Charleston & S. Bridge Co. v. Kanawha County Court

24 S.E. 1002, 41 W. Va. 658, 1896 W. Va. LEXIS 21

• Court: West Virginia Supreme Court
• Decided: March 21, 1896
• Status: Published

Opinions

English, Judge:

On the 6th day of April, 1894, the Charleston & South-side Bridge Company presented its petition to the County Court of Kanawha county, praying for the correction of an erroneous assessment of its bridge for the year 1893, claiming that for the year 1892 its bridge was assessed at twenty two thousand dollars, and that the same property for the year 1893 was assessed upon the personal property books of said county at fifty thousand dollars; the said assessment was very unjust, excessive, and unequal valuation, and that the same should be reduced to the said valuation of twenty two thousand dollars for the year 1892; also claiming that said bridge was real estate, and should have been entered and charged on the land books, instead of on the personal property books, of the county; that only a part of said bridge is in the city of Charleston, or Charleston district, the residue thereof being in Loudon district—and praying that the assessment of said bridge [for the year 1893 be corrected, and reduced to the valuation for the year 1892, and, when corrected, that the same might be entered upon the land books of the county for the year 1893, or if, for any reason, the same could not be entered for the year 1893 upon the land books, that it might be directed to be so entered on the land books for 1894, and charged back for the year 1893, and that in that event all taxes against petitioner on the personal property book for the year 1893 be released, and discharged.

On the 31st day of July, 1894, the petition having been tiled, and the prosecuting attorney being present, the court, having heard the evidence adduced, and the arguments of counsel, dismissed said petition; and the petitioner, desiring to appeal from said decision, excepted to the opinion of the court, and took a bill of exceptions.

On the 16th day of February, 1895, the case was heard in the Circuit Court of Kanawha county upon the transcript of the record of the proceedings had before said county court, and was argued by counsel for the applicant, the Charleston & Southside Bridge Company, and by the prosecuting attorney of said county, representing the state, county, and districts, on consideration whereof said circuit court held that the judgment of the county court entered on the 31st day of July, 1894, refusing the applicant all relief prayed for in its petition, and dismissing said petition, was erroneous, and the same was reversed and set aside; and the court corrected and changed the valuation of applicant’s bridge upon the personal property books for the year 1893 from fifty thousand dollars to twenty five thous- and dollars, and fixed the valuation of said bridge at the sum of twenty five thousand dollars, and held that the bridge of said applicant was real estate, and should be entered and charged on the land books of said county, instead of the personal property books, and directed that said bridge be entered and assessed for taxation on the land books of said county for the year 1895 at the valuation so fixed by the court; and from this judgment the state of West Virginia, the county court of Kanawha county, and the district of Charleston obtained this writ of error.

The first question we encounter in examining this record is the question of jurisdiction. It is insisted by counsel for the defendant in error that under the provisions of section 94 of chapter 29 of the Code a party aggrieved by an assessment is given the right to apply for relief to the county court, and to appeal to the circuit court if the county court decides against the application, and that no provision is made for any appeal or action beyond the circuit court. When, however, we look to the language of the statute, we find it reads thus: “If the court, upon an application to correct an assessment under any of the provisions of this chapter refuse to make the correction asked for, the applicant may have the evidence taken therein, certified by the county court and an appeal may be taken as in other cases from the order of refusal to the circuit court of the county,” etc. The first clause of the section provides that “any person claiming to be aggrieved by an entry in the land or personal property books of any county * * * may within one year after the verification of such hook * * * apply for relief to the county court of the county in which such books were made out; hut he shall before such application is heard give reasonable notice to the prosecuting attorney of the county, whose duty it shall be to attend to the interest of the state, county and district in the matter.” Now, if this notice was omitted, and no opportunity afforded the state, county, and district to be thus represented in the matter, no one would contend that a correction of an assessment, in the absence of notice to the prosecuting attorney, would be valid. So it is perceived that when the application is made to the county court for the correction the statute provides that the interest of the state, county, and district shall be represented by the law officer of the state and county. He appears for them, and sees that their interests are protected, and they thus become parties to the proceeding. Again, when we look to the record, we find that the final order made in the circuit court shows that the prosecuting attorney appeared and argued the case, representing the state, county and district. Here we have the applicant, on the one hand, seeking to reduce the assessment of its property, claiming that it has been erroneously assessed, and the state, county, and district, on the other hand, resisting said reduction. All the elements of a suit are present, and the amount in controversy, is more than sufficient to confer jurisdiction upon this Court.

