This is a case which involves questions of public policy, and the interpretation and application of constitutional provisions, all of vital importance to the people of the state, and to every county, school district and municipality within its borders. I regard as unfortunate the fact that the decision of the majority is based entirely on jurisdictional questions not going to the merits of the controversy. Therefore, this dissent.
This case represents the first frontal attack on Section 1, Article X of the Constitution, known as the Tax Limitation Amendment. If once the bars are lowered so that levying bodies may be permitted, by one device or another, to cover up violations of law in the expenditure of public funds, by paying illegally issued orders or other obligations out of levies of future years, then any hope of ultimate limitation of levies is a myth, and the long struggle for control of public expenditures will have been lost. This may seem strong language, but I believe the situation before us justifies its use.
Here, we have a case where, so far as outward appearances go, the county court proceeded within the provisions of the Constitution. Section 1, Article X does provide that a levying body may, over a period of three years, and with the approval of sixty per cent of the voters, increase levies beyond the authorized rate, not to exceed fifty per cent thereof. But when we look into the matter, we find that, in violation of law, the county court had, prior to June 30, 1939, and over a period of about three years, exceeded the expenditures which its revenues and income justified to the extent of $85,794.01. On June 19, 1939, the court estimated this deficit at $76,000.00, made up of outstanding warrants, $46,000.00; bills payable, $8,500.00; *Page 471 and sheriff's overdraft in the general county fund of $21,500.00. There was no concealment of the court's purpose, and it is embodied in its own records.
I do not think it important to trace in detail the methods by which this unfortunate situation developed, but this much may be said: the court grossly over-estimated prospective receipts other than tax levies, and this year after year, ignoring the experience of former years which furnished a safe guide; it under-estimated outstanding orders issued by it, and of which it obviously had knowledge; completely ignored unpaid bills it had contracted; from year to year it exceeded the budget allowances of various county officials; and altogether conducted the fiscal affairs of the county in an improvident and reckless manner, with the result that at the beginning of the 1939-40 fiscal year, the accumulated indebtedness had exceeded fifty per cent of all revenues which could be raised annually under authorized levies. To meet this situation, resort was had to the provision of Section 1, Article X, which reads:
"* * * and the legislature shall further provide by general law, for increasing the maximum rates, authorized to be fixed, by the different levying bodies upon all classes of property, by submitting the question to the voters of the taxing units affected, but no increase shall be effective unless at least sixty per cent of the qualified voters shall favor such increase, and such increase shall not continue for a longer period than three years at any one time, and shall never exceed by more than fifty per cent the maximum rate herein provided and prescribed by law; * * *."
We are, therefore, met with the question of whether, under this provision, accumulated indebtedness can be provided for.
It may be that the nature of the indebtedness should be taken into consideration. Conceivably some great emergency could be used to justify a payment of obligations incurred in one year out of the levies of a future *Page 472 year. Casual deficits will frequently occur, and what I shall say is not intended to apply to such deficits. But here, I see no reason for the existing situation, and I contend that every dollar of the deficit undertaken to be paid by the increased levies is illegal indebtedness. Let us examine the statute. Code, 11-8-25, 31.
Section 25:
"Boards or officers expending funds derived from the levying of taxes shall expend the funds only for the purposes for which they were raised."
Section 26:
"A local fiscal body shall not expend money or incur obligations:
(1) In an unauthorized manner;
(2) For an unauthorized purpose;
(3) In excess of the amount allocated to the fund in the levy order;
(4) In excess of the funds available for current expenses."
Section 27:
"Any indebtedness created, contract made, or order or draft issued in violation of sections twenty-five and/or twenty-six of this article shall be void."
Sections 28 to 31 provide penalties, pecuniary and criminal for violations of the sections quoted. When the legislature said that a fiscal body should not "expend money or incur obligations * * * in excess of the amount allocated to the fund in the levy order * * *" or "in excess of the fund available for current expenses," it made it legally impossible for any fiscal body to make a contract, or issue an order or warrant, which the revenues of the current year would not cover. That was the plain purpose of the legislature, and it was not contemplated that *Page 473 a time should ever come when it would be necessary to use the increased levy provisions of Section 1, Article X for any purpose other than to increase future expenditures. I am unwilling to ascribe to the people of the state, by whose vote this provision was adopted, any intent to invite violation of law by their public servants, such as would inevitably result from the use of this provision to cover indebtedness illegally incurred.
