Eureka Pipe Line Co. v. Sheriff

• Citation: 75 W.Va. 353
• Decision Date: 15 December 1914
• Docket Number: No. 2465.,2465.
• Court: Supreme Court of West Virginia
• Parties: Eureka Pipe Line Company v. Riggs Sheriff, etc.

75 W.Va. 353

Eureka Pipe Line Company

v.Riggs Sheriff, etc.

No. 2465

Supreme Court of Appeals of West Virginia.

Submitted November 10, 1914.

Decided December 15, 1914.

1. Sheriffs and Constables Failure io Pay County Orders Remedies Mandamus.

The remedy given by section 39, chapter 39, Code 1899, against a sheriff, for failure to pay county orders drawn on him, that remedy not being as competent to afford relief on the very subject-matter, and one equally as convenient, beneficial, and effective, is not exclusive of the remedy by mandamus; it is cumulative only of that common law remedy, (p. 355).

2. Cases Distinguished.

This case distinguished from the cases of Bailiff e v. County Court, 36 W. Va. 202, and Welty v. Cowniy Court, 46 W. Va. 460. (p. 357).

3. Taxation Correction of AssessmenAs--Order of Exoneration Annulment Notice.

An order of exoneration of taxes, and for repayment of taxes paid upon an erroneous assessment, procured by the applicant and drawn on the sheriff, in his favor, pursuant to section 94, chapter 29, Code 1899, cannot be set aside or annulled by the county court, at a subsequent term, without notice or process to such applicant. Such order or rescission is absolutely void and of no effect, (p. 357).

4. Abatement and Revival Mandamus Against Sheriff Enforcement of Order of Exoneration.

A suit in mandamus against a sheriff: by the holder of such order of exoneration, to compel the former to repay him excess of taxes collected, does not abate by the officer's death, resignation, or expiration of his term, if it be shown that, by the fault of the county court, or otherwise, he has failed to pay such order, and at the expiration of his term lie has paid over to his successor the money which he should have paid to relator, and such sura has gone into the treasury to the credit of the county fund, the district fund, and to the boards of education. In such case the suit may be revived, and the incumbent in office cited into court and required to respond to the writ, as upon original process, (p. 358).

5. Same.

The facts in this case call for the proper application of the rule of practice just stated, (p. 358).

(Robinson, Judge, dissenting.)

Error to Circuit Court, Pleasants County.

Mandamus by the Eureka Pipe Line Company against B. P. Riggs, Sheriff, etc., Judgment for defendant, and.plaintiff brings error.

Reversed and remanded, with directions.

A. B. Fleming, Charles Powell, and Kemb'le White, for plaintiff in error.

G. D. Smith, for defendant in error.

Miller, President:

Error to the judgment of the circuit court denying a peremptory writ of mandamus requiring defendant to pay petitioner the amount of two orders of the county court made June 18, 1903, correcting assessments of its property for taxation for the years 1901 and 1902, and exonerating it therefrom, and ordering him to refund to it the excess of taxes paid him for those years, on such erroneous assessments, aggregating $1,450.00.

The proceedings were begun in the court below May 12, 1904, during respondent's term of office, which ended December 31, 1904, but the judgment complained of was not pronounced until the 24th day of April, 1913.

Respondent, by motion to quash, demurrer overruled, and answer, challenged jurisdiction by mandamus, and answered no funds, and pleaded the subsequent order of the county court, made at a subsequent special term of the court, held on August 18, 1903, but without notice or process to petitioner, whereby said court undertook to rescind, annul, and make void said orders of exoneration of June 18, 1903. Issues were joined on the pleas and the case on pleadings and evidence was submitted to the court in lieu of a jury with the result already indicated.

The orders of exoneration were regularly procured and made pursuant to section 94, chapter 29, Code 1899, then in force, and no substantial issue is made or supported by evidence as to the regularity and validity of these orders. Section 96, of the same chapter, provides: "Such order, delivered to the sheriff or other collecting officer, shall restrain him from collecting so much as is erroneously charged and, if the same has already been collected, shall compel him to refund the money, if such officer has not already paid it into the treasury, and in either case, when endorsed by the person exonerated, it shall be a sufficient voucher to entitle the officer to a credit for so much in his settlement with the auditor."