As to the question raised in reference to the county court being a party to the appeal, our statute (section 4 of chapter 39 of the Code) provides that the “real and personal estate, rights, interests and privileges, in relation to the real or personal estate, claims and rights of action heretofore belonging to any county, or held in trust for, or for the use of such county or its inhabitants, are hereby transferred to and vested in the county court thereof as such corporation;” and while it may be true that the county court, as a court, could not properly obtain a writ of error from a judgment of the circuit court, which has passed upon and reversed the action of such county court, yet the county court, in its representative capacity, representing the rights interests and privileges of the county, under said section 4, might obtain such writ. At the date of the decision in the case of Low v. County Ct., reported in 27 W. Va. 785, which was handed down in March, 1886, there was no statute authorizing an appeal from the action of the county court in correcting an erroneous assessment of lands. It is so stated in the opinion, audit was there held that the remedy was by certiorari. In the case of Pittsburg, C. & St. L. Ry. Co. v. Board of Public Works, 28 W. Va. 264, this Court held that under our Constitution the Supreme Court of Appeals of the state has no power to review, by writ of error, or appeal, the decisions or orders of inferior tribunals or officers as to matters which are simply administrative, executive, or legislative, and not strictly judicial in their nature, except where such power may be expressly conferred by the Constitution.

The question then, which presents itself for determination, is as to the character of the action of the circuit court which is complained of. Was it administrative or executive? In order that we may examine this question properly, let us inquire what was done. The county court refused to correct the assessment, and the matter was appealed to the circuit court; and in that court, on one side, we find the Charleston & Southside Bridge Company, and on the other the state, county and district, represented by their respective attorneys, arrayed against each other. And while it is true that our Constitution (article VIII, s. 24) in defining the jurisdiction and powers of the county court) expressly says that they “may exercise such other powers and perform such other duties not of a judicial nature as may be prescribed by law,” yet when the consideration of this matter was transferred by appeal into the circuit court which the statute expressly authorizes, it came then into a forum that could entertain and determine questions of a judicial nature. The county court had dismissed the application of the petitioner; being of opinion, as is shown by the bill of exceptions, that the assessment of the bridge of the applicant for taxation was controlled exclusively by the provisions of section 63 of chapter 29 of the Code. And no evidence being offered, or facts proved, to show that the said assessment for the year 1893 was erroneous, under the provisions of said section, and the court declining to pass upon the constitutionality of said section, as it deemed it improper to do so, the case was appealed, as before stated, to the circuit court, which court, after hearing the arguments, reversed the judgment of the county court, corrected and changed the valuation of applicant’s bridge upon the personal property books for the year 1893 from fifty thousand dollars to twenty five thousand dollars, fixing the valuation of said bridge at twenty five thousand dollars and directed that said bridge be entered and assessed for taxation on the land books of said county for the year 1895 at the valuation of twenty five thousand dollars. This action of the circuit court could not be regarded as merely executive or ministerial. Webster, in defining “executive,” says: “In government, ‘executive’ is distinguished from ‘legislative’ and ‘judicial’; ‘executive’ being applied to that which carries the laws into effect, or secures their due performance.” The judgment complained of did carry the statute into effect, as it appears on the statute book. Neither was it merely ministerial; pursuing the directions of the statute. The manner of ascertaining the valuation of a toll bridge is plainly prescribed in section 63 of chapter 29 of the Code. The assessor is thereby required to ascertain a just estimate of its annual value, and, for the purposes of taxation, said statute provides that the value of a toll bridge or a ferry shall be taken to be ten times its annual value. This application was to correct the assessment of this bridge at fifty thousand dollars, yet, so far as the transcript and bi 1 of exceptions show, no witness was offered to prove the annual value of said bridge; and the bill of exceptions certifies all of the facts proved, and further certifies that no evidence was offered or facts proved by the applicant to show that the said assessment of the said bridge for the year 1893 was erroneous. We must presume, upon an application of this character, where the object was to correct the valuation or assessment by reducing it, that if the annual value was below five thousand dollars the fact would have been proven. And the bill of exceptions, disclosing the further fact that the applicant sought to reduce said assessment by taking the opinion of various witnesses as to what they considered a fair assessment for taxation, three of whom fixed a fair valuation of the same for taxation at twenty five thousand dollars, which was the amount the circuit court fixed in its judgment, shows conclusively that this amount was not arrived at in the manner prescribed by section 63 of chapter 29 of the Code. No witness that was introduced stated that the annual value of said bridge was two thousand five hundred dollars, yet the law is imperative that, for the purpose of taxation, the value of a toll bridge or ferry shall be taken to be ten times its annual value. We must then regard this judgment of the court in fixing the valuation of this bridge property upon the testimony introduced in the cause as a judicial act.

