dissenting:
The question presented in these original proceedings in mandamus, and the only question, is whether a levy in excess of one cent on each one hundred dollars on all real and personal property listed for taxation in the City of Huntington is necessary to meet the estimated expenditures of the boards of trustees of the firemen’s pension or relief fund and the policemen’s pension or relief fund during the fiscal year July 1, 1956 to June 30, 1957, under the provisions of Section 14, Article 6, Chapter 8, Code, 1931, as amended by Section 14, Article 6, Chapter 124, Acts of the Legislature, 1955, Begular Session, which section of the statute is quoted in full in the majority opinion. Instead of limiting its decision to that question the majority of the Court has discussed, considered, and determined other questions not fairly presented by the record and, in my judgment, has erroneously decided the controlling question in these proceedings. For these reasons I register this dissent.
The question dealt with in point 1 of the syllabus is not material to the single controlling issue involved in these proceedings and should not have been embraced in the syllabus. Whether the boards of trustees of the firemen’s and policemen’s pension or relief funds of the City of Huntington reported the condition of those funds on December 31, 1954, or on December 31, 1955, or did not then report the condition of those funds, has no bearing whatsoever upon the question involved which is whether a levy in excess of one cent on each one hundred dollars on the real and personal property listed for taxation in the municipality is necessary to meet the estimated expenditures of the boards of trustees for the subsequent fiscal year which began on July 1, 1956 and will end on June 30, 1957. The record in these proceedings shows *250the unquestioned financial condition of each of the funds on June 30, 1955, and on June 30, 1956, and whether the condition of each fund was reported on December 31, 1954, or on December 31, 1955, is of no importance whatsoever and is entirely irrelevant to the determination of the controlling question involved.
The question whether the moneys in the policemen’s and firemen’s pension or relief funds provided for in the statute are public funds of the municipality in which the boards of trustees of those funds operate likewise is not presented and no question as to the character of such funds is raised in each of these proceedings. For that reason the question of the character of such funds should not have been dealt with in point 5 of the syllabus.
The majority has also discussed, considered and determined the question of the solvency of each of the funds involved. The solvency of each fund is not challenged and no question concerning the solvency of either fund is presented by the record. Despite the absence of any such issue the question of the solvency of each fund is unnecessarily dealt with in point 6 and point 8 of the syllabus.
Though the provision of Section 14, Article 6, Chapter 8, Code, 1931, as amended, that “In every municipality there shall be a firemen’s pension or relief fund and a policemen’s pension or relief fund, which shall be maintained * * by necessary implication requires such fund to be maintained on a solvent basis, the solvency of either fund as now constituted and maintained is not challenged. No party to these proceedings contends that either fund is now insolvent, or that its solvency will be threatened or destroyed, if with a levy of one cent on each one hundred dollars of all real and personal property listed for taxation in the City of Huntington for the fiscal year July 1, 1956 to June 30, 1957, the estimated expenditures of the board of trustees of each fund are paid from the money produced by such levy, which for each fund will amount to approximately $24,000.00, and *251from the money now in each fund.
That a levy of one cent together with other assets in each fund has been in the past and is now completely adequate to provide sufficient money to pay the actual expenditures of the board of trustees of each fund, during each fiscal year, and to create a surplus for each fund is fully established by the written stipulation, agreed to by the parties, which is quoted in the majority opinion.
The figures in paragraph six of the stipulation, relating to the financial condition of the firemen’s fund, which are not disputed, show that as of June 30, 1956, the balance in that fund was $119,970.15 and that there was due from the 1955-56 budget $16,782.00. These two items aggregate $136,752.15 and that amount, exclusive of estimated salary assessments of $14,028.00 and estimated interest addition of $4,642.00, is more than double the amount of the total estimated expenditures of $60,183.00 and is, of course, sufficient to pay all such estimated expenditures. If the estimated salary assessments of $14,028.00, the estimated interest addition of $4,642.00 and the sum of approximately $24,000.00, which would be raised by a one cent levy, are added to the foregoing sum of $136,752.15, the total funds available for the fiscal year July 1,1956 to June 30,1957, amount to $179,422.15, which is $119,239.15 more than the expenditures estimated by the board of trustees of $60,183.00 for that fiscal year.
