(concurring) :
I concur in the conclusion that it was proper to grant the peremptory writ, because the relator has shown a clear legal right to it, and for no other reason. A majority of us are of the opinion that the statute gives the county court the right to lay a special bridge levy in 1910, notwithstanding it did not lay such levy in either the year 1908, or 1909. This is sufficient reason for issuing the writ. But the opinion decides other questions which I do not think we are called upon to decide, and to the correctness' of which I can not assent. These questions are of vital importance concerning the powers, rights and duties of state tar commissioner. In creating this highly important office, I think it was clearly the purpose of the legis--lature to make it the chief head of the entire system for the as*34sessment, levying and collection of taxes throughout the state. Section 2 of chapter 22, (Code 1906) makes it the duty of the state tax commissioner to see that all the laws relating to all these matters are faithfully administered; his office is a branch of the executive department of the state government. In my judgment it is his province to see that county courts, and all other tax levying bodies, as well as assessors, keep within'the prescribed limits of the law. County courts, as now constituted, are not judicial courts; they do not hear and decide causes. Arkell v. Board of Commissioners, 41 W. Va. 471. They act ministerially, not judicially, and are performing a delegated legislative function when levying taxes. 1 Cooley on Taxation 46. True, section 24, article VIII of t'he Constitution, vests county courts "with authority to lay and disburse the county levies.” But they are not given unlimited power. The same section reserves to the legislature the right to regulate this power, and it has been the policy of the legislature to regulate it ever since the formation of the state, by prescribing, not only the purposes for which levies may be laid, but also the maximum of rate. Consequently, a levy-laid for a purpose not authorized by law, would be void for want of authority to make it, and nO' one is compelled to render obedience to an ■act, or judgment, that is void. County courts are of special ■and limited jurisdiction, and no presumption is indulged in favor of its jurisdiction which must appear from the record ■of its proceedings. Cunningham v. Squires, 2 W. Va. 422; Despard v. Pleasants Co., 23 W. Va. 318; Mayer v. Adams, 27 W. Va. 244; Goshorn's Ex’rs. v. County Court, 42 W. Va. 735. It is not only limited by statute as to the purposes, and amounts which it may levy, but even the time when it may make levies is fixed by law. In fact I know of no other tribunal, denominated a court, that is as much circumscribed and hedged about by statutes as our county- courts. If it should make a separate and distinct levy for an unauthorized purpose, such levy would be void and might be assailed collaterally. In fact they are most usually assailed in such a way. The void judgment of even a judicial tribunal of general jurisdiction may be collaterally assailed, and why not the order of a county court, when void for want of jurisdiction?
In the present case the court acted under a statute which cre-*35atecl a special “bridge levy.” This levy was severable, and entirely distinct from the levies for other county purposes; and, therefore, the assessment and collection of such levy could, in nowise, interfere with levies made for other purposes which were legal. Hence, the general doctrine that the courts will not interfere to prevent the collection of a tax on the ground that it is excessive in amount, or because the levy is affected with some species of fraud, or irregularity, does not apply. The bridge levy is not good in part, or bad in part; it is either legal as a whole, or void in toto. The disturbance of it could not, therefore, interfere with the other valid assessments necessary to keep the machinery of the state and county government in motion. Such a distinct and severable tax, if void, can be enjoined without interference with the collection of other taxes lawfully assessed. 2 Cooley on Taxation (3rd. ed.) 1426; Norwood v. Baker, 172 U. S. 269; Jones v. Holzapfel, 68 Pac. 511 (Okla.); 1 High.on Inj., secs'. 490-498.