Returning again to the question of the jurisdiction of this Court: If there should be any doubt as to the right of the county court, representing the county, to obtain a writ of error, there can be none as to the right of the state to obtain such writ—and it joins in the petition—as Const, art. VIII. s. 3, provides that “in cases relating to the public revenue the right of appeal shall belong to the state.” Counsel for the defendant in error, contending that this Court has no jurisdiction of this case, rely upon the case of Upshur Co. v. Rich, 135 U. S. 467 (10 Sup. Ct. 651). In that case it was held that an appeal, under a state law, from an assessment of taxes, to “a county court,” which, in respect to such proceedings, acts, not as a judicial body, but as a board of commissioners, without judicial powers, only authorized to determine questions of quantity, proportion, and value, is not a “suit” which can be removed from the county court into a circuit court of the United States, and be heard and determined there. Justice Bradley, speaking for the court, after referring to the case of Pittsburg, C. & St. L. Ry. Co. v. Board of Public Works, 28 W. Va. 264, quoting from it, and concurring in the views expressed in the portion of the opinion quoted, says: “At the same time, we do not lose sight of the fact, presented by every day’s experience, that the legality and constitutionality of taxes and assessments may be subjected to judicial examination in various ways—by an action against the collecting officer, by a bill of injunction, by certiorari, and by other modes of proceeding. Then, indeed, a suit arises which may come within the cognizance of the federal courts, either by removal thereto, or by writ of error from this Court, according to the nature and circumstances of the case. Even an appeal from an assessment, if referred to a court and jury, or merely to a court, to be proceeded in according to judicial methods, may become a suit within the act of congress.” The mode of proceeding on appeals from the county court is prescribed in section 14 of chapter 112 of the Code, which provides that “with the petition for the appeal there shall be a transcript of the record and proceedings in the county court, and the petition shall assign errors.” Section 94 of chapter 29 provides that an appeal may be taken from the refusal of the county court to correct an erroneous assessment, as in other cases. Can this be regarded in any other light than an appeal to a court, to be proceeded in according to judicial methods? We think not. Neither can we regard the action of the circuit court upon this appeal—-in treating the provisions of section 63 of chapter 29 of the Code as a nullity, and totally disregarding it, in correcting the assessment and arriving at what he considered a correct valuation, and reversing the action of the county court in dismissing the petition of said applicant, and holding the action of the county court tobe erroneous—in any other light than that of judicial action. The state and county were parties to this controversy in the circuit court. If a copy of the order allowing the appeal was not served upon them, it should have been, under the provisions of section 14 of chapter 112 of the Code. At any rate, they appeared by their attorney, and contested the right of the defendant in error tohave the assessment of said property corrected, and thereby became parties to the controversy, and had a right under the provisions of section 1 of chapter 135, to obtain this writ of error.