As to the financial condition of the policemen’s fund the figures in paragraph six of the stipulation, which are likewise not disputed, also show that as of June 30, 1956, the balance in that fund was $57,408.51 and that there was due from the 1955-56 budget $20,282.00. These two items aggregate $77,690.51 and that amount, exclusive of estimated salary assessments of $10,251.00, estimated police court fines of $6,222.00 and estimated interest addition of $622.00, is $13,397.51 more than the total estimated expenditures of $64,293.00 and is, of course, sufficient to pay all such total estimated expenditures. If *252the estimated salary assessments of $10,251.00, the estimated police court fines of $6,222.00, the estimated interest addition of $622.00 and the sum of approximately $24,000.00, which would be raised by a one cent levy, are added to the foregoing figure of $77,690.51, the total available funds for the fiscal year July 1, 1956 to June 30, 1957, amount to $118,785.51, which is $54,492.51 more than the expenditures estimated by the board of trustees of $64,293.00 for that fiscal year.
In short, with a levy of one cent, after the payment of the estimated expenditures which, of course, include benefits to pensioners, the balance in the firemen’s fund would amount to $119,239.15, and the balance in the policemen’s fund would amount to $54,492.51. These highly satisfactory and beneficial results have been accomplished by the levy of a tax of only one cent in the past, and in the face of these uncontroverted facts any necessity for the levy of a tax in excess of one cent during the fiscal year July 1, 1956 to June 30, 1957, simply does not exist.
In view of the foregoing undisputed figures which clearly establish the financial condition of each fund for the fiscal year July 1, 1956 to June 30, 1957, it is manifest that a one cent levy together with the money in each fund is sufficient to pay the expenditures estimated by the board of trustees of each fund during that period and that any levy in excess of one cent is not only wholly unnecessary but is clearly not authorized by any provision of the applicable statute. Section 14 of the statute requires the council or other governing body of each municipality, subject to its provisions, to levy annually a minimum tax of not less than one cent on each one hundred dollars of all real and personal property listed for taxation in such municipality. It does not require or authorize any such municipality to levy a tax in excess of one cent unless a tax in excess of that figure is necessary to meet the estimated expenditures of the board of trustees of the firemen’s pension or relief fund and the policemen’s pension or relief fund. As the undisputed facts, established by the stipulation, show beyond ques*253tion that a one cent levy, in view of the financial condition of each fund, is sufficient to meet the expenditures estimated by the board of trustees of each fund for the fiscal year July 1, 1956 to June 30, 1957, the action of the council in levying a tax of one cent and in refusing to levy a tax in excess of that figure was clearly right and should not have been disturbed by this Court.
The action of the council was based upon and fully supported by undisputed facts and was approved by the state tax commissioner in his conditional acceptance of the budget of the municipality submitted to him for the fiscal year July 1, 1956 to June 30, 1957. Despite these wholly uncontroverted facts and its holding in point 9 of the syllabus that the “ascertainment of a legislative fact, which is primarily of a juristical nature, ordinarily will not be opened for judicial determination” and that a legislative declaration with respect to an existing condition as a fact but which is actually juristical will be given weight and dignity, the majority by its present decision ignores and disregards the finding of the council, which constituted an “ascertainment of a legislative fact,” that a levy of a tax of one cent was sufficient to meet the expenditures estimated by the board of trustees of each fund for the fiscal year July 1, 1956 to June 30, 1957.
