State ex rel. Trust Co. v. Melton

• Decision Date: 22 May 1907
• Parties: STATE ex rel. TRUST CO. v. MELTON, Sheriff, et al.
• Court: West Virginia Supreme Court

57 S.E. 729

62 W.Va. 253

STATE ex rel. TRUST CO. v. MELTON, Sheriff, et al.

Supreme Court of Appeals of West Virginia.

May 22, 1907

Submitted April 23, 1907.

Syllabus by the Court.

A sheriff or collector of state, county, and district taxes having in his hands money belonging to the general county fund of his county, is bound to receive, from a taxpayer, in payment of all of his state, county, and district taxes county orders, drawn pursuant to law, if owned by such taxpayer and by him tendered for payment thereof, and mandamus lies to compel such acceptance of the same.

That the orders tendered were drawn in a fiscal year prior to that for which the taxes are due, and made payable out of the funds of such previous year, constitutes no ground for refusal to accept them in payment of the taxes.

County orders are assignable, subject to a right, in the sheriff or collector, to deduct any taxes due from the payee thereof.

Such orders are payable by the sheriff or treasurer on demand, and in the order of their presentation for payment, when payment is insisted upon.

The estimate made by a county court, in accordance with the requirements of section 29 of chapter 39 of the Code of 1899 [section 1231, Code 1906], does not constitute a rule for the guidance of the sheriff or treasurer in his disbursements of county levies.

Such estimate does not effectuate appropriations of the levy based upon it, or an apportionment thereof, to or among the several purposes therein specified.

After having appropriated all the funds in the hands of the sheriff or treasurer by the drawing of orders thereon, the county court cannot vary the rule or order of payment of the orders so as to favor the holders of certain orders, to the detriment of the holders of others. Nor can it prevent the payment of outstanding orders, to the end that salaries and other necessary current charges against the treasury, not yet due, may have preference on becoming due and payable.

Discretionary power to refuse the writ of mandamus will not be exercised in a case in which the legal right is clear, substantial, and fruitful in benefits, and the plaintiff has done nothing out of which an equitable estoppel or defense in the nature of one can arise.

Error to Circuit Court, Kanawha County.

Application by the state, on the relation of the Kanawha Banking & Trust Company, for writ of mandamus to John J. Melton, sheriff, and others. From an order granting a writ, defendant brings error. Affirmed.

Linn Byrne & Linn, S. B. Avis, and Daniel Dawson, for plaintiff in error.

Price, Smith, Spilman & Clay, for defendants in error.

POFFENBARGER J.

J. J. Melton, sheriff of Kanawha county, and the county court of Kanawha county, have obtained writs of error to a judgment of the circuit court of said county, awarding, at the instance of the Kanawha Banking & Trust Company, a peremptory writ of mandamus, requiring the said sheriff to receive from the relator county orders of said county, amounting to about $2,500, in payment of its taxes, for state, county, and district purposes, for the year 1906, about equal in the aggregate thereof to the amount of the orders tendered. The return admits possession, by the sheriff, of money applicable to the payment of county orders, sufficient in amount to pay the orders in question, and the validity of the orders tendered in payment of taxes is not denied. Substantially, the defense is that these orders, though valid, are not payable out of the funds in the sheriff's hands, because these funds were derived from the levy for the year 1906, all of which has been appropriated by the county court to the discharge of current expenses for said year, both by the estimate upon which the levy was predicated and the actual issuance of orders in said year to the extent of the entire amount of the levy, and the orders tendered in payment of taxes are, with a single exception, orders drawn in previous years on the funds of previous years. It is further shown that they constitute a portion of a large accumulation of unpaid orders of prior years, amounting to $150,000 or $200.000 and it is urged that, if the sheriff is bound to pay such orders out of the levy for 1906, such payment may work postponement or deprivation of payment of the salaries of county officers and other expenses for services absolutely necessary and indispensable in character.

