Charleston & S. Bridge Co v. Kanawha County Court.1

• Decision Date: 21 March 1896
• Citation: 41 W.Va. 658,24 S.E. 1002
• Court: West Virginia Supreme Court
• Parties: CHARLESTON & S. BRIDGE CO. v. KANAWHA COUNTY COURT.1

24 S.E. 1002

41 W.Va. 658

CHARLESTON & S. BRIDGE CO.

v.KANAWHA COUNTY COURT.¹

Supreme Court of Appeals of West Virginia.

March 21, 1896.

Constitutional Law—Taxation — Bridges and Ferries—Assessment—Uniform ity—Valuation —Fixation by Court—Jurisdiction—Real and Personal Property.

1. Section 63 of chapter 29 of the Code, which provides that the assessment of toll bridges and ferries shall be made by the assessor by ascertaining the annual value, and multiplying such annual value by 10, is not unconstitutional, under the provision of section 1 of article 10 of the constitution, which 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 ascertained as directed by law.

2. The legislature has power to prescribe the method by which the valuation of any class of property may be ascertained, and, whore the value of the same class of property is ascertained throughout the state in the same manner, such valuation cannot be regarded as unconstitutional for lack of uniformity or equality.

3. The constitution prescribes what property is to be taxed, and the legislature prescribes the manner in which it shall be taxed, which mode of taxation shall be equal and uniform as to all classes of property.

4. A tax upon all business of the same class, which is uniform as to that kind of business, is not unconstitutional.

5. 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. It is always to be presumed that the legislature designed the statute to take effect, and not to be a nullity.

6. Where the valuation of a toll bridge for taxation has been fixed by the assessor as provided for in section 63 of chapter 29 of the Code, neither the county court, on application to correct such assessment, nor the circuit court, upon appeal from the refusal of the county court to make such correction, can correct and fix the valuation of such toll bridge by taking the opinion of witnesses as to what would be a reasonable valuation of such toll bridge for taxation.

7. This court has jurisdiction, on writ of error from the judgment of the circuit court on such an appeal, to review the same, in a case of this character.

8. Section 63 of chapter 29 of the Code provides for the assessment of toll bridges, which includes the franchises of toll bridges under the last clause of section 1, art. 10, of the constitution, and provides for ascertaining the yearly value of a toll bridge. The value for taxation under that section is estimated from the earnings. It does not provide for assessing the real estate belonging to the bridge separately, and for that reason the legislature required the assessment to be placed on the personal property books.

(Syllabus by the Court.)

Error to common pleas circuit court of Kanawha county.

Petition by the Charleston & Southside Bridge Company to the county court, praying the correction of an assessment. There was an order dismissing the petition, and petitioner appealed to the circuit court, where the judgment below was reversed, and the relief prayed for was granted, and the state, the county, and the district of Charleston bring error. Reversed.

W. S. Laidley, A. C. Blair, and T. S. Riley, Atty. Gen., for plaintiffs in error.

Brown, Jackson & Knight, for defendant in error.

ENGLISH, J. On the 6th day of April, 1894, the Charleston & Southside 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 $22,000, and that the same property for the year 1893 was assessed upon the personal property books of said county at $50,000; the said assessment was very unjust, excessive, and unequal valuation, and that the same should be reduced to the said valuation of $22,000 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 filed, 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 $50,000 to $25,000, and fixed the valuation of said bridge at the sum of $25,000, 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 book * * * apply for relief to the county court of the county in which such books were made out; but 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 interests 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 Atthe date of the decision in the case of Low v. County tit,...