BANK v. TOWN Of PHILIPPI.
| Decision Date | 15 November 1898 |
| Citation | 38 W.Va. 219 |
| Parties | TYGART'S VAL. BANK v. TOWN OF PHILIPPI et al. |
| Court | West Virginia Supreme Court |
If a municipal corporation in taxing property acts ultra vires by taxing property which it has no right to tax, beyond the limit fixed by the organic law conferring the power to tax, a court of equity will on a bill filed by the owner of the property so illegally or excessively taxed enjoin the collection of the taxes illegally assessed.
A court of equity has jurisdiction in such a case to remove a cloud from the title of real estate where the property assesse1d is partly of that character. It also has jurisdiction to restrain the collection of such taxes so illegitimately assessed because the action of the municipal corporation was ultra vires.
W. T. Ice and Dayton & Dayton for appellant:
I. Cloud on Title Code c. 47, s. 35; 16 W. Va. 527; 23
II. Ultra Vires Action. Dill. Mun. Corp. (3d Ed.) § 922;
8 Eng. Chy. (4 Myl. & Craig, 249); 28 W. Va. 667; Code c. 29, s. 100; Code c. 47, s. 81.
J. II. Wools for appellee cited: Code c. 188, s. 18; Code c. 47, s. 86; C de c. 110, s. 2; 9 W. Va 162; 26 W. Va. 583; 7W. Va. 329; 35 W. Va. 458; Cool. Tax. (2d Ed.) 860, 747, 753, 758, 759, 762; High Inj. 365, 366;' 14 N. Y. 535; 48 X. Y. 518; 24 W. Va. 615; Id. 283; High Inj. §§ 484, 485, 487; 23 W. Va, 667; 18 W. Va. 472; 75 Id. 292; 49 Cal. 414; Code c. 29; 9 Cow. 507; 15 Johns. 380; 8 How. (IT. S.) 576; 1 McCord 546; 10 Ga. 190; 1 II. & M. 8; 6W. Va. 107; 11 W. Va. 694; 22 W. Va 356; p't 1, Syl English, President:
This was a suit in equity, Brought by the Tygart's Valley Bank, a corporation formed under the laws of the State of West Virginia, against the town of Philippi, a municipal corporation under the laws of this state, in the Circuit Court of Barbour county, seeking to restrain and enjoin the defendant from the collection of one hundred and forty five dollars, which is the residue of a tax-ticket of six hundred and five dollars and seventy five cents, which the plaintiff claims the defendant exceeded its legal powers in assessing against its real and personal estate, which was assessed the same year for state, county and district purposes at forty six thousand and seventy five dollars.
The bill alleges in substance, that the plaintiff is a duly chartered corporation under the laws of the state of West Virginia and engaged in a general banking business in said town of Phillippi; that said town is a municipal corporation under the laws of the State of less than ten thousand inhabitants; that the plaintiff is the owner in fee of a lot within the limits of said municipal corporation, upon which stands a two-story brick building, in which its general banking business is conducted; that said banking building and lot, upon which the same is situated, are assessed for the year 1892 for state, county and district taxation purposes at the value of one thousand and seventy five dollars and the said plaintiff is further assessed for state, county and district purposes as and for its personal property and value of its stocks, bonds, etc., for the same year upon a valuation of forty five thousand dollars, making a total valuation of forty six thousand and seventy five dollars taxable property within the limits of said municipal corporation assessable and subject to taxation as shown by the assessor's books of said county, and as regularly assessed for state, county and district purposes as aforesaid; that both by the general law of this state governing cities, towns and villages of less than ten thousand inhabitants, as also by a district ordinance of said municipal corporation, the town of Philippi, it is expressly provided that all tax-levies for the purposes of said municipal corporation shall be made upon values assessed for state and county purposes, and not otherwise; that notwithstanding these plain provisions of the law of the state and the ordinances of the said town the said defendant corporation acting hy and through its town-council on the day of, 1892, appointed the defendant John II. Daniels assessor for said town, and the said Daniels, utterly disregarding said law and his duty in the premises, and wholly ignoring the assessment for state and county purposes, assessed the real property of the plaintiff at one thousand and seventy live dollars and the personal property, stocks, bonds, etc., of plaintiff at fifty nine thousand five hundred dollars, or a total assessment of sixty thousand five hundred and seventy five dollars upon the real and personal property of plaintiff, being an excess of fourteen thousand five hundred dollars over the assessment made for county and state purposes; and that the said municipal corporation subsequently upon said illegal assessment made by said Daniels levied a tax against the said plaintiff for municipal purposes of one dollar upon the one hundred dollars of said value and assessment ascertained by said town assessor Daniels, and caused a tax-bill for the sum of six hundred and five dollars and seventy five cents to be made out and placed in the hands of the said John H. Daniels, whom they had also appointed tax-collector, for collection; and that, the said Daniels had not only demanded payment thereof, but had been actively engaged in seeking to enforce collection.
Plaintiff also alleged that under the organic law of the state said municipal corporation was prevented from levying a higher rate than one dollar on the one hundred dollars of values ascertained for state and county purposes, and by the same laws of the state all assessments, fines and penalties imposed by the authorities of such municipal corporations were expressly made liens upon the real estate and as such liens have priority over all other liens except the liens for taxes due the state, county, and district; and plaintiff charged that the illegal levy so made and based upon the illegal assessment aforesaid constituted a lien upon the real estate of the plaintiff situated within the limits of said municipal corporation.
Plaintiff further alleged, that recognizing the right of said defendant corporation to levy a rate of one dollar upon the hundred upon the values ascertained for state and county purposes the plaintiff on the 17th day of December, 1892, before the institution of this suit tendered to the said John If. Daniels through its agent and cashier the sum of four hundred and sixty dollars and seventy five cents, the amount of one dollar on forty six thousand and seventy five dollars, the value of the real and personal estate as assessed against it for state and county purposes, which tender was made by said plaintiff to be in full of the assessment for the said year 1892 due from it to the said corporation; that the said John II. Danieh, when said tender was made, refused to accept the same as being in full of said assessment and levy, but unlawfully seized upon the same, stated it should be credited upon said tax-bill, and was seeking to collect the remainder of said bill, to wit, the sum of one hundred and forty five dollars from the plaintiff.
The plaintiff also charged, that the remaining portion of said tax-bill was wholly illegal, null and void, but that the same constituted a cloud upon the title of the said plaintiff's real estate; and the plaintiff prayed that the defendants might be enjoined from collecting the remaining one hundred and forty five dollars of said tax-bill until the matters therein set forth might be enquired of, and that they might be perpetually enjoined and restrained from its collection, and the cloud thereof on the title to plaintiff's said real estate be wholly removed, etc.
The defendants filed a demurrer to the plaintiff's bill and also filed their answers, putting in issue the material allegations of said bill, and gave notice of a motion to dissolve said injunction in vacation, which motion having been heard on the 28th day of January, 1898, the demurrer to saiel bill was sustained, the injunction was dissolved; and from this decree the plaintiff applied for and obtained this appeal.
The first error assigned and relied on by the appellant is the action of the court in sustaining said demurrer to the plaintiff's bill. Looking merely to the form of the bill, we find it in all respects conforms to the statute as prescribed in section 27 of chapter 125 of the Code. It is however, contended by counsel for the appellees that the demurrer should have been sustained for want of equitable jurisdiction.
Xow, it is charged in the bill that both by the general law of this state governing cities, towns, and villages of less than ten thousand...
To continue reading
Request your trial