The determination of the rights of the parties involves the interpretation of the following statutory provisions:

"The county court of every county shall, at a regular session of said court, held not later than the month of July in each year, proceed to make up an estimate of the amount necessary to be levied for the current fiscal year to cover all county debts and liabilities payable during each year, including the probable expenditure for county purposes, the amount outstanding of unpaid orders on the county treasurer, and a proper allowance for delinquent taxes, discount allowed on taxes paid on or before the thirtieth day of November, expense of collection and contingencies; but deducting the money in the county treasury applicable to the service of the year, and county claims, the collection of which during the year may, in their opinion be relied on; which estimate shall set forth the several heads of expenditure with the amount estimated as necessary under each head, and when approved by the court shall with the order approving it be entered by the clerk in the proper record book. The said county court shall thereupon levy so many cents on every hundred dollars of the valuation of the property taxable in the county, according to the last assessment thereof, as will cover the estimated amount necessary to be raised for county purposes during the fiscal year: Provided, first, that no county court shall in the year nineteen hundred and five assess or levy taxes, including district road taxes, which shall exceed by more than five per cent. the aggregate amount of taxes levied by it in the year nineteen hundred and four; nor in the year nineteen hundred and six assess or levy taxes which shall exceed by more than seven per cent. the aggregate amount of taxes levied by it in the year nineteen hundred and four; nor in the year nineteen hundred and seven assess or levy taxes which shall exceed by more than nine per cent. the aggregate amount of taxes levied by it in the year nineteen hundred and four. The word 'taxes' shall be construed to include district road taxes, as well as all other taxes for county purposes. If the county court of any county shall be of opinion that the maximum fixed by this proviso is insufficient for any of said years, it shall make up an itemized estimate of the expenses to be provided for in such year, with the rate of levy in cents on each one hundred dollars of valuation necessary to provide for the payment thereof, and may submit the question of an increased levy to the voters of the county at an election to be held therein on not less than thirty days' published notice, and may make such rules and regulations as may be necessary for the holding of such election; and if three-fifths of the votes cast on the question of increased levy at such election be in favor of such levy, the county court may levy the amount stated in the notice of election as necessary; but this proviso shall not extend to the counties of McDowell and Gilmer, but in such counties, for said years, the county court may levy taxes under the limitations contained in section 7 of article 10 of the Constitution of this state: Provided, second, that after the year nineteen hundred and seven no county court shall in any year assess or levy taxes for any and all purposes, including district road taxes, the aggregate of which shall exceed sixty cents on the hundred dollars valuation of property except for the support of free schools and the payment of indebtedness as provided in section 7 of article 10 of the Constitution, unless such levy shall have been submitted to a vote of the people of the county and have received three-fifths of the votes cast for and a gainst the same." Section 29, c. 39, Code 1899 [section 1231, Code 1906].

"All orders on the county treasury shall be in form or effect as follows:

'No.______ $______ ______ County ______ date ______.

'The sheriff will pay to A. B., or order, the sum of ______ dollars and ______ cents allowed by special appropriation passed on the ______ day of ______, 18__, after deducting therefrom the amount of all state, county and other taxes and levies in his hands for collection against the said A. B.

'E. F., Clerk. C. D., President.'

Or instead of the words 'allowed by special appropriation passed on the ______ day of ______, 18__,' there may be inserted therein according to the fact, the words, 'for county bond due,' 'for interest due,' or 'for quarter's salary,' or other words specifying a lawful cause for such order; and no such order shall be rendered invalid by a defect of form." Section 37, c. 39, Code 1899 [section 1248, Code 1906].

Every officer charged with the collection of taxes, county and district levies, militia fines and officers' fees, shall receive in payment therefor, at par, any county or school order or draft, drawn on him pursuant to law, which is then due and payable, if the person offering the same in payment be the person entitled thereto at the time it is so offered. And if the amount due on such order or draft be more than the amount to be collected from the person so offering the same in payment, the officer shall pay the balance due thereon, if he have in his hands any money applicable to such payment and if not, he shall endorse thereon the amount of taxes, levies, fines or fees held by him against such...