The levy by the council of the City of Huntington of a tax of one cent on all the real and personal property listed for taxation in that municipality for the fiscal year July 1, 1956 to June 30, 1957, was neither arbitrary nor capricious. On the contrary its action in fixing the levy on that basis and in finding that to meet the expenditures estimated by the board of trustees of each fund it was not necessary to levy a tax in excess of one cent is fully sustained by the uncontroverted facts which reveal the financial condition of each fund for that fiscal year.
Though the majority in point 3 and point 4 of the syllabus gives recognition to the proposition that the council of a municipality is vested with discretion in determining whether a levy in excess of one cent on each *254one hundred dollars of the value of property within the municipality is necessary, and in point 3 of the syllabus declares that this Court will not in the first instance, and in the absence of arbitrary action upon the part of such council, determine or control the fiscal affairs of any municipality in this State, by its decision the majority has in fact controlled the exercise of discretion by the council of the City of Huntington, has rejected its finding, which is neither arbitrary nor capricious, that the levy of a tax of one cent is sufficient to meet the expenditures estimated by the board of trustees of each fund and that the levy of a tax in excess of one cent is not necessary for that purpose during the fiscal year July 1, 1956 to June 30, 1957, has in effect forced the council, despite its finding to the contrary, to accept the estimate of the expenditures determined by the board of trustees of each fund and to levy a tax in excess of one cent to meet the amount of that estimate, and, contrary to the pronouncements in point 2 and point 4 of the syllabus that the Legislature may not vest and has not by the statute vested in the boards of trustees the authority to fix and determine the amount to be levied by the council, has actually permitted the board of trustees of each fund, instead of the council of the municipality, to fix and determine the rate of such levy.
In addition to its gratuitous holding that each fund should be maintained on a solvent basis, which merely declares what the Legislature has already required by necessary implication, the majority in effect transforms each admittedly solvent fund into an irreducible fund. Though the statute requires each fund to be maintained upon a solvent basis, there is no provision in the statute which indicates in any wise whatsoever that the Legislature intended either fund to acquire the status of an irreducible fund. If the expenditures estimated by the board of trustees of either fund for any given fiscal year must be met in full by the annual levy of a tax in excess of one cent, the amount of which is subject only to the statutory limitation of three and one-half cents, and the *255balance in each fund may not be used for that purpose in conjunction with the minimum levy of one cent, the balance in the fund will be increased each year to the extent of the difference between the amount provided by such levy and the amount necessary to meet the annual estimated expenditures; and this constantly increasing balance, constituting an unnecessary burden upon the taxpayers of the municipality, can not be used to meet in part the estimated annual expenditures but apparently must remain in the fund.
In my judgment the Legislature, in enacting the statute, never intended the accomplishment of any such intolerable result. It is clear to me that the intention of the Legislature was that the money provided by the minimum levy of one cent and any available balance in the fund should be used together to meet the annual estimated expenditures and that no levy in excess of one cent should be imposed by the municipality until and unless the amount produced by the minimum levy and any available balance in the fund together become insufficient for that purpose.
The present practice, popular with and engaged in by many tax authorities at all governmental levels, national, state and local, of levying excessive taxes to create a particular fund and to maintain and develop it in financial proportions beyond the needs for which it is created is a manifest abuse of the taxing power and, by imposing unnecessary, excessive, and unjust burdens upon the taxpayers, constitutes a real threat to the existence of free government. Such practice should not receive judicial sanction but on the contrary should in every instance be condemned and prohibited by the courts. In these days of excessive taxation at all governmental levels and wasteful expenditure of public funds created at the expense of the taxpayers, the warning uttered by Daniel Webster in his argument and incorporated in the opinion of Chief Justice Marshall in M’Culloch v. The State of Maryland, 4 Wheaton 316, 4 L. ed. 579, that the power to tax is the power to destroy should be remembered and *256heeded at all times by every department of government. That warning should never be forgotten and the destructive use of the taxing power should never be encouraged or permitted. If the annual balance in each fund is constantly increased the taxpayers of the municipality are subjected to an unjust and excessive rate of taxation which provides money for each fund beyond the needs for which it was created. In my judgment the decision of the majority requires unnecessary and excessive taxation and permits the continual accumulation of unneeded surpluses in each of the funds involved in these proceedings. With that result I do not agree.