In order to sustain the action of the circuit court in disregarding the plain provisions of section 63 of chapter 29 of Code, in arriving at the proper assessment of the bridge belonging to the Charleston Southside Bridge Company, counsel for the defendant in error contend that said section is unconstitutional, and was properly disregarded. In what respect is said section unconstitutional? Article X, s. 1, of our Constitution provides that “taxation shall be equal and uniform throughout the state, and all property, real and personal, shall be taxed in proportion to its value, to be as certained as directed by law”; and this section concludes as follows: “the legislature shall have power to tax, by uniform and equal laws, all privileges and franchises of persons and corporations.” Section 63 of chapter 29 was passed in pursuance of this provision, having for its object the proper assessment of toll bridges and their franchises and privileges, and for that reason directs the assessor to ascertain the annual value, which would be unnecessary if the bridge itself was to be taxed as real estate. This provision plainly confers upon the legislature the power of directing how the value of such franchises shall be ascertained, and to ascertain such value in any other mode than that directed by the legislature would surely be in violation of this constitutional provision, unless the mode prescribed by the statute should violate the clause requiring taxation to be equal and uniform throughout the state. As we understand it, this means that the same species of property throughout the state should be assessed at the same rate, according to its value, which is to be ascertained as required by law; that is, all of the toll bridges (taking this case for illustration) throughout the state must be assessed, and their values ascertained by making a just estimate of the annual value of each, and multiplying it by ten. This mode bas a tendency to produce uniformity in assessments of this kind of property, and also to place the burden of taxation on property in proportion to its producing value, and—Cooley, Tax’n, p. 15, says, “The amount of taxation may be determined by the value of the property, or its use, or its capacity’, or its productiveness”—and to that extent would be uniform throughout the state, whereas, if assessments are to be based upon the opinions of individuals, as seems to have been done in this case, instead of being uniform and bearing equally upon property of the same character throughout the state, the assessments would be as shifting and variable as the opinions of men influenced oftentimes by local causes could possibly make them. In, Kentucky Railroad Tax Cases, 115 U. S. 321 (6 Sup. Ct. 57) the supreme court held that “a state law for the valuation of property, and the assessment of taxes thereon which provides for the classification of property subject to its provisions into different classes; which makes for one class one set of provisions as to modes and methods of ascertaining the value, and as to right of appeal, and different provisions for another class, as to those subjects; but which provides for the impartial application of the same means and methods to all constituents of each class, so that the law shall operate equally and uniformly on all persons in similar circumstances—denies to no person afiected by it ‘equal protection of the laws,’ within the meaning of the fourteenth amendment to the Constitution of the United States.’’ In the case of Com. v. Brown (recently decided by the court of appeals of Virginia) reported in 21 S. E. 357, it was held that “under Acts 1891-92, c. 363, p. 595, § 5, which requires oyster tongmen to make weekly returns of the amounts of their sales, and to pay a weekly tax on such sales equal to the rate collected by the state on other property, and authorizes them to pay two dollars, and thereby be relieved of making such returns, and im-imposes a fine for failure to make returns if the two dollars are not paid, does not conflict with Const. Art. X, requiring taxation to be equal and uniform, merely because the value of the property is not ascertained in the same way as other property, and by the same officers, nor because the tax is to be paid weekly, while other taxes were to be paid yearly, nor because a penalty was imposed for failure to observe the law which is not imposed in other tax laws.” 1 Desty, Tax’n, p. 84, thus states the law: “Whether the power of the legislature was reasonably or unreasonably exercised; whether it was wise or unwise, expedient or inexpedient, to enact the law—are questions left exclusively to other departments of the state government to decide, and their