State ex rel. Dillon v. Bare

• Decision Date: 23 October 1906
• Citation: 56 S.E. 390,60 W.Va. 483
• Parties: STATE ex rel. DILLON v. BARE et al.
• Court: West Virginia Supreme Court

56 S.E. 390

60 W.Va. 483

STATE ex rel. DILLON v. BARE et al.

Supreme Court of Appeals of West Virginia.

October 23, 1906

Submitted October 18, 1906.

Syllabus by the Court.

Mere colorable action of an officer clothed with discretionary power, plainly arbitrary or capricious, and evincing a purpose to evade due and faithful performance of duty constitutes no bar to an application for a writ of mandamus to compel action in good faith.

But mandamus will not be awarded for such purpose unless it appears that the officer has clearly and willfully disregarded his duty, or that his action was extremely wrong or flagrantly improper and unjust, so that his decision can only be explained as the result of caprice, passion partiality, or corruption.

A case in which the evidence was insufficient to prove lack of good faith on the part of an assessor for purposes of taxation.

Application by the state on relation of C. W. Dillon, state tax commissioner, for writ of mandamus to B. E. Bare, assessor first assessment district of Fayette county. Writ denied.

C. W Dillon and Mollohan, McClintic & Mathews, for petitioner.

St Clair, Walker & Summerfield and Price, Smith, Spilman & Clay, for respondent.

POFFENBARGER J.

C. W. Dillon, state tax commissioner, suing on behalf of the state, seeks a peremptory writ of mandamus against B. E. Bare, assessor of the first assessment district of Fayette county, to compel him to assess and value 21 leasehold estates in his district at their true and actual values, according to his honest judgment, based upon such information relating to their value as the law requires him to consider. In another action, against S. T. Carter, assessor of the Second District of said county, he asks a like writ to compel said assessor to assess in like manner, 32 leasehold estates. The alternative writ against Bare avers the total value of said 21 leases to be $1,340,000, and the assessed value, as entered upon the personal property book by said assessor, to be $73,500. The writ against Carter avers the total valuation of the 32 leases in his district to be $5,635,000, and the valuation entered in the personal property book against them by the assessor to be $506,000. In each of the writs it is averred that the assessments so made have not been made in good faith, and that they are merely colorable. Paragraph 7 of each petition as set out in the alternative writ reads as follows: "Petitioner further avers that the said pretended assessments are a fraud upon the state, county, and districts in said assessment district, and upon all the other tax payers of said district, and that said pretended assessment was fraudulently made, and does not represent the discretionary or judicial action of the said assessor, but that the said assessments were arbitrarily made that the said assessor might have the excuse that his duties had been performed." It is further averred in each of said petitions that the petitioner had brought to the attention of the assessors, the respondents, what he, petitioner, conceived to be the value of said leaseholds, and the evidence from which he derived his estimate of the values, which evidence consisted of the price at which the properties in question had been sold but a short time before the assessments were made. In the petition against Bare, he instances the Hemlock Coal Company which, three years ago, was sold for $163,000 is now worth at least $200,000 and is assessed at only $12,000, and says he requested the assessor to assess it at not less than $100,000. Similar instances are set forth in the petition against Carter. Time and space do not permit a full statement of the facts set forth in the petitions. The assessors in their returns to the writs aver that the assessments made by them were made in good faith and according to their best judgment as to the value of the leasehold estates. Both the petitions and the returns are under oath, and some affidavits have been filed in support of the returns. The petitioner has filed an affidavit in support of the averments of his petition and to refute certain allegations in the returns. The only matter relied upon as evidence to sustain the charge of fraud or lack of honesty and good faith on the part of the assessors is the vast difference in the valuation stated by the tax commissioner and those entered by the assessors, and the conduct of the assessors in disregarding the suggestions made, and the evidence produced, to them by the petitioner.

The first objection raised by the respondents is that the tax commissioner is not entitled to invoke the writ of mandamus against these assessors. It suffices to say in response to this that the case of Dillon v. Graybeal (W. Va.) 55 S.E. 398 the decision in which is announced simultaneously with this one, holds that, in respect to matters over which an assessor has no discretionary power and is governed by the law, mandamus lies to compel proper action in the name of the state at the instance of the tax commissioner. As the reasons for this holding are set forth in the opinion in that case, they need not be repeated here.