It is fully proven, we think, that after obtaining these orders, and before obtaining the alternative writ, they were duly presented to respondent for payment, and that payment was refused. Nor is there any doubt from the evidence that defendant had funds applicable, then or thereafter, and at the time his term of office expired, to pay same, and moreover, that he declined to accept the same tendered by relator in payment of its taxes for the year 1903. The validity of said order of rescission of August 18, 1903, was challenged by relator for want of jurisdiction in the court to make it, and for want of notice to it, and on other grounds.

The first question we will consider is, treating the orders of exoneration valid and unaffected by the subsequent order of rescission, was there jurisdiction by mandamus, at the time the alternative writ issued and during his incumbency, to compel respondent to respect and pay the same? If valid, section 96, of chapter 29, of the Code, undoubtedly made it the duty of respondent to refund the excess taxes collected, and not paid into the state treasury. The record shows that as to the state and state school taxes, they were refunded by the auditor to relator, on presentation of certified copies of the orders to him, pursuant to section 97, of said chapter. But was petitioner relievable in mandamus?

At common law mandamus was always available to compel performance by public officers of their purely ministerial duties, where no other equally adequate and efficacious remedy was provided by statute. The rule, as now generally stated, briefly, is, that mandamus is not available where another specific and adequate remedy exists. But the other remedy must not only be adequate in the general sense of the term, but it must be specific and appropriate to the circumstances of the particular case, and as will enforce a right or performance of the duty, and such remedy can not be said to be fully adequate unless it reaches the end intended and actually compels performance of the duty in question. And as some of the books put it, the controlling question is not, has the party a remedy at law, but is that remedy fully commensurate with the necessities and rights of the party under all the circumstances of the particular case? 2 Spelling on Inj. and Ex. Rem., section 1375, says: "To supersede the remedy by mandamus the party must not only have a specific remedy, but one competent to afford relief upon the very subject-matter of his application, and one which is equally convenient, beneficial, and effective as the proceeding by mandamus." We have recognized this rule in Dunlevy v. County Court, 47 W. Va. 513, (3 syl.) and Daniel v. Simms, 49 W. Va. 554, 574, and have applied the rule in State ex rel. v. Melton, Sheriff, 62 W. Va. 253, and State ex rel. v. Davis, Sheriff, 74 W. Va. 261, 82 S. E. 207.

Remedy is given in such case against the sheriff and his sureties by action on his bond by section 39, of chapter 39, Code 1899, same as the corresponding section, Code 1913. But is this remedy exclusive or cumulative only of the com-mon law remedy by mandamus? That remedy requires a suit regularly matured at rules, and prosecuted to judgment, and involves the hazards of execution and all the delays incident thereto. It is not as appropriate to the specific duty required, nor is it as speedy, prompt and efficacious as mandamus. In mandamus the remedy of contempt is incident to a violation of the order, and the court is competent thereon to punish disrespect of its order. Mandamus requires but a few days for maturity, and acts directly on the person of the officer, coercing him in the performance of his plain duty. Under the rule just announced, therefore, we do not think the remedy by action on the official bond is a bar to the remedy by mandamus.

In Ratliffe v. County Court, 36 W. Va. 202, and Welty v. County Court, 46 W. Va. 460, it was decided that as the county court had levied therefor, and placed the money in the hands of the sheriff, and issued orders on him to its creditor, it had done all that was required of it, and that mandamus by the creditor would not lie against it to compel another levy; that plaintiff's remedy wras against the sheriff. Those cases, however, are not opposed to the views above expressed on the adequacy of the remedy given by statute in cases like this. We are of opinion, therefore, that relator may properly resort to mandamus, and is not limited to the remedy by action on respondent's official bond.

But remedy by mandamus requires a clear legal right. As we have already intimated the orders of exoneration made by the county court gave that clear right, unless annulled by the subsequent order made at the subsequent special term. What, then, was the effect of that subsequent order, if any, on the relator's right to the exemption? As we have already said, those orders of exoneration were regularly obtained by due proceedings under the statute, and while there is some intimation in the record that undue influence may have been exerted upon members of the court or the officers of the court, rendering the orders fraudulent, there is no plea and no evidence competent to support such a claim, and this court cannot indulge the presumption that fraud, not proven, entered into the action of the court. Those orders having been properly obtained entitled the relator to a refund of the taxes exonerated; they constituted property or property rights, which could not be taken away except by some proper...