judgment must necessarily be decisive upon these questions. So, if the power to apportion tax is unwisely exercised, the remedy is with the legislature. Although the state may provide modes for collecting its revenue that will seem harsh, unreasonable, and arbitrary, the judiciary can not indicate limits to the power of the sovereign in this regard, so long asits laws were general and impartial. * * * The remedy against unwise and unjust modes of taxation is to be sought from the legislative department, and not from the judiciary.” Cooley on Taxation, under the title of “Assessment of Corporations” (page 273), says: “All corporations are taxable, when the state has not expressly relinquished the right to tax, by a stipulation in the charter; and the method of taxation, and what shall be taken as the measure of the tax, are in the discretion of the legislature.” Again, on the question of uniformity and equality of taxation, we find that in State Railroad Tax Cases, reported in 92 U. S. 576, it is held in the fifth point of syllabus that, “while the constitution of the state of Illinois requires taxation, in general, to be uniform and equal, it declares, in express terms, that a large class of persons engaged in special pursuits, among whom are persons or corporations owning franchises and privileges, maybe taxed, as the legislature shall determine, by a general law, uniform as to the class upon which it operates; and under this provision a statute is not unconstitutional which prescribes a different rule of taxation for railroad companies from that of individuals, nor does it violate any provision of the Constitution of the United States.” In the case, also, of Louisville & N. B. R. Co. v. State, 25 Ind. 177, that court held, “The Constitution does not require a uniform method of valuation of property for taxation, but only such regulations as shall secure a just valuation.” In determining how this end shall be secured, the legislature must exercise a discretion; and, unless the method adopted be clearly inadequate to secure the result, the courts can not interfere. So, also, in the case of Express Co. v. Seibert, 142 U. S. 339 (12 Sup. Ct. 250) the supreme court holds that the act of the legislature of Missouri of May 16, 1889, “To define express companies and to prescribe the mode of taxing the same and to fix the rate of taxation thereon,” imposes a tax only on business done within the state, and does not violate the requirements of uniformity and equality of taxation prescribed by the constitution of Missouri. Again, in the case of People v. Mayor of Brooklyn, 4 N. Y. 419, the court of appeals of New York held that “a statute which authorizes a municipal corporation to grade and improve streets, and to assess the expense among the owners and occupants of lands benefitted by the improvement, in proportion to the amount of such benefit, is a constitutional and valid law”; also, that “the power to tax implies a power to apportion the tax as the legislature shall see fit, and the power of apportionment has no limit, where there is no constitutional restraint.” See Railroad Co. v. Taylor, 52 Wis. 37 (8 N. W. 833)—a carefully considered case—where it is held that “the legislature has power to prescribe, not only the property to be taxed, but the rule by which it must be taxed, and the only limitation of that power is that the rule shall be uniform.” See, also, Weaver v. State, 89 Ga. 639 (15 S. E 840) which holds that a tax upon all business of the same class, which is uniform as to that class of business, is not unconstitutional. The presumption is in favor of the constitutionality of a statute, and the courts should give the statute eftect, unless it is clearly unconstitutional. It was so held in Slack v. Jacob, 8 W. Va. 612. The first point of the syllabus in that case holds that “it is the duty of the court to uphold a statute when the conflict between it and the Constitution is not clear, and the implication which must always exist, that no violation has been intended by the legislature, may require it, in some cases, where the meaning of the Constitution is in doubt, to lean in favor of such a construction of the statute as might not at first view seem most obvious and natural. Where the meaning of the Constitution is clear, the court, if possible, must give the statute such a construction as will enable it to have effect.” (2) “It is always to be presumed that the legislature designed the statute to take effect, and not to be a nullity.” (3) “Wherever an act of the legislature can be so construed and applied as to avoid a conflict with the Constitution, and give it the force of law, such construction will be adopted by the courts.”