Furthermore, many decisions of this Court hold that under similar statutes the intent is clear to require fiscal boards to limit their expenditures and their obligations to the means available within the current fiscal year. Davis v. Board, 38 W. Va. 382,18 S.E. 588; Honaker v. Board, 42 W. Va. 170,124 S.E. 544; 32 L.R.A. 413, 57 Am. St. Rep. 847; Hanley v. CountyCourt, 50 W. Va. 439, 40 S.E. 389; Lawson v. County Court,80 W. Va. 612, 92 S.E. 786; Campe v. Board, 95 W. Va. 536,121 S.E. 735; Shonk Land Co. v. Joachim, 96 W. Va. 708,123 S.E. 444; Huddleston v. County Court, 98 W. Va. 706,128 S.E. 925; Swiger v. Board, 107 W. Va. 173, 147 S.E. 708. The "pay-as-you-go" principle in public expenditures is, in theory, deeply imbedded in the minds of our people, and grows out of the unfortunate experience of the mother state. It is embodied in our Constitution. Sections 4 and 6, Article X limit the power of the state to become indebted either directly or by the assumption of the debt of another; Section 7 of Article X limits the levies which county authorities may lay, and Section 8 prohibits the incurring of any debt by a county, city, school district or municipal corporation in any manner or for any purpose except by a vote of the people, and even the right of the people to vote an indebtedness is limited as to amount. Some thirty-five years ago, the legislature began in earnest the task of curbing unlawful expenditures. Patiently and consistently it has pursued its task, sometimes with discouraging results, for mounting taxes finally brought about the present system whereby property is classified for tax purposes, and levies limited. Then to implement this reform, and as necessary to insure its success, the statutes which I have quoted above were enacted. In view of this *Page 474 record of constitutional restrictions, legislative enactments and court decisions, I assert that the declared public policy of this state, at the date of the adoption of the Tax Limitation Amendment, was to require all fiscal bodies to limit expenditures to resources available within the current fiscal year. If this be true, then it follows that the provisions of Section 1 of Article X authorizing increased levies by a vote of the people was inserted with that public policy in mind. And here it should be stated that Section 1 of Article X of the Constitution, having been adopted by a vote of the people, became binding on the people themselves until, in the manner constitutionally provided, they should decide to change the same. If increased levies to cover past indebtedness are not authorized under that section, then a vote thereon gives no power to the county court to lay such levies.
I have not failed to consider the contention that the record does not specifically show what part of the indebtedness making up the deficit was illegally incurred. It may be that some of the outstanding orders, and those paid by the sheriff in creating the overdraft in the general county fund, were issued at a time when funds were available or potentially available within the current fiscal year, for their payment. It can hardly be that they are all within that class. I do not think this possible and even probable situation should be allowed to control our decision. The handling of a county budget must cover the entire fiscal year. At the beginning of each year an estimate of receipts and expenditures is made up, and, barring extraordinary occurrences, such estimate should closely approximate actual receipts and expenditures. Therefore, the county court knows, within reasonable limits, just what fund it has or will have available for expenditures. It knows, also, that some expenditures will certainly be required, such as salaries of county officials, expenses of the courts, assistance in county offices, feeding prisoners, expenses of elections, and many other items which might be mentioned. It knows that these expenditures will be required to be made in each month of the fiscal year, the last month to the same extent as the first. Knowing all *Page 475 this, a county court is not justified in expending the fund available for the whole year in the first few months of that year, and then, in violation of law, continue to issue warrants and contract for expenditures, when it knows the fund available for the entire year has been exhausted, and endeavor to meet the situation thus created by the contention that salaries must be paid, prisoners fed, court expenses provided for, and other mandatory expenses of government met. If such a situation, and it is the usual one, is allowed to control, then there is no way by which expenditures can be effectually curbed. I do not believe it should control us. I think we are warranted in holding all classes of indebtedness which accumulates under this system as illegal. It is true that innocent people may be prejudiced, but the legislature has attempted to provide for this when it imposed personal liability on members of fiscal bodies who violate the law in this regard. It may be that this provision is not adequate, but it is not possible to provide for all contingencies resulting from any type of wrongdoing. We can only administer the law as we find it, carry out established policies, and let consequences fall where they may. No law can be administered without resulting injustice in some instances.
I would therefore hold that the County Court of Mingo County was without constitutional power, under Section 1, Article X of the Constitution, and under the election held thereunder, to lay the additional levies which this proceeding seeks to supersede, on the ground that the additional levies provided for in said section can only be laid to cover expenditures within the fiscal years in which they may be imposed.