It is further objected that, though there is jurisdiction by mandamus to the extent above stated, the writ cannot go in either of these cases, because the valuation of property is a matter committed by the law to the discretion of the assessors, and is not reviewable otherwise than by the tribunal, and in the manner, prescribed by the statute namely, by the county courts upon applications made by the owners of property, for the corrections of error. The exercise of such discretion is not subject to control by the writ of mandamus, but mandamus is a proper remedy to compel an officer, possessed of discretionary powers, to exercise them. If he refuses to act at all, he may be compelled to proceed, but the court which compels him to do so will not prescribe, in its order, how he shall proceed, or rather what his judgment and determination shall be. In other words, in a case like this, if an assessor should refuse to assess property that is taxable, any court having jurisdiction over him by mandamus will compel him to assess, but will not determine the value at which he shall assess it. Wheeling B. & T. Co. v. Paull, 39 W.Va. 142, 19 S.E. 551; White v. Holt, 20 W.Va. 792; Cowan v. Doddridge, 22 Grat. 458; Page v. Clopton, 30 Grat. 415; Miller v. County Court, 34 W.Va. 285, 12 S.E. 702; State v. County Court, 33 W.Va. 589, 11 S.E. 72; State v. Herrald, 36 W.Va. 721, 15 S.E. 974; Marcum v. Commissioners, 42 W.Va. 263, 26 S.E. 281, 36 L.R.A. 296. The principle just stated applies, not only when the officer absolutely refuses to act at all, but also when he has acted, and it appears to the court that he has not acted in good faith, but has, on the contrary, set up as an excuse, and as a cover for his disobedience of the law, a mere pretense of action. This the law holds to be equivalent to no action, no performance of duty. The requirement that an officer shall act to the best of his knowledge and judgment in the exercise of discretionary power is one which he cannot arbitrarily set aside. It is a rule of law over which he has no control, and to which he must yield obedience, and courts will not allow remedies to be defeated by mere pretexts or evasions of duty. This legal proposition is sustained by a great many decisions. The rule and its exception are stated in 19 Am. & Eng. Ency. Law, 737, as follows: "The writ cannot be used for the correction of errors. If, however, such judgment or discretion is abused, and exercised in an arbitrary or capricious manner, mandamus will lie to compel a proper exercise thereof." They are set forth in Merrill on Mandamus, § 40, in the following terms: "Again, it may happen that the person or tribunal charged with discretion or with a judicial decision of the matter has been influenced by fraud, passion, adverse interest, or prejudice in its action. In such case justice requires that there should be some redress. Accordingly, when such parties have acted in bad faith or corruptly in reaching their decisions, the courts hold that their conclusions may be reviewed by the writ of mandamus." With the comprehensiveness and accuracy, characteristic of the work, Blackstone's Commentaries, Book 3, p. 111, says: "It issues to judges of any inferior court, commanding them to do justice according to the powers of their office, whenever the same is delayed, for it is the peculiar business of the Court of King's Bench to superintend all inferior tribunals, and therein to enforce the due exercise of those judicial or ministerial powers with which the crown or Legislature have invested them; and this, not only by restraining their excesses, but also by quickening their negligence, and obviating their denial of justice." One would expect to find more cases of refusal to interfere, falling under the general rule, than of interposition by mandamus, arising under the exception, and such is the condition, but this does not argue in the least against the existence of the exception. It has been recognized by the federal Supreme Court in Ex parte Burr, 9 Wheat. 530, 6 L.Ed. 152, Ex parte Bradley, 7 Wall. 364, 19 L.Ed. 214, and several other cases. In Ex parte Secombe, 19 How. 13, 15 L.Ed. 565, Chief Justice Taney said of the authority of a court to disbar an attorney: "The power, however, is not an arbitrary and despotic one, to be exercised at the pleasure of the court, or from passion, prejudice, or personal hostility." In Ex parte Burr, Chief Justice Marshall had asserted the same proposition in substance, but said: "The court is not inclined to interpose, unless it were in a case where the conduct of the Circuit or District Court was irregular, or was flagrantly...