Commonwealth v. Ferries Co

• Decision Date: 14 June 1917
• Citation: 92 S.E. 804
• Parties: COMMONWEALTH. v. FERRIES CO.
• Court: Virginia Supreme Court

(120 Va. 827)

92 S.E. 804

COMMONWEALTH.

v.FERRIES CO.

Supreme Court of Appeals of Virginia.

June 14, 1917.

Error to Circuit Court of City of Richmond.

Mandamus by the Ferries Company against the Commonwealth. Peremptory mandamus was awarded, and the Commonwealth brings error. Affirmed.

The Attorney General for the Commonwealth.

R. R. Hicks, of Norfolk, for defendant in error.

WHITTLE, P. This is a mandamus proceeding instituted by the Ferries Company of the city of Norfolk to compel the auditor of public accounts to draw his warrant for the sum of $992.40 in its favor on the treasurer of that city pursuant to an act of the General Assembly approved March 23, 1912. Acts 1912, p. 684. To an order of the trial court awarding a peremptory mandamus as prayed for, this writ of error was granted.

The defense rests solely upon the allegation that the act is unconstitutional. It is contended:

1. That it violates section 63 of the Constitution (Code 1904, p. ccxxiii), which provides that:

"The General Assembly shall not enact any local, special, or private law in the following cases: * * *

"9. Refunding money lawfully paid into the treasury of the State or the treasury of any political subdivision thereof."

The general rule is well settled that taxes voluntarily paid cannot be recovered back in the absence of a statute providing for their repayment. Virginia Brewing Co. v. Commonwealth, 113 Va. 145, 73 S. E. 454. That principle, of course, does not apply where repayment is made pursuant to a valid statute.

It is true that the act of 1912 is a special or private act, yet that circumstance, standing alone, does not affect its constitutionality. To render it obnoxious to clause 9, it must provide for refunding money lawfully, not unlawfully, paid into the treasury. In the absence of constitutional limitation upon its powers, the right of the Legislature to refund taxes paid, even though voluntarily paid, is unquestioned. Although the Legislature may not be compellable to refund an amount so paid, it may do so without compulsion. Such acts are not infrequent; and it is settled law that a valid appropriation may be made to discharge a merely moral obligation. United States v. Realty Co., 163 U. S. 427, 16 Sup. Ct. 1120, 41 L. Ed. 215; Civic Federation v. Salt Lake County, 22 Utah, 6, 61 Pac. 222.

The preamble of the act recites that the taxes had been adjudged by the circuit court of Norfolk to be illegal, and the property of the Ferries Company nonassessable for state taxation. The point is well made that this was a suit for an injunction involving state taxes, but that the state was not a party; and, moreover, that such a suit could only be brought in the circuit court of the city of Richmond. A state can only be sued by a citizen upon such terms as it is pleased to prescribe, and the circuit court of the city of Richmond alone has been given jurisdiction in that class of cases. Johnson v. Hampton Institute, 105 Va. 319, 54 S. E. 31. Nevertheless, the fact that the preamble of the act is not true in law is immaterial. "The preamble to a statute is no part of it and cannot enlarge or confer powers, or control the words of the act unless they are doubtful or ambiguous." Yazoo R. R. v. Thomas, 132 U. S. 174, 10 Sup. Ct. 68, 33 L. Ed. 302. Not being an essential part of the statute, they may be altogether omitted.

By the act of 1912, the Legislature has seen fit to direct the refunding of the sum paid on account of these taxes; and, in the absence of constitutional restraint, it was acting within its powers. Subject only to such restriction, the power of the Legislature over state funds is plenary. 36 Cyc. 882. Clause 9, as we have seen, only prohibits the. Legislature from refunding by private act money lawfully paid into the treasury. The Constitution imposes no limitation upon its power to refund money unlawfully paid or collected. The fact that the Constitution in terms prohibits the one and is silent as to the other creates a strong presumption that it was not intended to trench upon the absolute control of the Legislature in its management of the business of the state with respect to refunding money unlawfully paid into the treasury.

In this instance it is not denied that the tax was illegally levied, but the assertion is that the fact of its illegality had not been judicially determined. That circumstance Is wholly immaterial. The Constitution does not require judicial ascertainment of an undisputed fact as a precedent condition to legislative action in such case. In all cases involving questions of constitutional restriction, the Legislature, necessarily, in the first instance, must determine for itself whether a contemplated act is constitutional, though ultimately it may become a judicial question to be. decided by the courts. Nor is this primary determination by the Legislature as to the validity of an act violative of the fundamental principle of republican government that legislative, executive, and judicial power ought to be kept distinct and separate, except in so far as the action of one is intended to constitute a check upon the action of the others in the sense of keeping them within proper bounds.

In the present case the foregoing principle has been applied with respect to the act of 1912. Therefore we conclude that the Legislature has not transcended its power in deciding for itself, in the first instance, that these taxes were illegally collected, but in so doing it was exercising a usual and necessary legislative function which is subject only to final review and determination by the courts. 36 Cyc. 883, S85, 886.

It may also be observed in this connection that the...