City Of Norfolk v. Bell City Auditor

• Decision Date: 01 March 1928
• Citation: 141 S.E. 844
• Parties: CITY OF NORFOLK. v. BELL, City Auditor, et al.
• Court: Virginia Supreme Court

141 S.E. 844

CITY OF NORFOLK.

v.BELL, City Auditor, et al.

Special Court of Appeals of Virginia.

March 1, 1928.

Christian, J., dissenting.

Appeal from Circuit Court of City of Norfolk.

Suit by the City of Norfolk against James N. Bell, City Auditor, and others, for an injunction. From a decree dismissing the bill, plaintiff appeals. Modified and affirmed.

R. W. Peatross and D. Todd Wool, both of Norfolk, for appellant.

James E. Heath and N. T. Green, both of Norfolk, and Geo. Read Martin, of New York City, for appellees.

HOLT, J. Appeal from a decree of the circuit court of the city of Norfolk. Decree for defendants. Plaintiff appeals.

By an order entered in the corporation court of the city of Norfolk on September 12,

1924, W. D. Southall, Robert Van Denbergh, W. E. Dear, W. Ludwell Baldwin, S. A. Woodward, and Edgar L. White were appointed assessors to "assess the value of lands and lots, together with the improvements thereon, within the corporation of the city of Norfolk." Woodward, Dear, Baldwin, and White qualified on September 22d, Van Denbergh on September 23d, and Southall on September 25th, and immediately entered upon the discharge of their duties.

Relative to their compensation to be paid by the city, the city council, on January 20,

1925, adopted the following ordinance:

"Be it ordained by the council of the city of Norfolk:

"Section 1. That the pay of the assessors appointed by the corporation court of the city of Norfolk, Virginia, for the assessment of real estate in the city of Norfolk during the year 1925 be fixed as follows:

"Six assessors at $5,000.00 each $30,000.00 payable in equal semimonthly installments as the salaries of other officers of the city are paid.

"Sec. 2. That the said board of assessors be and they are hereby directed, for the compensation hereinabove provided, to assess all city owned real estate, all nontaxable real estate, and all the real estate of public service corporations within the city of Norfolk.

"Sec. 3. That the rates of pay provided for herein are subject to the following conditions:

"First. That all notes, books, papers, and any other data that may be used by the assessors in the work of the reassessment shall be the property of the city of Norfolk and upon completion of the work, shall be deposited in the office of the commissioner of the revenue, where it shall be subject to public inspection.

"Second. That the assessors shall make monthly reports to the city manager showing the progress of the work.

"Sec. 4. That this ordinance, being an emergency ordinance, shall be in force from and after its adoption."

Due to the magnitude of the work, it soon became apparent that it would be necessary to extend the time for its completion, and on May 13, 1925, this time was extended by the corporation court of that city to December 1, 1925; that being the extreme limit of extension allowed by statute. The assessors were unable to complete their work by that date, and did not complete it until February 13, 1926. Their final report was filed on March 9, 1926. In it they ask that each assessor be allowed as additional pay $2,450. Responding to this request, the city council, on April 6, 1926, adopted the following ordinance:

"Whereas, on the 12th day of September, 1924, the corporation court of the city of Norfolk appointed W. D. Southall, Robert Van Denbergh, E. L. White, W. Ludwell Baldwin, S. A. Woodward, and W. E. Dear, as assessors to assess the value of all lands and lots, together with improvements thereon within this city, and on September 25, 23, and 22, 1924, they qualified as such before said court and entered upon their duties as assessors; and

"Whereas, on the 20th day of January, 1925, an ordinance was adopted by the council fixing the pay of each of the assessors at $5,000 for the year 1925; but at the time said ordinance was adopted it was distinctly understood that it was not to be final and conclusive as to the full pay of Messrs. Southall and Van Denbergh, and that the question of further pay to each of them was reserved for further consideration and action after the work was accomplished; and

"Whereas, all of said assessors rendered valuable services to the city of Norfolk from the date of their qualification in September, 1924, to January 1, 1925, and from December 1, 1925, to March 9, 1926, when they rendered their final report to the council, for which they have not yet received any compensation whatsoever; and

"Whereas, the said W. Ludwell Baldwin furnished to the city, while said assessment was being made, the use of his automobile at an expense to himself of $800, for which no compensation has been made to him:

"Therefore, be it ordained by the council of the city of Norfolk:

"Section 1. That W. D. Southall and Robert Van Denbergh do each receive from the city of Norfolk the further sum of $2,500.00 for his services in this behalf payable at once by the treasurer of the city.