In the case of Railway Co. v. Paull, 39 W. Va. 142 (19 S. E. 551) this Court held section 67, chapter 29 of the Code, so far as it allows an appeal from the decision of the board of public works to the circuit court, constitutional and valid. And while that was a mandamus case, to compel the judge of the circuit court to entertain an appeal from an assessment made by the board of public works, the constitutionality of the act in question was discussed and passed upon. Dent, Judge, in speaking for the Court, in that case, upon the character of the action of assessors, quotes from Welty on the Law of Assessments (page 37, § 25) as follows: “In the exercise of the functions and in the discharge of the duties of his office, an assessor acts both judicially and ministerially; that is, some of his acts are judicial; and some ministerial. When it becomes necessary to determine a question of law or fact, the act is judicial. It may be safely stated that in no instance does an assessor perform all the acts necessary to perfect the assessment of a single person or item of property without the exercise of acts eminently judicial iu their nature,” etc. And after commenting upon this quotation he concludes as follows: “It being the duty of the legislature to direct by law how the true values of properties should be ascertained (an investigation strictly judicial in its nature) and the legislature having to provide tribunals to discharge this important function in a just and impartial manner, and having provided for the original valuation by a proper assessment tribunal, what better could be done than to allow the action of these tribunals, at the instance of any one personally aggrieved, to be reviewed by the circuit court—a judicial body already in existence, and fully equipped to perform all necessary judicial functions. There can be but one conclusion in this case, and that is that it is not a question of doubt, but the law is in perfect accord with both the language and spirit of the constitution,” etc. I may add with propriety, in this immediate connection, that it is immaterial whether the assessment is made by the board of public works, or by the assessor of a district, so far as the legal propriety of an appeal is concerned, or the character of the court’s action upon an appeal may be defined. In both instances judicial action must be exercised. The legislature meant something when it required notice to be given to the prosecuting attorney when an application is made to the county court for relief from an erroneous assessment, and the statute plainly prescribes his duty when it says, “But he shall before any such application is heard give reasonable notice to the prosecuting attorney of the'county whose duty it shall be to attend to the interest of the state, county and district in the matter.” They were thus made parties to the controversy in the county court. And section 14 of chapter 112 provides than when an appeal shall be allowed from the county to the circuit court, “a copy of the order of allowance shall be served upon the opposite party.” This brought them in as parties to the controversy in the circuit court, which, we have seen, was a judicial controversy; and, this controversy being decided against them in the circuit court, section 1 of chapter 135 of the Code confers jurisdiction upon this Court, upon proper application, to review' the matter upon writ of error.

My conclusion, therefore, is that the circuit court erred in adopting a mode of ascertaining the value of the property of the Charleston & Southside Bridge Company in a manner different from that prescribed by section 63 of chapter 29 of the Code, and in placing said property upon the land books, instead of the personal property books, as required by section 68 of said chapter of the Code.

Our Constitution, in article X, s. 1, provides that “taxation shall be equal and uniform throughout the state, and all property, both real and personal, shall be taxed in proportion to its value, to be ascertained as directed by law.” In pursuance of this constitutional provision, the legislature has, in section 63 of chapter 29 of the Code, provided the manner in which the assessments of toll bridges and ferries throughout the state shall be made, so that the assessment of that class of property shall be uniform. In doing this the legislature has acted as it had a right to do in pursuance of said provision, and in our opinion the legislature, in enacting said section 63, violated no provision of the Constitution, and toll bridges aud ferries can only be legally assessed as therein prescribed.

For these reasons, and because said property was ordered to be placed upon the land books, in violation of the plain provisions of section 68 of said chapter, requiring such property to be placed on the personal property books, the judgment complained of must be reversed, with costs; and, this Court proceeding to render such judgment as should have been rendered by the circuit court, the appeal from the county court is dismissed, with costs, and the judgment of the county court is affirmed.