Bankers Pocahontas Coal Co. v. County Court of McDowell County

• Decision Date: 19 December 1950
• Docket Number: No. 10248,10248
• Citation: 62 S.E.2d 801,135 W.Va. 174
• Court: West Virginia Supreme Court
• Parties: . Supreme Court of Appeals of West Virginia

Page 801

62 S.E.2d 801

135 W.Va. 174

BANKERS POCAHONTAS COAL CO. et al. v. COUNTY COURT OF McDOWELL COUNTY.

No. 10248.

Supreme Court of Appeals of West Virginia.

Decided Dec. 19, 1950.

Syllabus by the Court.

1. A discrepancy between the number of acres actually contained in a tract of land and that returned for the purpose of taxation by the owner, the actual acreage being less than that shown by the return thereof, is not sufficient to require a reduction of the valuation thereof, where there is no evidence showing the assessment made by the assessor is in excess of the true and actual value of such tract considered as a whole in its decreased quantity.

2. Arbitrary or unjust action by an assessor in fixing the value of land must be shown by clear and cogent proof in order that the complaining taxpayer may be given relief from an allegedly excessive valuation.

3. The valuation of land for purposes of taxation on the theory that such reduction in value is necessary in order to comply with the constitutional requirement of equality and uniformity will not be reduced in the absence of proof that there is a plan of valuation applied generally to the same species of property situate in the same taxing unit, and that such plan of valuation has not been adhered to in assessing the land upon which such reduction is sought.

4. A showing of one element or factor involved in fixing the value of lands for taxation purposes is not a sufficient premise on which to base a conclusion that the valuation of such lands is disproportionate to other and similar lands situate in the same taxing unit.

Thornton G. Berry, Jr., Welch, for appellants.

Jack Marinari, Pros. Atty., Welch, William C. Marland, Atty. Gen., George W. Stokes, Asst. Atty. Gen., for appellee.

LOVINS, President.

This appeal is prosecuted to this Court by Bankers Pocahontas Coal Company, a corporation, and Crozer Coal and Land Company, a corporation, hereinafter respectively designated as 'Bankers' and 'Crozer', under the provisions of Code, 11-3-25, as amended by Chapter 41, Acts of the Legislature, Regular Session, 1933.

Bankers and Crozer contend that the valuations for tax purposes of certain tracts of land owned by them, situated in McDowell County, are excessive. The valuations on their lands fixed by the assessor were contested by Bankers and Crozer, and, after a hearing in the County Court of McDowell County, the valuations fixed by the assessor were sustained. Upon a statutory appeal to the Circuit Court of McDowell County the action of the county court was affirmed. This Court granted a statutory appeal to review the action of the circuit court.

Bankers contends that excessive valuations for tax purposes have been placed on three tracts of land owned by it in the assessments for the year 1949, there having been an increase for the year 1949 of ten per cent of the valuations on such lands as fixed for the year 1948. Bankers complains of the valuation fixed on one tract, designated as the 'Vaughan lease', returned for taxation as containing 982.98 acres. The objection to the valuation placed on that tract of land is based on the fact that the land was returned for taxation by the president and general manager of Bankers as 982.98 acres, whereas, in fact, said tract contains 808 acres, the return thus showing an excess of 174.98 acres.

The objections as to the two other tracts owned by Bankers are based on a comparison of the assessed valuations of said lands with other and similar lands owned by other persons, which are situate near or contiguous to Bankers land, such contiguous tracts of land being assessed at valuations less than the lands owned by Bankers. The second tract owned by Bankers, designated 'No. 4 Orkney', containing 1729.33 acres, is assessed for the year 1948, at $43.60 an acre, and the third tract, designated as 'No. 2 Cletus and Blackstone', containing 1336.46 acres, is assessed for the year 1948, at $35.97 an acre. The lands with which such two tracts are compared consist of nine tracts of land with assessment rates ranging from $2.21 an acre to $25.10 an acre, the average being $14.49 an acre.

Crozer makes like objections concerning ten tracts of land owned by it, which were assessed at various rates for the year 1949, ranging from $1.01 to $123.60 an acre, or an average of $72.10 an acre. The valuations placed on the Crozer land are compared with the valuations on eleven tracts of land owned by other persons, which range from .06 an acre to $6.06 an acre, or an average of $5.30.

