first being chapter 88 thereof, approved April 3, 1873, entitled "An Act to provide for the incorporation of associations that may be organized for the purpose of constructing railroads, maintaining and operating the same," etc.; the other being chapter 114, of said acts, entitled "An Act amending and re-enacting certain sections of chapter thirty-nine of the code concerning boards of supervisors, so as to confer upon county courts or other tribunals the administration of county affairs." One of the...