State Ex Rel. Clair L. Cook. v. Lawson, (No. 6986)

• Citation: 110 W.Va. 258
• Decision Date: 10 March 1931
• Docket Number: (No. 6986)
• Court: Supreme Court of West Virginia
• Parties: State ex rel. Clair L. Cook et al. v. Edgar C. Lawson,Auditor, et al.

110 W.Va. 258

State ex rel. Clair L. Cook et al.

v.Edgar C. Lawson,

Auditor, et al.

(No. 6986)

Supreme Court of Appeals of West Virginia.

Submitted March 4, 1931.

Decided March 10, 1931.

Mandamus Taxation

Funds derived from taxes levied for a particular purpose shall be expended for that purpose and for no other. (Revised Code 1931, 11-8-12). And where such funds have been diverted through error, mandamus will lie, on a proper showing, to restore the funds to the purpose for which levied, and to correct the error.

Original proceeding in mandamus by the State, on the relation of Clair L. Cook and others, against Edgar C. Lawson, as State Auditor, and others.

Writ awarded.

R. D. Bailey, for relators.

T. C. Townsend, for respondents.

Lively, Judge:

The superintendent of schools of Wyoming County, and the district boards of education of that county, relators in this mandamus proceeding, ask that the state auditor and state sinking fund commission be required to pay over to the sheriff of that county $89,398.24, the amount levied in the year 1930, for free school purposes and collected by the auditor from the public utilities of that county, asserting that they have made requisition on the auditor for such payment, in the manner prescribed by law, which payment has been refused. It is averred in the petition that the auditor has diverted the said sum and paid it over to the commission on certain indebtedness of the county.

The auditor and the commission reply that the auditor had, before such requisition was made by the county superintendent dated February 11, 1931, paid to the sheriff of Wyoming County by warrants on the state treasurer all the money in his hands so collected, who, upon delivery to him of one of the said warrants, endorsed it over to the state sinking fund commission to pay indebtedness accruing by reason of road bonds issued on behalf of three of the magisterial districts of Wyoming County.

It appears that the sinking fund commission, on December 9, 1930, wrote to the sheriff directing his attention to his promises to pay it money due to meet current payments of interest on the bonds as soon as tax collections began, and his failure to do so, and calling upon him to cooperate by sending the balances due as of December 1, 1930, as early as possible, and stating that it had carried overdrafts for him for several months. He replied, two days later, that he was unable to send the money levied for that purpose, because of local demands for outstanding drafts which had about exhausted his collections. In his letter he inquired: "Do you think it possible to draw on the Public Utility Funds and pay the balances due the sinking fund now? Our Public Utility valuations were increased for the year 1930. If any of this money could be transferred and applied to our credit in your department, it would certainly be appreciated. I hope this can be done. Assuring you that anything you can do in this matter will be appreciated, I remain," etc. No reply seems to have been made to this letter. However, the sheriff, by affidavit, says that on or about the......day of February, 1931, he went to Charleston at the request of the auditor, accompanied by his office deputy Shannon, and was told by the auditor that Wyoming County owed to the state for interest and sinking fund on its road bonds about the sum of $134,-000.00; and that there was due the boards of education for school purposes $138,398.88 less $12,680.14; that the auditor had made out several warrants, and informed him...