No evidence was introduced as to the true and actual value of the lands owned by Bankers and Crozer; nor is there any evidence showing the true and actual value of the lands with which Bankers and Crozer are compared.

It is disclosed by the record that Bankers is receiving approximately eight thousand dollars a year as coal royalty, and an aggregate of three thousand dollars a year as delay rentals from lessees of oil and gas rights on its lands. Whether the coal royalty and delay rentals are derived solely from the lands here in question, or whether they are derived from those lands and other lands belonging to Bankers is not entirely clear.

The record shows that the tracts of land owned by Bankers and Crozer are on or near the main line of the Norfolk and Western Railway Company; that Bankers' lands have a large number of houses on them; and that a considerable portion of Bankers' lands is within the corporate limits of the town of Davy, which was at the time of the hearing herein in process of being incorporated or had been incorporated, the record not being clear whether such incorporation had been completed at that time.

There is likewise proof that some of the tracts of land owned by Bankers and Crozer had a small amount of mineable coal, and that some of such coal was being mined on January 1, 1949.

Semet-Solvay Division of Allied Chemical & Dye Corporation, a corporation, was a party to the hearings before the County Court and the Circuit Court of McDowell County, but for some undisclosed reason, Semet-Solvay did not prosecute an appeal to this Court.

As indicated above, Bankers and Crozer assign as error the action of the Circuit Court of McDowell County in upholding the valuations of their lands, as fixed by the County Court and the Assessor of McDowell County, West Virginia. Bankers and Crozer in support of such assignment make four contentions: (a) That the valuations fixed by the circuit court violate the provisions of the Constitution of this State relating to equal and uniform taxation; (b) that such valuations are erroneous and arbitrary; (c) that the valuations should have been reduced to those fixed for comparable and similar lands; and (d) that the valuations of their lands are disproportionate to the valuations of similar and adjacent lands.

Boards of equalization and review having been abolished, county courts, in lieu of such boards, now meet not later than the fifth day of July of each year for the purpose of reviewing and equalizing the assessments made by the assessor. Chapter 41, Article III, Section 24, Acts of the Legislature, Regular Session, 1933.

The statutory appeal to this Court provided for by Section 25, Article III, Chapter 41, id., is limited, as indicated by the following language: 'In tax cases, courts, as distinguished from administrative bodies, cannot properly consider the evidence of value, except in instances where it is plainly shown to have been arbitrarily and unjustifiably ignored, when the finding will be nullified.' Norfolk & W. Railway Co. v. Board of Public Works, 124 W.Va. 562, 567, 21 S.E.2d 143, 146. Fixing of the value of property for taxation purposes 'is primarily an executive or administrative function with which the courts will not interfere unless shown plainly to have been abused.' Norfolk & W. Railway Co. v. Board of Public Works, supra. See State v. McDowell Lodge, 96 W.Va. 611, 612, 123 S.E. 561, 38 A.L.R. 31. As to the distinction between various questions on jurisdiction of courts, see Pardee &amp Curtin Lumber Co. v. Rose, 87 W.Va. 484, 489, 105 S.E. 792.

Article V of the Constitution of West Virginia, providing that 'The Legislative, Executive and Judicial Departments shall be separate and distinct, so that neither shall exercise the powers properly belonging to either of the others; nor shall any person exercise the powers of more than one of them at the same time * * *', if strictly applied would require that the statute, authorizing consideration of the question here presented, be held unconstitutional. But under the theory of contemporaneous construction, this Court has assumed jurisdiction of proceedings involving the valuation of property for taxation purposes. See Norfolk & W. Railway Co. v. Board of Public Works, supra, and cases there cited.

Notwithstanding some indication to the contrary in the opinion in the case of Crouch v. County Court, 116 W.Va. 476, 181 S.E. 819, it is a general rule that the courts will not interfere with the exercise of the taxing power in the absence of 'a clear showing of the arbitrary abuse of that power that amounts to a mala fides purpose to disregard the principle of uniformity, or of practical confiscation.' Norfolk &...