Section 2, chapter 29, Code 1906, reads in part as follows: “It shall be the duty of the state tax commissioner to see that the laws concerning the assessment and collection of all taxes and levies, whether of the state or of any county, district or municipal corporation thereof, are faithfully enforced.” This makes it his duty to decide, in the first instance, whether the statute creating the special bridge levy authorized such levy in 1910, when no levy therefor'had been made in 1908, or 1909. State v. Buchanan, 24 W. Va. 362. It was. a troublesome question to decide; this Court itself is divided on the propér interpretation of the statute. But he decided that the county court could not lay a bridge levy in 1910, when no such levy had been made in the preceding year; and he so advised the county court. It disregarded his advice; he then instructed the assessor, his subordinate officer, not to extend the levy. According to the law of the Buchanan Case, supra, he acted in the line of his duty. It was also held in that case that it was the duty of the assessor to obey the instructions of the auditor. He then occupied a similar relation to the auditor that he now occupies to the state tax commissioner. Hnder these conditions what was the assessor to do ? . I think he was justified in: obeying his superior officer. He did so, and it did not, therefore, become necessary for the state tax commissioner to apply to the *36court for mandamus. The bridge levy 'was distinct from the other county and district levies; consequently the failure to extend it could occasion no interference with the necessary county levies. The fact that he may sometimes err in judgment as to the law, does not affect the question of the duty of the assessor to obey, in the first instance. If he does so obey, as he did in this instance^ it becomes unnecessary for the state tax commissioner to resort to mandamus. Respondent does not set up his judgment of the law, against that of the county court, as a defense, but he pleads the instructions of his superior officer. This he had a right to do, under the authority of the Buchanan Case, supra. But, according to our construction of the statute, the defense is unavailing, because we see that the relator has made a clear case entitling it to the writ; and this Court will n-ot do a vain and useless thing by refusing the writ simply because the assessor has performed his official duty in obeying the instructions of his superior. But the effect of the majority opinion is to hold that the writ would have been granted, even if we had construed the statute not to authorize the bridge levy in question; to this proposition I can not agree. I do not think it is consistent with law and I am very sure it is not consistent'with good reason. The Buchanan Case presented a condition which is the very reverse of this case; there the assessor had' refused to obey the instructions of his superior officer who had advised him correctly as to the law, and it was held that he could not defend by saying that he was improperly advised; in the present case the assessor followed the advice of his superior who advised him incorrectly as to the law, and the opinion in-effect says he should not have obeyed. Judge JohN-soN who wrote the opinion of the Court in the Buchanan Case, at 'page 381- says: “As mandamus is a discretionary writ, if it manifestly appeared to- us, that the articles enumerated in the alternative -wait were under the law exempt from taxation, we shbtild decline to issue the writ; not because the respondent has'any right to make such a defense or to rely upon such reason as an excuse for his insubordination, but because we' would not be willing to involve the citizens in ah expensive litigation, growing out of the imposition of a clearly illegal tax.'”' Notwithstanding this is obiter, it is, nevertheless, law; and it' máy be that so much of the majority opinion in the pres*37ent case as deals- with the respondent's right to justify his refusal to extend the bridge levy, is obiter also; but if it is not, the effect of it is to hold that, even if it manifestly appeared that the tax is illegal, still this Court would compel the assessor to extend it, simply because the state tax commissioner should not be permitted to determine for himself whether a county court levy is< void or not. If this is law, this Court finds itself in the anomolous position of being obliged, under sprue conditions, to use its power to further an unlawful act. To my mind this is preposterous.
It is a fundamental law, in relation to the writ of mandamus, that it is not a writ of right, but is discretionary with the courts, and that before the peremptory writ will issue, the party applying therefor must show a clear legal right to it. Merrill on Mandamus, section 291; 26 Cyc. 143; Milliner's Adm'r v. Harrison, 33 Grat. 422; State v. County Court, 47 W. Va. 672 (35 S. E. 955); 2 Patton & Heath 38; State v. Buchanan, 24 W. Va. 362 (Syl. point 9). The question of importance then is, not what defense can, or can not, be made, but rather has relator made out a clear case, entitling him to the writ? So that, if it had appeared to us that the levy which the county court Avas seeking to have extended was void, it would have been our duty to deny the writ, regardless of matters alleged in the answer of respondent.
People ex rel. Wood v. Assessor, 137 N. Y. 201, is a case in point. The court of appeals of New York refused the writ, and in-its opinion, at page 204, says: “The writ will be granted to prevent a failure of justice, but never to promote manifest injustice. It is a remedial process and may be issued to remedy a wrong,- not to promote one, to compel the discharge of a duty which ought to be performed, but not to compel the performance of an act which will work a public and private mischief, or to compel a compliance with the strict letter of the law, in disregard of its spirit or in aid of a palpable fraud.” See also, The Board of Supervisors of Cheboygan County v. Supervisor of Mentor Township et als., 94 Mich. 386, another case directly in point. In that case, Grant, Judge, who wrote the majority opinion, says, at page 388: “It would', in my judgment, be a reproach upon the law if courts were.,, under the circumstances, of this case, compelled to issue the. writ of *38mandamus, and thereby compel the imposition of a fraudulent tax. The circumstances must be exceptionally extraordinary which will justify a supervisor in refusing to comply with his statutory dffiy, but we think the respondents in this case 'were justified in so doing.”
The fact that other- remedies are open to the taxpayer by which he may resist an unlawful tax is nO reason for denying to the state tax commissioner the right to secure the observance of law on the part of the tax levying bodies through the medium of advice and instructions to the assessors. Why compel him, in every case of an unlawful levy, to resort to mandamus? The remedy is open to both the state tax commissioner and the county court, and the legality of a disputed levy can be as quickly determined whether the writ be sued out by one, or the other. Why then minimize the importance of the state tax commissioner’s office by deciding that lie can not advise his assessor to refuse to extend a void levy, and that he must proceed by mandamus? This would give him no more authority than any taxpayer would have; and would defeat the purpose of the legislature, which was to make that office a supervisory office over all tax levying bodies in the state, and over the assessors and tax collectors. I think the assessor, in this instance, had a right to plead the instruction given him by the state tax commissioner, in justification of his refusal to extend the special bridge levy, but that this defense can not avail, because it manifestly appears that the bridge levy is legal.
Writ Awarded.