I am constrained to dissent from the decision of the court, which, apparently, is based upon the opinion that *Page 304 the statute in question was not intended to apply to the delinquent property list required to be returned by the sheriff to the county court at or before its levy term on the third Tuesday in August, 1935, notwithstanding the legislature declared the act effective from the date of passage, March 9, 1935. The reasons assigned for this view, as I interpret the opinion, are (1) that the cost of publication of the list was not provided for by the county court in the budget of August, 1934, for the fiscal year 1934-35; and (2) that the application of the act, which became effective March 9, 1935, to the delinquent list to be prepared by the sheriff on or before the first Monday in June, following, would render the statute retroactive. As the statute is mandatory in its terms, requiring the county court to pay for the publication of a delinquent list to be prepared and published by the sheriff in the future, I see no legal efficacy in either of the reasons advanced. In the case of Woodyard Publications, Inc., v. RayLambert, Sheriff, cited in the opinion, a writ of mandamus was granted compelling the county court of Nicholas County to cause to be published and pay the cost of publication of the county financial statement in accordance with section 16, article 5, chapter 7, Code 1931. In the opinion of the case, it is said: "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 exrel. 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 *Page 305 or incurring indebtedness it is not `expressly' authorized by law to expend or incur."
Code, 11-9-20, requires the sheriff of each county, "on or before the first Monday in June, next succeeding the year for which such taxes are assessed * * *" to make up a list of the delinquent real and personal property for his county.
Code, 11-9-22, requires that such list shall be posted at the front door of the courthouse of the county and printed for one time in two newspapers of opposite politics, if there be such in the county, "at least two weeks before the session of the county court at which they are presented for examination."
Code, 11-9-23, provides that the sheriff or collector of the county shall present such lists to the county court for correction "at or before the session of the county court at which the county levy is to be laid."
Code, 11-8-2, names the third Tuesday in August of each year as the day upon which the county court shall actually lay the county levy for the tax year.
It will be seen from a careful comparison of the foregoing sections of the Code that the day upon which the county court makes the levy of county taxes is the basic time from which to calculate the date of the publication of the delinquent lists by the sheriff. He is required by law to publish them at least two weeks before the levy session of the county court, the third Tuesday in August, which, in this case, was August 20, 1935. It thus appears that the sheriff could have complied with the mandate of the statute by causing to be published the delinquent list in question at any time before August 6, 1935. It is plain, therefore, that from the first day of July, 1935, until the 6th day of August, 1935, the sheriff could have published the list so that the cost of publication would have been a debt incurred within the fiscal year 1935-36, for which the county court could have provided at its levy term in August, 1935.
I conclude, therefore, (1) that the application of the act to the delinquent list thereafter prepared by the sheriff will not render the statute retroactive; (2) that the *Page 306 cost of publishing the list is a legal debt which the county court must pay, even though the publication had been made in the fiscal year 1934-35; and (3) that the publication could have been made after July 1, 1935, and cost thereof paid from levies of 1935-36.
Judge Kenna joins me in this note of dissent.