These views are not stated with any understanding on my part that the majority disagrees with them in their entirety. On the contrary, while not undertaking to speak for it, I understand that but for the procedural question, and some others, the majority, in the main, concurs. I further understand the majority view to be that, even conceding the correctness of the position I have taken on the merits, it should not control the case. On this point, I find myself in disagreement with my associates. *Page 476
This proceeding is instituted under section 22, Chapter 67, Acts of Legislature, 2nd Ex. Sess., 1933, which reads:
"Within forty days after an order for a levy the circuit court of the county, or the judge in vacation, may allow a writ of supersedeas on the petition of at least twenty-four persons interested in reversing the order. The levying body, without awaiting the final decision, may rescind the order, and impose a new levy. If the court, on the hearing, finds that the order is contrary to law and reverses the order, the levying body shall impose a levy according to law. If money is collected under any order which is afterward rescinded or reversed, the collecting officer shall upon demand, refund any payment to the person from whom it was collected. If the collecting officer fail to repay the amount, he and his sureties shall be jointly and severally liable for the amount and the costs of recovery. Recovery may be had by summons before a justice or on motion in the circuit court."
Upon the filing of the petition provided for, the statute provides that the circuit court "may allow a writ of supersedeas." Of course, the supersedeas is to the levy which is the subject of the complaint. When the petition was filed in the case at bar, the court did the exact thing which the statute said it might do, it "allowed" the supersedeas. In my judgment, when it did so it acquired statutory jurisdiction of the proceeding, with full power to render such decision as the developments of the case might warrant. The technical issuance of any further writ or process was, in my opinion, unnecessary to give the circuit court a jurisdiction it already had. As a matter of fact the circuit court did assume jurisdiction, a copy of its order allowing the supersedeas was served on the county court members, and they later appeared and interposed pleas and answers to the petition. It may be that an allowance of a supersedeas is not, technically, equivalent to the issuance of the writ, but in this statutory proceeding where, as I believe, the parties treated the court order as the supersedeas referred to in the statute, *Page 477 and litigated the matter on that basis, I can well imagine the surprise of the litigants involved when they learn that they never had a case in court. I do not think the case at bar justifies such a holding. My deference to established rules of procedure does not carry me to the extent to which the majority seems willing to go. I see in the case before us a question of the greatest importance, calling for a decision on its merits. There can be no question of due process. There has been notice and a hearing. It is not, in my judgment, a case calling for a rigid application of technical rules of procedure.
A reading of the statute will disclose that after the allowance of the supersedeas, the levying body "without awaiting the final decision, may rescind the order and impose a new levy." This, to my mind, means that the mere allowance of the supersedeas operates to give the levying body power to undo its act. It could hardly have any effect unless based on jurisdiction. Then, too, without requiring more, it is clear that upon the allowance of the writ, a hearing and final decision is contemplated. This final decision may be delayed; by reason of delay or otherwise taxes may be collected, because provision is made for a refund of taxes paid under any levy order which is afterwards rescinded or reversed. The whole tenor of the statute convinces me that the filing of the petition gives to the circuit court jurisdiction of the controversy, and that the allowance of the writ of supersedeas, as was done in this case, sets in motion all proceedings necessary to a final decision.
It may be said that there has been undue delay in reaching a decision, and this is true. Due to the character of the case there should have been an early hearing and a prompt decision. But the petitioners filed their petition within the period prescribed by the statute, and there is nothing in the record convicting them of being responsible for the delay. This being true, I do not think the delay, with resulting confusion, whatever it may be, should be laid at their door. Nor am I impressed with the argument, though not urged in the majority opinion, that, on account of the lapse of time, and the confusion *Page 478 which may result from a reversal of the decision of the lower court, we can do nothing at this time. Such an attitude toward plain violations of constitutional and statutory law will encourage, though unintentionally, their repetition in the future. Under the majority holding, ways will always be found, through delays and otherwise, to make relief in a sense impractical, and any escape from the consequences of law evasions and violations, in effect, made impossible. The petitioners having filed their protest against the levies in question, and in the manner and within the time provided by law, are entitled to have this Court vindicate their right to have the law obeyed by their public servants. We are not at this time concerned with the consequences which may result from our decision. In my opinion, we should say that this levy was illegal and void, and the mere fact that difficulties may be encountered in working out the details necessary to place matters in statu quo, if that be possible, should not be considered by us. That is the problem of those who, in the first instance, violated the law, and those who through possible neglect in enforcing their rights may have placed themselves in a condition where it is impossible to give complete relief. It is our duty to settle the principles of law involved, and that the majority opinion fails to do, apparently on the ground, primarily, that matters have so drifted along as to render any adequate relief impossible. That is the attitude of the defeatist, and I am unable to concur therein.
Being of the opinion that the levies sought to be superseded were illegally laid, I would reverse the circuit court and remand the case. *Page 479