Commonwealth v. Huntington

• Decision Date: 16 June 1927
• Citation: 138 S.E. 650
• Parties: COMMONWEALTH et al. v. HUNTINGTON et al.
• Court: Virginia Supreme Court

138 S.E. 650

COMMONWEALTH et al.

v.HUNTINGTON et al.

Supreme Court of Appeals of Virginia.

June 16, 1927.

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Procedure.]

[COPYRIGHT MATERIAL OMITTED]

Error to Circuit Court of City of Richmond.

Suit by Archer M. Huntington and another, executors of the estate of Arabella D. Huntington, deceased, against the Commonwealth of Virginia and C. Lee Moore, Auditor of Public Accounts. Order granting prayer of petition, and defendants bring error. Affirmed.

E. Warren Wall, of Richmond, for the Commonwealth.

Christian & Lamb, of Richmond, for defendants in error.

PRENTIS, P. The auditor of public accounts, acting under section 44¹/₂ of the Tax Bill (Acts 1922, p. 792, c. 460), assessed' a transfer tax of $102,784.80 against the estate of Arabella D. Huntington, deceased, who was a resident of California.

The executors admitted liability for $16,-171.41, but claimed a reduction of $86,613.39 as having been erroneously assessed and collected. This disputed portion of the tax was 2 per cent, of the total value of certain unregistered coupon bonds and past-due interest coupons therewith, owned by the nonresident decedent at the time of her death, then located in New York, and due by certain Virginia corporations.

The trial court granted the prayer of the petition, reduced the tax, and directed the auditor of public accounts to refund the amount claimed to the executors or their attorneys. It is from this order to which a writ of error, construed to be the statutory appeal, was allowed, and is being prosecuted here.

The questions presented require the construction of the Virginia statute, section 44¹/2 of the Tax Bill, subsections (1), (2), (3), and (9), which are printed in the margin, ¹

I. Certain errors or defects In procedure are assigned for the appellants.

(a) It is averred that it appears from the record that the application for relief by the executors was not filed within one year from the date of the assessment, the time prescribed by law. The sufficient answer to this objection is that the defect alleged does not so appear. The record is silent on this point. As no such defect appears, the objection cannot be entertained, because it was not made in the trial court. The reason, indeed the necessity, for requiring such objections to be made in the trial court, is manifest in this case, because it appears that if this objection had been so made it could have been then and there shown, without question, that this assessment was made August 13, 1925, while the application was filed November 24, 1925—that is, clearly within the year prescribed by the statute. This we state, because the counsel for the appellees have filed with their brief a copy of the official assessment, and there is no denial of the fact, so shown, in the reply brief for the commonwealth. While this cannot supplement the record, the fact is, under the circumstances of this case, accepted here as an admission which is inferred because the question was not raised in the trial court, and the case was there contested and decided upon its merits.

If this alleged defect, however, had actually appeared from the record, the objec-tion could have been made here for the first time as jurisdictional. Leesburg v. Loudoun National Bank, 141 Va. 244, 126 S. E. 196.

(b) It is objected that no authority was vested in the trial court to direct a refund of the taxes which had already been paid into the treasury. This depends, of course, upon the statute, the pertinent language of which, found in subsection 9 of section 44¹/₂ of the Tax Bill (Acts 1922, p. 795), reads:

"Such tax shall be determined by the auditor of public accounts who shall certify the same to the person or persons by whom the tax is payable and such determination shall be final unless the tax shall be reduced or increased upon application by the person assessed therewith, within one year from the date of such assessment, to the circuit court of the city of Richmond. Upon such application the procedure shall be as near as may be the same procedure prescribed by section 44 of this act for the correction of erroneous assessments of inheritance taxes, with the same right of appeal to the Supreme Court of Appeals of Virginia, either to the applicant or the auditor of public accounts as provided by law for appeals in other cases, except cases in which there is appeal as a matter of right."

