Commonwealth v. Schmelz

• Decision Date: 12 March 1914
• Citation: 81 S.E. 45,116 Va. 62
• Parties: COMMONWEALTH et al. v. SCHMELZ.
• Court: Virginia Supreme Court

(116 Va. 62)

81 S.E. 45

COMMONWEALTH et al.

v.SCHMELZ.

Supreme Court of Appeals of Virginia.

March 12, 1914.

1. Taxation (§ 552%*) — Compromise op Taxes—Authority of Auditor.

Code 1904, §§ 702, 702a, relating to the authority of the auditor to make adjustment of old and disputed claims on approval of the Attorney General and indorsed as approved by the judge of the circuit court of the city of Richmond, has no application to a compromise and settlement of a suit for taxes in a court of competent jurisdiction.

[Ed. Note.—For other cases, see Taxation, Cent. Dig. § 1067; Dec. Dig. § 552%.*]

2. Taxation (§ 552%*)—Compromise of Taxes—Authority of Auditor.

Where an auditor, acting for the commonwealth, agrees, with the consent of the Attorney General, to accept the sum awarded by the circuit court in settlement and discharge of all claims for taxes against a certain party, the agreement is binding on the commonwealth.

[Ed. Note.—For other cases, see Taxation, Cent. Dig. § 1067; Dec. Dig. § 552%.*]

3. Taxation (§ 552%*) — Compromise and Settlement—Persons Bound.

Where, in a proceeding to be relieved from an erroneous assessment of taxes, the state, county, and city claimed judgment for omitted taxes, an agreement by the auditor, acting for the commonwealth, to abide by the judgment of the circuit court, while binding on the commonwealth, has no binding force on the county and city.

[Ed. Note.—For other cases, see Taxation, Cent. Dig. § 1067; Dec. Dig. § 552y₂.*]

4. Taxation (§ 494*)—Omitted Taxes—Recoverable in Suit to Reduce Assessment.

Code 1904, § 508, relating to the collection of taxes upon omitted property, is applicable to taxes due to county, cities, and towns, as well as taxes due the commonwealth; and where, in a proceeding to be relieved from an erroneous assessment of taxes, claims for omitted taxes, are made by the commonwealth, county, and city, the county and city are entitled to recover taxes for the past years.

[Ed. Note.—For other cases, see Taxation, Cent. Dig. §§ 884-888; Dec. Dig. § 494.*]

5. Appeal and Error (§ 142*) — Right of Appeal—Cities—Counties—"Person."

Since counties and cities may sue and be sued, and their right of appeal has always been recognized, and in view of Code 1904, § 5, cl. 13, declaring that "person" may extend and be applied to bodies politic and corporate, as well as individuals, and section 3454, providing that a person, who thinks himself aggrieved by a judgment, decree, or order in a controversy concerning the right of the state, county, or municipal corporation to levy tolls or taxes, or involving the construction of a statute, ordinance, or county proceeding imposing taxes, may petition for a writ of error, etc., counties and cities have the right of appeal.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 914-919; Dec. Dig. g 142.*

For other definitions, see Words and Phrases, vol. 6, pp. 5322-5335; vol. 8, p. 7752.]

6. Taxation (§ 494*)—Recovery of Omitted Taxes—Discretion of Court.

Where an original application to be relieved from an erroneous assessment of taxes was brought in 1911, and in that proceeding the commonwealth, county, and city, claimed for omitted taxes for previous years, it was discretionary with the court to allow a recovery for the tax of 1912, which was admittedly due.

[Ed. Note.—For other cases, see Taxation, Cent. Dig. §§ 884-888; Dec. Dig. § 494.*]

Error to Circuit Court of Elizabeth City County.

Proceedings by Henry L. Schmelz against the Commonwealth of Virginia and others to be relieved from an alleged erroneous assessment of taxes. From the judgment rendered, defendants bring error. Reversed.

The Attorney General and S. Gordon Cumming and E. E. Montague, both of Hampton, for plaintiffs in error.

J. Winston Read, of Newport News, and Jno. N. Sebrell, Jr., of Norfolk, for defendants in error.

W. C. L. Taliaferro, of Hampton, for City of Hampton.

WHITTLE, J. This case is before us for the second time. The original proceeding ivas instituted by the defendant in error, Henry L. Schmelz, surviving and continuing partner of Schmelz Bros., bankers, to correct an alleged erroneous assessment of taxes and levies upon personal property of the partnership for the years 1891 to 1911, both inclusive. At the former hearing this court (114 Va. 364, 76 S. E. 905), among other things, held that "a taxpayer who comes into court, under the provisions of the statute of this state, to be relieved from paying more taxes than he claims he ought to pay, renders himself liable in that proceeding to pay all taxes with which he is chargeable in that jurisdiction upon a correct assessment of his property, and to this end the court may examine into and do all that the commissioner of the revenue is required to do under the provisions of sections 508 and 509 of the Code. The opinion concludes: "We are therefore of opinion that the court did not err in so far as it held that the plaintiff was not assessable with taxes in the county of Elizabeth City or in the city of Hampton upon the property of Schmelz Bros., employed in their partnership business in the city of Newport News, but that it did err in refusing to admit evidence tending to show that the said firm had property in the county of Elizabeth City and in the city of Hampton which was assessable with taxes in the said county or city, and which had not been assessed with taxes." Consequently the decision of the circuit court was reversed, and the case remanded for further proceedings not in conflict with the views expressed in the opinion of the court.

At the rehearing, the trial court ascertained that certain personal property belonging to the firm had not been assessed for taxation, state, county, district, or municipal, for the years 1886 to 1911, both inclusive. It ascertained that the principal sum due the commonwealth on account of such taxes amounted to $2,228.49. But the court certified that the property was omitted from no fault of Schmelz Bros., and therefore awarded the commonwealth the principal sum due, without interest.

With respect to the claims for taxes asserted on behalf of the county of Elizabeth City and the city of Hampton, the court was of opinion that under the decision of this court in the case of Whiting v. Town of West Point, 89 Va. 741, 17 S. E. 1, the omitted property was only liable for taxes due the county and city for the year 1912, and so ordered. To that order a writ of error was granted to the commonwealth, and also to the county of Elizabeth City and the city of Hampton.

We are met at the threshold of the inquiry with a motion by the defendant in error to dismiss the writ of error as having been improvidently awarded; the contention being that the commonwealth by its duly authorized officers, had agreed with the defendant in error to accept the sum awarded by the circuit court in settlement and discharge of all matters involved in the proceeding, and to abide the decision. This allegation is fully sustained by the correspond-ence of the parties and affidavits with respect to the recovery on behalf of the commonwealth, the amount of which was promptly paid by the defendant in error in accordance with the terms of the...