This Court has consistently held that the impartial exercise of discretion by the council of a municipality, after investigation and consideration, can not be controlled by mandamus. State ex rel. Smith v. Town of Ravenswood, 104 W. Va. 614, 140 S. E. 680; State ex rel. Lockett v. Board of Commissioners of the City of Huntington, 103 W. Va. 723, 138 S. E. 397; State ex rel. Hoffman v. Town of Clendenin, 92 W. Va. 618, 115 S. E. 583, 29 A. L. R. 37; State ex rel. Hamrick v. County Court of Pocahontas County, 92 W. Va. 222, 114 S. E. 519. It has also declared in numerous cases that mandamus will not lie to control a tribunal or officer in the performance of a discretionary act, in the absence of caprice, passion, partiality, fraud, arbitrary conduct, some ulterior motive, or misapprehension of law upon the part of such tribunal or officer. Meador v. County Court of McDowell County, 141 W. Va. 96, 87 S. E. 2d 725; State ex rel. Ward v. County Court of Raleigh County, 138 W. Va. 551, 76 S. E. 2d 579; State ex rel. Payne v. Board of Education of Jefferson County, 135 W. Va. 349, 63 S. E. 2d 579; Beverly Grill, Inc. v. Crow, 133 W. Va. 214, 57 S. E. 2d 244; Carter v. City of Bluefield, 132 W. Va. 881, 54 S. E. 2d 747; Robertson v. Warth, 132 W. Va. 398, 52 S. E. 2d 237; State ex rel. Conley v. Pennybacker, 131 W. Va. 442, 48 S. E. 2d 9; Hinkle v. Town of Franklin, 118 W. Va. 585, 191 S. E. 291; Walden v. State Compensation Commissioner, 113 W. Va. 307, 167 S. E. 743; Wiley v. *257County Court of Mercer County, 111 W. Va. 646, 163 S. E. 441; Reynolds v. State Road Commission, 111 W. Va. 398, 162 S. E. 319; State ex rel. Dillon v. Neal, 104 W. Va. 259, 139 S. E. 757; Ellis v. State Road Commission, 100 W. Va. 531, 131 S. E. 7; State ex rel. Buxton v. O’Brien, 97 W. Va. 343, 125 S. E. 154; Swearingen v. Bond, 96 W. Va. 193, 122 S. E. 539, 36 A. L. R. 1500; State ex rel. Noyes v. Lane, 89 W. Va. 744, 110 S. E. 180; Comity Court of Taylor County v. Holt, 61 W. Va. 154, 56 S. E. 205; Marcum v. Ballot Commissioners of Lincoln, Logan, Mingo and Wayne Counties, 42 W. Va. 263, 26 S. E. 281, 36 L. R. A. 296; State ex rel. Wayne County Court v. Herrald, 36 W. Va. 721, 15 S. E. 974; Miller v. County Court of Tucker County, 34 W. Va. 285, 12 S. E. 702; State ex rel. Boggs v. County Court of Wood County, 33 W. Va. 589, 11 S. E. 72; Satterlee v. Strider, 31 W. Va. 781, 8 S. E. 552; State ex rel. Miller v. Buchanan, 24 W. Va. 362. Contrary to and despite the pronouncements of this Court in the cases just cited, the decision of the majority disturbs and vacates the impartial and considered discretionary action of the council in determining that the levy of a tax in excess of one cent was not necessary to meet the estimated expenditures during the fiscal year July 1, 1956 to June 30, 1957, and controls the exercise of discretion by the council by requiring it to levy a tax in excess of one cent on each one hundred dollars of the property listed for taxation in the municipality for the purpose of meeting such estimated expenditures for that fiscal year.