Observe incidentally that this clause itself provides unequivocally for an "appeal" to this court under the general law, so that the reference to "procedure" under section 44 of the Tax Bill relates to procedure in the trial court. Turning to the record, then, we find that the application, hearing, and judgment in the circuit court in this case seem to have been strictly in accordance with that section (44), the last amendment of which is in Acts 1924, p. 461, c. 305. We find in subsection 14, of section 44, that express authority is given to the court to require the auditor of public accounts to refund to the aggrieved taxpayer the amount of the tax adjudged to be illegal, so that the question raised by this assignment is whether the word "procedure" in that portion of subsection 9 of section 44¹/₂, which has been quoted, should be construed to authorize such refund. A few citations may be helpful in construing the word "procedure" as there used.

In Kring v. Missouri, 107 U. S. 231, 2 S. CL 452, 27 L. Ed. 510, we find this:

"The word 'procedure, ' as a law term, is not well understood, and is not found at all in Bouvier's Law Dictionary, the best work of the kind in this country. Fortunately a distinguished writer on criminal law in America has adopted it as a title to a work of two volumes, Bishop on Criminal Procedure. In his first chapter he undertakes to define what is meant by procedure. He says: 'S. 2. The term "procedure" is so broad in its signification that it is seldom employed in our books as a term of art. It includes in its meaning whatever is embraced by the three technical terms, Pleading, Evidence, and Practice.' And in defining Practice, in this sense, he says: 'The word means those legal rules which direct the course of proceeding to bring parties into the court and the course of the court after they are brought in.' "

In Minor's Conflict of Laws, § 206, p. 509, this appears:

"The lex fori governs all matters relating to the procedure on the trial of causes, including the proper parties plaintiff and defendant, the process, pleadings and rules of practice, the court wherein the cause is to be tried, the admissibility and effect of evidence, the incidents of the trial and the appellate procedure—indeed, everything that pertains to the remedy."

There seems to be no good reason for doubting that when the General Assembly provided that the procedure for the correction of taxes erroneously assessed under this section 44% should be identical "as near as may be" with that provided in section 44, it included not only the method of bringing the parties to the litigation before the trial court, but also the relief which was to be there afforded. To limit the section so clearly designed to afford an adequate remedy by construing it to afford no relief, and to leave the aggrieved taxpayer, after having established his injury and right to recover, without any recovery, would be such a strained and novel interpretation that it cannot be adopted.

The General Assembly has not only failed to distinguish between the remedy in the trial court for the correction of erroneous assessments of inheritance taxes under section 44 and that for the correction of such assessments of transfer taxes upon the estates of nonresident decedents under section 44%, but has clearly undertaken to provide the same remedy and relief there, as far as practicable and appropriate. What possible justification then can there be to distinguish or differentiate between the two by a meticulous construction of the word "procedure"? Indeed, it seems to us the construction which we have indicated is obvious. We perceive nothing in the statute to sustain the contrary view, and therefore conclude that the same procedure for correction is provided for the nonresident taxpayer in the trial court, and hold that the statute clearly affords him the same remedy and relief. It follows from this that, in our view, the circuit court was empowered to give the full relief, and had jurisdiction, under subsection 9, to require the auditor to refund any transfer tax erroneously assessed and exacted under section 44%.

(c) It is claimed that even if the court had this plenary jurisdiction, the order is void, because it does not comply with the statutory requirements. Waiving the fact that the assignment is so vague that we might, under the rule, ignore it, we find that it refers to subsection 13 of section 44, and to this provision:

"The attorney for the commonwealth, or such other attorney as the auditor may designate, shall defend the application and no order madein favor of the applicant shall have any validity unless it is stated therein that such attorney did so defend; and the facts proved upon such hearing shall be certified."

We observe from the reply brief that the error claimed is that the order does not state the facts proved, the contention being that to be valid it is necessary that the facts proved appear in the order. We cannot agree that the statute should be so construed. It would bear no such construction if not punctuated, and the use of the semicolon before the last clause clearly determines the question. The facts proved in this case are certified. Unless they were, the appellants would have no standing in this court upon the merits, for there is no bill of exceptions or other certificate of facts. That the court intended to follow the statute and to certify the facts proved is apparent from the order itself, for it shows every fact otherwise required by the...