CHARLESTON.

#### Buzzard *v.*Pocahontas County Court

(No. 6662)

Submitted May 13, 1930.

Decided May 20, 1930.

*A. P.*Edgar, for plaintiff in error.

*J. E. Buckley*and *F. B. Hill,*for defendant in error.

Woods, Judge:

The county court of Pocahontas county, respondent in a certain mandamus proceeding in the circuit court of said county, prosecutes error to a judgment of the circuit court, requiring it to take such appropriate action as may be necessary to put into effect the provisions of the “memorandum of understanding ’ ’ between the Agricultural Extension Division, College of Agriculture, and 150 or more farmers of Pocahontas county, appropriating the funds to the amount of $150 per month, or $1,800 per year, for one year beginning July 1, 1929, and continuing same to the end of the fiscal year, as part salary and expenses of a county agent, and appropriating funds to the amount of $33.33 per month, or $400 per year, for one year beginning July 1, 1929, and continuing same to the end of the fiscal year, as part salary and expenses of a *221borne demonstration agent, in compliance witb tbe provisions of section 28, c. 39, Code.

Tbe petition for mandamus alleged tbat tbe county court bad arbitrarily refused to appropriate and provide funds to carry into effect tbe “memorandum of agreement.’’

Tbe return, while admitting tbat more tban 150 names appeared on tbe petition, attached to and made a part of tbe “ memorandum of agreement, ” alleges: (1) Tbat tbe assessed valuation will not exceed $15,000,000, and tbat after making deductions for existing indebtedness and tbe usual expected discounts, delinquencies, and exonerations, it will not be sufficient to provide tbe necessary $2,200 for salaries on a levy of *iy2*cents on tbe $100; and (2) tbat there are not 150 farmers on the petition.

Tbe position as to deductions prior to making tbe levy is not well taken. Tbe levy is directed to be made from tbe assessed valuation. Section 28, c. 39, Code; *Hutchinson*v. *County Court,*100 W. Va. 461, 130 S. E. 654; *State ex rel. Cokeley*v. *Ireland et al.,*91 W. Va. 435, 113 S. E. 652. Tbe evidence of tbe county officials is to tbe effect tbat tbe assessed valuation was $15,159,180, and tbe court so found.

Tbe remaining issue goes to whether or not there were in fact 150 or more signers, who were farmers under tbe statute. If there were, then tbe duty is clear, and mandamus will lie. *State ex rel. Cokeley*v. *Ireland, supra; Hutchinson*v. *County Court, supra; State ex rel. Hall*v. *County Court,*102 *W.*Va. 212, 135 S. E. 5.

One hundred eighty-three signatures of individuals purporting to be farmers appeared on tbe petition at tbe time tbe same was submitted to tbe county court. Of this number 27 were challenged by tbe return on the ground tbat they were not farmers within tbe meaning of tbe statute. Proof was taken on tbe issue raised thereon, and stipulations between counsel were entered of record to tbe effect tbat 17 of tbe 27 were in fact not farmers, and tbat 7 were farmers. Tbe remaining 3 were found by tbe court to be farmers.

By bis finding tbat 166 of tbe signers were in fact farmers, tbe trial court properly included tbe names of tbe 8 who had, *222subsequent to the filing of the petition with the county and prior to its action thereon, attempted to strike their names from the petition. Each had signed the paper with the understanding that it was to be effective when 150 farmers had affixed their signatures thereto. The extension department had acted thereon, Such signers would not now be permitted to remove their names ex parte.

Since the county court was not a party to the contract between the petitioners and the extension department, it could not avail itself in the mandamus proceeding of any equitable defense which would be accorded to a party to the contract. The “memorandum of agreement, like other contracts, is subject to the rules of pleading as to collateral attack.

Perceiving no error in the ruling of the circuit court, we affirm the judgment.

*Affirmed.*