"Sec. 2. That E. L. White, W. Ludwell Baldwin, S. A. Woodward, and W. E. Dear do each receive from the city of Norfolk the further sum of $1,700.00 for his services in this behalf, payable at once by the treasurer of the city.

"Sec. 3. That, if after the said payments have been made, there should remain any balance of the fund appropriated for the said assessment, the treasurer of the city is directed to pay out of said balance the sum of $800.00 to the said W. Ludwell Baldwin as compensation for the use of said automobile, or, if said balance should not equal $800.00, then the whole thereof to the said W. Ludwell Baldwin for the purpose aforesaid."

It is to enjoin the payment of the sums so allowed that this suit is brought. Dear, Baldwin, Woodward, and White answered and demurred. Van Denbergh and Southall each filed separate demurrers. Evidence was taken, and the cause came on to be heard both upon the demurrers and upon its merit The court, after striking out certain evidence asincompetent, sustained the demurrers and dismissed the bill.

In the petition for appeal is this statement:

"This case was fully matured in the court below. Answers were filed, depositions were taken, and the whole record is here before the court. This court should therefore, pursuant to section 6365 of the Code, enter a final decree on the merits and not remand the case to the lower court."

The Constitution of Virginia, § 171, provides:

"The General Assembly shall provide for a reassessment of real estate, in the year 1905, and every fifth year thereafter."

It follows that the actual assessment in this case had to be made "in the year" 1925, but the Legislature, in recognition of the fact that certain preliminary work might at times be necessary, provided that the courts should, "on or before the 1st day of January" of the assessment year appoint the necessary assessors (C6de, § 2233), and in section 2244 it said that:

"The assessors shall, immediately after their appointment, proceed to examine all lands and lots assessable by them, with the improvement thereon, within their respective counties, districts and corporations, and shall, upon examination, ascertain and assess the fair market value thereof."

Unless this statute is unconstitutional, we have legislative authority for the commencement of work before the beginning of the assessment year.

Under familiar rules, a statute is not to be declared unconstitutional unless it is absolutely necessary, and so we reach the conclusion that the examination might begin before the assessment year commenced, although the actual assessment had to be made within the year itself. The assessors are to begin work "immediately" after their appointment. This word is to be construed in the light of the circumstances in which it is used. 2 Words and Phrases, Second Series, page 947. Whatever it means, it must be something different from the "1st of January, " or the Legislature would have said the work should begin on that day. This provision of the general law is not changed by the fact that the order of appointment provided they, the "assessors, should enter upon their duties on January 1, 1925."

The Code, § 2250, provides for a per diem payment to be paid in part by the state and in part by the counties or corporations. Of course, this compensation would not begin to run until they went into office. That date must be certain when the per diem is allowed. It is interesting to note that the vigilant auditor of public accounts has paid to these assessors this per diem for services rendered before January 1, 1925. These payments were approved by the plaintiff and by its able coun sel, all of which they now say is wrong. It amounts to this: They said to the state, "You and I must pay for each day's work done in 1924, and this account setting out your part of what is due is correct." What weight attaches to the acts of these public officials?

In Smith v. Bryan, Mayor, 100 Va. 199, 40 S. E. 652, the court said:

"It is a rule of construction that, if a statute is of doubtful import, a court will consider the construction put upon the act when it first came into operation, and that construction, after lapse of time, without change either by the Legislature or judicial decision, will be regarded as the correct construction. Sutherland on Stat. Con. § 307; Anable v. Com., 24 Gratt. [65 Va.] 563, 566; Lewis v. Whittle, 77 Va. 415, 422; Mangus v. McClelland, 93 Va. 786, 789 .

"So, also, the practical construction given to a statute by public officials, and acted upon by the people, is not only to be considered, but, in cases of doubt, will be regarded as decisive. It is allowed the same effect as a course of judicial decision. The Legislature is presumed to be cognizant of such construction, and, when long continued, in the absence of legislation evincing a dissent, the courts will adopt that construction."

Plaintiff earnestly insists that the term of office begins on January 1st of the assessment year. The statute does not say so, and the constitutional...