Virginia & T.R. Co. v. Washington County

• Decision Date: 25 July 1878
• Citation: 71 Va. 471
• Court: Virginia Supreme Court
• Parties: VA. & TENN. R. R. CO. v. WASHINGTON COUNTY.

71 Va. 471

VA. & TENN. R. R. CO. v. WASHINGTON COUNTY.

Supreme Court of Appeals of Virginia.

July 25, 1878

Absent, Burks, J.

1. The constitution of the state does not authorize the county authorities to assess property for taxation and levy taxes upon it independent of the action of the legislature.

2. Under the present legislation of the state the county authorities can only levy a tax upon such property as by law is assessed with state taxes in the county.

3. Under the present legislation of the state, county authorities cannot levy a tax on the real estate of railroads in the county, either for county, township, school or road purposes.

These were applications by the Virginia and Tennessee Railroad Company to the county court of Washington County, to be exonerated from assessments of taxes for county, township school and road purposes, upon their real estate in the county, consisting of that part of their road lying in said county. It appears that the several township assessors had placed the said land on their books, at a valuation fixed by them, and the tax-tickets had been issued. And thereupon the railroad company presented their petition to the court to be exonerated from the payment of these taxes. One of the cases refers to the taxes assessed in 1871, and only refers to the county and township taxes, which alone seem to have been assessed against the company in that year. The other refers to the taxes for the year 1873, and refers to the taxes for county, township, school and road purposes.

The county court refused to exonerate the railroad company from the payment of the taxes, and these judgments were affirmed by the circuit court. And thereupon the railroad company applied to a judge of this court for a writ of error; which was awarded. The only question in the cases is the authority of the county officials to levy the tax.

J Alfred Jones, York & Fulkerson, for the appellant.

White & Cummings and Campbell, for the appellee.

OPINION

STAPLES, J.

At the time of the commencement of this controversy, in the year 1871, the Virginia and Tennessee Railroad Company was required, by act of the legislature, to report annually to the auditor of public accounts the estimated value of all its real and personal estate of every description. It was also required to report quarterly the net earnings of the road for the three preceding months, and at the same time to pay into the treasury of the state the taxes imposed by law. So that the company, instead of being assessed in the different counties in which its road was located, was assessed as an entirety.

The assessment for state taxes was not made, as in ordinary cases, by the township assessors, but by the company itself to the auditor of public accounts, and the taxes were paid, not to the county treasurer, but directly into the state treasury.

The same provisions were applied to the other railroad companies and canal companies, and, with some modfications, to the insurance and telegraphic companies doing business in the state. This mode of assessment and taxation has been continued and is still pursued by the legislature. Acts of 1869-70, page 312; Acts of 1870-71, page 93.

In the year 1871, the County of Washington claimed the right to impose the county levies upon the property of the Virginia and Tennessee Railroad Company in that county, and it caused to be assessed for that purpose the road-bed and other real estate within its limits. This claim was resisted by the company, but was sustained both by the county and circuit courts of that county. The case is brought here by writ of error to the judgment of the last-named court. The grounds upon which the parties respectively rest their pretensions will be considered in the course of this opinion.

An examination of the various acts of the legislature on the subject will show that for many years the county levies and poor rates were confined to the titheables within their limits. Real and personal property was not made the subject of county levy until long after the revisal of 1819. At what precise period this was done I have not been able to ascertain, as the acts of the general assembly showing the fact cannot be had in this place. It was probably as far back as the year 1824 or 1825. See 2 Rev. Code 1819, page 63; Code of 1849, page 277, sec. 4. But under all the acts subjecting property to county levies, the levy in every case was limited to those subjects assessed with state taxes within the county. Under former constitutions and laws the practice was for the justices of the county, a majority being present, to settle the accounts of the county, and to proceed to lay the levy upon property assessed with state taxes according to the land and property books as made out by the commissioner of the revenue for state purposes. The result was that under no circumstances could there be a county levy upon property unless it was assessed within the county for state taxation. This was the uniform rule, never departed from prior to the adoption of the present constitution. It is claimed, however, that that instrument has changed the law upon this subject, and that power is now conferred upon the county authorities respectively to lay the county levies upon all subjects of taxation not specially exempt under the constitution, independently of legislative sanction, and whether such subjects are or are not assessed for purposes of state taxation.

It will be admitted that when an enactment, constitutional or legislative, is relied on as effecting a radical change in the policy of the government, as pursued for forty years--a policy founded upon sound reason and common justice--the language of such enactment ought to be very explicit in its terms. More especially is this true when applied to the subject of taxation, a subject peculiarly within legislative discretion, involving the highest attributes of sovereignty and affecting all classes and conditions of society. The legislature is invested with complete power over the subject of taxation, except so far as may be otherwise provided in the constitution. On the other hand, the counties are mere auxiliaries of the government, established simply for the more effective administration of justice; and the power of taxation as confided to them is a delegated trust, and is to be strictly construed. They act not by virtue of any inherent power, but as mere agencies of the state. City of Richmond v. Daniel, 14 Gratt. 385; 21 Gratt. 604, 617.

In this case it is claimed that an independent sovereign power not only of imposing taxes, but also of designating the subjects of taxation, is conferred upon each board of supervisors in every county and township of the state. It cannot be going too far to say that the men composing these boards are not generally elected with reference to such duties, nor are they qualified by their pursuits, information or position for the exercise of a trust so delicate and responsible. It is difficult to believe it was ever intended to confer upon these boards a power which the state would never bestow upon her magistrates at a time when the county court was composed of some of the most intelligent and responsible citizens of the state.

The provision of the constitution relied on as conferring this power is found in section 2, article 7, of that instrument. That section, after providing that each county shall be divided into townships, in each of which there shall be annually elected one supervisor and certain other officers therein named, declares: " The supervisors of each township shall constitute the board of supervisors for that county, and shall assemble at the court-house thereof on the first Monday of December in each year, and proceed to audit the accounts of said county, examine the books of the assessors, and regulate and equalize the valuation of property, fix the county levies for the ensuing year, apportion the same among the several townships, and perform such other duties as shall be prescribed by law."

The words relied on as conferring the power in question are " to fix the county levies for the ensuing year, and apportion the same among the various townships." The learned counsel for the county of Washington, in commenting upon these words, insists they confer upon the supervisors authority to ascertain the levy, to establish a levy and to impose a levy, and to divide the same among the several townships; and that this is but an exercise of the taxing power under the constitution. All this may be conceded, and the question still arises, how are the supervisors to ascertain the subjects of taxation for the county levy? To what source are they to look for the necessary information to guide them with respect to the taxable property? The answer is found in the section already cited, which declares they shall " examine the assessors' books." And a subsequent section of the same article provides that the general assembly, at its first session after the adoption of the constitution, shall pass such laws as may be necessary to give effect to the provisions of this article. The legislature accordingly provided for the election of assessors; it prescribed that their duties and powers should be the same as those of the former commissioners of the revenue; it required them to assess the property of their respective townships; to make out the land and property books in the manner required of the commissioners of the revenue--a copy of which was to be sent to the auditor of public accounts, another delivered to the county treasurer, and another to the clerk of the county for the use of the board of supervisors. Acts of 1869 and 1870, pages 80 and 282. These are the books to which the constitution refers, by which the state taxes are...