Woodyard Publ'ns INC. v. Lambert, (No. 7076)

• Decision Date: 22 March 1932
• Docket Number: (No. 7076)
• Citation: 112 W.Va. 22
• Court: West Virginia Supreme Court
• Parties: Woodyard Publications, Inc., et al. v. Kay Lambert,Sheriff, et al.

112 W.Va. 22

Woodyard Publications, Inc., et al.

v.Kay Lambert,

Sheriff, et al.

(No. 7076)

Supreme Court of Appeals of West Virginia.

Submitted Jan. 13 1932.

Decided March 22, 1932.

1. Counties Mandamus

Chapter 7, article 5, section 16 of the Code, requiring the county court of every county, under penalty of fine, to cause to be published annually a statement of the fiscal affairs of the county is mandatory and the performance of the duty thus imposed upon the court, may be enforced by mandamus at the instance of a party in interest.

2. Counties

It is unlawful, under chapter 11, article 8, section 13 of the Code, for a county court to expend money or incur any indebtedness which it is not "expressly" authorized by law to extend or incur.

3. Mandamus

Chapter 11, article 9, section 22, standing alone or when read with other provisions of the Code, does not justify the issuance of a writ of mandamus requiring a county court to cause to be published delinquent property lists and to provide payment for the costs of publication.

Original proceeding in mandamus by the Woodyard Publications, Incorporated, and another, against Ray Lambert, Sheriff of Nicholas County, and others.

Writ awarded in part.

Poffenbarger & Poffenbarger, A. N. Breckenridge, and Steptoe & Johnson, for relators.

Emmett Horan, and Hubbard & Bacon, for respondents.

Wm. E. Chilton, A. G. Fox, H. L. Ducker, and Price, Smith & Spilman and J. M. Woods, for Daily Gazette Co. and others, as amici curiae.

The petitioners, Woodyard Publications, Inc.. owner and publisher of the Nicholas Republican (a Republican weekly

112 w. Va. newspaper published in Nicholas County) and a taxpayer of said county, and Ruskin K. Wiseman, owner and publisher of the Nicholas Chronicle (a Democratic weekly newspaper published in said county) and a citizen and taxpayer of said county, seek a writ of mandamus directed to Ray Lambert, as sheriff of said county, the county court thereof and Arnold McCue, C. C. Coe and W. D. Halstead, members of said court, commanding said Ray Lambert, as such sheriff, to furnish to and authorize the publication by petitioners copies of the lists of delinquent and improperly assessed lands and delinquent personal property in. Nicholas County for the year 1930, as provided by chapter 11, article 9, section 22 of the Code, and commanding the said county court and the members thereof to cause to be published in each of said newspapers the financial statement of said county for the fiscal year ending June 30, 1931, in accordance with chapter 7, article 5, section 16 of the Code, and pay for such publication according to the rates provided in chapter 59, article 1, section 34 of said Code, and further commanding said court and its members to direct the said sheriff to deliver to petitioners for publication copies of said delinquent lists and to provide for payment thereof.

Chapter 7, article 5, section 16 of the Code requires the county court of every county, under the penalty of a fine, to cause to be published within four weeks after its first session of each fiscal year in at least two newspapers of opposite politics, if there be such in the county, an itemized account of the receipts and expenditures of the county during the previous fiscal year. This provision is mandatory. State ex rel. Bailey v. County Court, 109 W. Va. 31, 152 S. E. 784. The non-performance of this duty cannot be defended on the ground that the county court is without available funds to pay the costs of publication. It may levy taxes, if necessary, for that purpose. Nor will the performance of the duty, requiring the expenditure of money, violate chapter 11, article 8, section 13, Code 1931, which prohibits the county court from expending money or incurring indebtedness it is not "expressly" authorized by law to expend or incur.

Chapter 11, article 9, section 20, requires the sheriff, after ascertaining the taxes assessed in his county that cannot be collected, to prepare, on or before the first Monday in June next succeeding the year for which such taxes were assessed, (1) a list of property in the land book improperly placed thereon, or not ascertainable; (2) a list of other real estate which is delinquent for the non-payment of taxes thereon; and (3) a list of delinquent taxes so assessed on other than real estate. Section 22 provides: "A copy of each of such lists shall be posted at the front door of the courthouse of the county, at least two weeks before the session of the county court at which they are presented for examination. And a copy of each of such lists shall at the same time be printed for one time in two newspapers of opposite politics, if such there be in the county: provided, that in such publication the aggregate amount of the tax only and not each division thereof need be published. Thereafter, the sheriff shall proceed to collect such delinquent taxes." Prior to 1925, the statute required publication only of the list of delinquent persons and personal property, and directed the cost thereof to be paid out of the county treasury. Chapter 59, Acts 1925, amended the statute by ...