Hawkins v. Bare & Carter.

• Decision Date: 28 January 1908
• Citation: 63 W.Va. 431
• Court: West Virginia Supreme Court
• Parties: Hawkins v. Bare & Carter.

63 W.Va. 431

Hawkins

v.Bare & Carter.

Supreme Court of Appeals of West Virginia.

Submitted January 14, 1908.

Decided January 28, 1908.

1. Mandamus When Writ Granted.

The extraordinary writ of mandamus will never be issued in any case wdiere it is unnecessary, or where, if used, it would prove unavailing, fruitless or nugatory. The court will not compel the doing of a vain thing. A mere abstract right, unattended by any substantial benefit to the party asking mandamus, will not be enforced by the writ. (p. 433.)

2. Statutes Construction Substitute.

A special statutory provision in one chapter of a code, substantially withdrawing, from the operation of another chapter, one of the subjects thereof, and making specific and comprehensive regulations respecting the same, apparently complete so far as they go, and radically different from those of the general provisions by which the subject had been previously governed, except such subject from the operation of the general statute to the extent to which it is governed by the special provision, and is pro tanto a substitute for the general statute formerly governing the subject matter, (pp. 433, 434.)

3. Taxation Collection Compensation of Officers.

Section 53 of chapter 29 of the Code of 1906, making provision for commission to assessors and sheriffs for collection of capita- tion taxes, is the full and complete expression of the legislative will on that subject, and sheriffs are not entitled to an additional commission on such taxes, under the provisions of chapter 30 of the Code, relating to compensation for collection of taxes, (p. 434.)

Error to Circuit Court, Fayette County.

Application of E. B. Hawkins for writ of mandamus against B. E. Bare, assessor of the First district, and for writ of mandamus against S. T. Carter, assessor of the Second district. From judgments granting the writs, defendants bring error.

Reversed and Writs Quashed. Dillon & Nuckolls, for plaintiffs in error.

poffenbarger, president:

On the 23rd day of September, 1907, the circuit court of Fayette county rendered judgments, awarding peremptory writs of mandamus, against S. T. Carter and B. E. Bare, assessors of said county, upon the application of E. B. Hawkins, the sheriff thereof, requiring them to pay to him the capitation taxes collected by them, respectively, in their districts, prior to the 22nd day of May, 1907, less the commission allowed them thereon. The facts stated in the alternative writs were not controverted and the defendants, relying solely upon the law applicable to the facts, demurred to the alternative writs and made no other defense.

Construing the statute upon which the demands asserted against the assessors are predicated as not vesting in the sheriff any personal pecuniary interest in the taxes involved, but only a dry, technical, fruitless legal right to receive the same and pay them into the treasury of the state, without deduction for commission or other charge, enuring to his personal benefit, the attorneys for the plaintiffs in error protest that the writs of mandamus cannot be invoked or had for such purpose. If the. sheriff has no beneficial personal interest, in respect to the taxes, and his custody or possession thereof is not necessary to protect him from liability in respect to the same, so that the awarding of the writ would not be in any sense beneficial to him, the court would not lend its process for the gratification of a mere whim or the settlement of a legal technicality. "The extraordinary writ of mandamus will never be issued in any case where it is unnecessary, or where, if used, it would prove unavailing, fruitless and nugatory. The court will not compel the doing of a vain thing. A mere abstract right, unattended by any substantial benefit to the party asking mandamus, will not be enforced by the writ." Hall v. Staunton, 55 W. Va. 684. Abundant authority to sustain this proposition, in the form of decisions of other courts, is cited in the opinion in that case, and wTe content ourselves with a reference thereto.

Whether any duty rested upon the sheriff respecting the taxes in question or the possession thereof would confer upon him any pecuniary advantage or benefit, depends upon the interpretation of certain statutory provisions. Prior to the new tax legislation, beginning at the special session of the legislature, held in 1904, capitation taxes for state school purposes were collected by the sheriffs of the several counties. A new provision, respecting the collection thereof; was inserted in chapter 35 of the Acts of 1905, amending and re-enacting chapter 29 of the Code. By this act, that chapter was greatly changed. As changed, section 53 made it the duty of the assessors to collect the capitation taxes for state purposes as far as possible, between the first day of April and the levy terms of the county courts, which were held in July of each year, and pay the same over to the sheriffs at the end of each month as so collected, "less commission of ten per cent to which the assessors" were declared to "be entitled for collection." At the levy term, they were required to make reports to the county courts of their collections, showing the names of all persons from whom collections had been made and the names of all persons from whom collections had not been made, and thereafter they were inhibited from further collections for that year, and the sheriffs were required to collect all the delinquent capitations so reported, as well as any others which they might discover. By an act passed by the legislature on the 22nd day of February, 1907, which took effect ninety days thereafter, namely, May 22, 1907, this provision was changed so far only, as regards capitations for state school purposes, as to require the assessors, not later than the 15th clay of each month, to turn over to the auditor of the state all capitations collected by them during the previous month and not paid over. This act took effect before the alternative writs of mandamus were sued out in these cases. These assessors, under instructions from the state tax commissioner and the auditor, refrained from making any payments of capitation taxes to the sheriff in the months of April and May, with the view to paying them directly to the auditor as soon as the new act should come into effect. After it did come into effect, it not only authorized, but justified, payment to the auditor of taxes previously collected, for such payment placed the money in the hands of an officer of the state who was entitled to receive the same, namely, the auditor. Section 32 of chapter 30 of the Code of 1906. By paying to the auditor, the assessors did just what the sheriff would have been bound to do, had payment been made to him. The money belonged to the state, and, after collection, it was competent for the legislature to determine, at any time, who should have the custody thereof for and on behalf of the same. It is not apparent that any duty rested upon the sheriff to compel payment of the capitation taxes to him by the assessors. Provision for such assessment had originally been made in section 53 of chapter 4 of the Acts of 1904, and bond had been required of the assessors in penalties, to be fixed by the county courts, of not less than four thousand nor more than twenty thousand dollars, conditioned for the faithful performance of duty under the act, and section 32 of chapter 30, as amended by the Acts of 1904, had conferred upon the auditor of the state power to proceed against the assessors for the collection of any money clue the state. The act did not expressly confer upon the sheriff power to sue the assessor. It made it the duty of the assessor to pay to him, and the auditor had power to institute proceedings for the collection of money due the state. The sheriff might not be in default as to money never received by him and for the collection of which no remedy was expressly given him by the law. But, however this may be, the money in question remained in the hands of the assessors until after the new law authorized payment of capitation taxes to the auditor, which officer had power, under other provisions Gf the statute, to...