As the undisputed facts disclosed by the record establish beyond even the shadow of a doubt that a levy in excess of one cent is entirely unnecessary and therefore wholly unwarranted and without justification from the standpoint of law, fact or reason, the petitioner in each of these proceedings has utterly failed to show a clear legal right to the remedy afforded by mandamus. By a heretofore unbroken line of decisions this Court has held that in mandamus the petitioner must show a clear legal right to the relief which he seeks. State ex rel. Public Service Commission v. Southern West Virginia Oil and *258Gas Corporation, 141 W .Va. 551, 91 S. E. 2d 737; Meador v. County Court of McDowell County, 141 W. Va. 96, 87 S. E. 2d 725; State ex rel. Watts v. Kelly, 140 W. Va. 177, 83 S. E. 2d 465; State ex rel. Dunn v. Griffith, 139 W. Va. 894, 82 S. E. 2d 300; Adams v. Londeree, 139 W. Va. 748, 83 S. E. 2d 127; State ex rel. Emery v. Rodgers, 138 W. Va. 562, 76 S. E. 2d 690; Hockman v. County Court of Tucker County, 138 W. Va. 132, 75 S. E. 2d 82; State ex rel. Trent v. Amick, 137 W. Va. 842, 74 S. E. 2d 587; Gibson v. Bower, 137 W. Va. 462, 73 S. E. 2d 817; State ex rel. Daily Gazette Company v. County Court of Kanawha County, 137 W. Va. 127, 70 S. E. 2d 260; State ex rel. Payne v. Board of Education of Jefferson County, 135 W. Va. 349, 63 S. E. 2d 579; State ex rel. Burford v. McKee, 135 W. Va. 18, 62 S. E. 2d 281, 23 A. L. R. 2d 798; State ex rel. West Virginia State Lodge, Fraternal Order of Police v. City of Charleston, 133 W. Va. 420, 56 S. E. 2d 763; State ex rel. Conley v. Pennybacker, 131 W. Va. 442, 48 S. E. 2d 9; State ex rel. Koontz v. The Board of Park Commissioners of the City of Huntington, 131 W. Va. 417, 47 S. E. 2d 689; State ex rel. Golversic v. Arnold, 128 W. Va. 272, 36 S. E. 2d 209; Childers v. State Road Commissioner, 124 W. Va. 233, 19 S. E. 2d 611; Ebbert v. Bouchelle, 123 W. Va. 265, 14 S. E. 2d 614; Brumfield v. Board of Education, 121 W. Va. 725, 6 S. E. 2d 238; Rusinko v. Shipman, 111 W. Va. 402, 162 S. E. 316; Antonovich v. State Compensation Commissioner, 110 W. Va. 273, 157 S. E. 591; State ex rel. Woodyard Publications v. County Court of Hardy County, 108 W. Va. 166, 150 S. E. 512; Hall v. Stepp, 105 W. Va. 487, 143 S E. 153; State ex rel. Goshorn v. Johnson, 102 W. Va. 629, 135 S. E. 899; State ex rel. Kelly v. State Road Commission, 102 W. Va. 88, 134 S. E. 465, 53 A. L. R. 146; State ex rel. Blackwood v. Brast, 98 W. Va. 596, 127 S. E. 507; State ex rel. Jones v. Kuhn, 94 W. Va. 415, 120 S. E. 888; State ex rel. Miller v. City of Spencer, 93 W. Va. 516, 117 S. E. 226; State ex rel Smith v. County Court of Kanawha County, 78 W. Va. 168, 88 S. E. 662, 20 A.L.R. 1030.
For the various reasons stated and under the author*259ities cited in this dissenting opinion, I would refuse a writ in any form and would dismiss each proceeding at the cost of the petitioner.
I am authorized to say that Judge Lovins, before his recent retirement from this Court, concurred in the views expressed in this dissent.