Kanawha Val. Bank, In re, 10952

• Citation: 144 W.Va. 346,109 S.E.2d 649
• Decision Date: 28 April 1959
• Docket Number: No. 10952,10952
• Court: West Virginia Supreme Court
• Parties: In re the Assessment of Shares of Stock of the KANAWHA VALLEY BANK.

Page 649

109 S.E.2d 649

144 W.Va. 346

In re the Assessment of Shares of Stock of the KANAWHA VALLEY BANK.

No. 10952.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 21, 1959.

Decided April 28, 1959.

Syllabus by the Court

1. Section 1, Article X, of the Constitution of this State is clear and unambiguous and prohibits the taxing of any one species of property higher than any other species of equal value.

2. The systematic assessment of money and shares of bank stock at a higher percentage of its true and actual value than that at which other species of property are assessed violates Section 1, Article X, of the Constitution of this State and is illegal.

3. A banking institution, whose shares of stock are assessed at one hundred per centum of true and actual value, while other property in the taxing unit is systematically assessed at a lower percentage of its true and actual value, is entitled to have its assessment reduced to comply with the provisions of Section 1, Article X, of the Constitution of this State.

4. Charleston & S. Bridge Co. v. Kanawha County Court, 41 W.Va. 658 ; Christopher v. James, 122 W.Va. 665 ; In re Hancock County Federal Savings & Loan Association, 125 W.Va. 426 ; In re Tax Assessments Against Charleston Federal Savings & Loan Association, 126 W.Va. 506 ; Bankers Pocahontas Coal Co. v. County Court, 135 W.Va. 174 ; In re Tax Assessments Against The National Bank of West Virginia at Wheeling and The Morris Plan Savings and Loan Company, 137 W.Va. 673 ; and In re Tax Assessment Against the Southern Land Company, Charles C. Dickinson, W.Va., 100 S.E.2d 555; are disapproved insofar as, and only insofar as, they are in conflict with the principles expressed in this decision.

5. The rule of stare decisis does not apply where the former decisions have misunderstood or misapplied a clear and unambiguous provision of the Constitution of this State.

6. Where there is a systematic plan to assess all property of a certain species at a particular per centum of its value, substantially less than actual value, a showing that there were sporadic variations to the plan of assessment will not deprive the owner of property of another species of his right to relief, under the provisions of Section 1, Article X, of the Constitution of this State, where the property of the latter was assessed at a substantially higher per centum of actual value than the approximate level of valuation of the other species of property of equal value.

Jackson, Kelly, Holt & O'Farrell, James K. Brown, Homer A. Holt, Charleston, for plaintiff in error.

W. W. Barron, Atty. Gen., Henry C. Bias, Jr., Asst. Atty. Gen., D. Boone Dawson, Charleston, for defendant in error.

John C. Morrison, Charleston, and John S. Stump, Jr., Clarksburg, amicus curiae on behalf of West Virginia Bankers Ass'n.

BROWNING, Judge.

This is a statutory appeal from a judgment of the Circuit Court of Kanawha County under the provisions of Code, 11-3-25, as amended, by the taxpayer, The Kanawha Valley Bank, a corporation, by which the trial court found that the true and actual value of the taxpayer's fifteen thousand shares of capital stock was $6,000,000, and assessed such shares at that amount for the purpose of levying an ad valorem tax thereon. On June 17, 1958, in a four to one decision of this Court, the judgment of the Circuit Court of Kanawha County was reversed and the case remanded to that court. On the 15th of December, 1958, upon petition of counsel for the taxing units of government affected, a rehearing was granted, two of the Judges of this Court being noted as voting to refuse the rehearing. The case was rebriefed, reargued and again submitted for decision on January 21, 1959. Although such a proceeding is no the law side, it is by statute, designated an 'appeal', and the parties will sometimes be referred to as appellant and appellees. The Assessor of Kanawha County has fixed the assessed value of these shares at $7,700,000. Upon an application for relief to the County Court of Kanawha County under the provisions of Code, 11-3-24, as amended, the County Court, sitting and acting as a board of equalization and review, heard testimony upon the contention of the taxpayer that the assessment was excessive, and that its stock had been assessed at one hundred per cent of its true and actual value, whereas other species of property in Kanawha County had been assessed at a lower percentage of its true and actual value, but denied the relief sought declaring by order 'that the assessment in all respects is correct * * *.' The trial court, pursuant to the authority vested in it by the provisions of Code, 11-3-25, as amended, by which it is empowered to review such an order of the County Court in a judicial capacity, and is also required to act in an administrative capacity and make such assessment as it believes is indicated upon the record made before the County Court, reduced the value of the shares for assessment purposes from $7,700,000 to $6,000,000 but refused to lower the percentage of the true and actual value of the property for assessment purposes 'at a lower percentage in accordance with the practice of the Assessor in using such lower percentages in assessing other species of property.' The trial court found that both the Assessor and the County Court had erroneously used the 'book value' method alone as the means of ascertaining the true and actual value of the stock of the taxpayer, which procedure had been followed by the Assessor pursuant to instructions from the State Tax Commissioner, whereas this Court had held in In re Tax Assessments Against the National Bank of West Virginia At Wheeling and The Morris Plan Savings and Loan Company, 137 W.Va. 673, 73 S.E.2d 655, that such method of ascertaining the true and sctual value of shares of stock of banking institutions, standing alone, was contrary to the provisions of Code, 11-3-14, as amended, which deals with assessments for ad valorem taxing of stock of banking institutions, national banking associations and industrial companies. Although the final order of the trial court shows that the 'State of West Virginia, the County of Kanawha, and Charleston Magisterial District and all other magisterial districts thereof concerned, jointly and severally, by counsel, excepted; * * *.', to the ruling by which the true and actual value of the shares of stock of petitioner was reduced from $7,700,000 to $6,000,000, no appeal was perfected by these governmental units from such action, and the taxpayer makes no complaint upon its appeal to the trial court's action in fixing the value of its shares of stock for the purpose of levying a tax thereon at $6,000,000. The trial court, in refusing to fix the value of the stock for assessment purposes at less than one hundred per cent of it true and actual value, pursuant to the taxpayer's contention that the evidence established that the Assessor had arbitrarily assessed other species of property in Kanawha County for taxation purposes at a percentage less than its true and actual value in contravention of the provisions of Section 1, Article X, of the Constitution of West Virginia, cited, as authority for its refusal to do so, decisions of this Court.

Thus the sole issue for determination by this Court is whether the trial court erred in holding that this taxpayer suffered a constitutional discrimination by having its property assessed for the payment of ad valorem taxes upon the basis of one hundred per cent of its true and actual value. The burden of establishing that fact was upon the taxpayer, and, unless that discrimination is shown by the evidence, the taxpayer cannot invoke the provisions of the Constitution or any statutory enactment. The provision of Section 1, Article X, of the Constitution, insofar as pertinent for consideration of that question, reads: 'Subject to the exceptions in this section contained, taxation shall be equal and uniform throughout the State, and all property, both real and personal, shall be taxed in proportion to its value to be ascertained as directed by law. No one species of property from which a tax may be collected shall be taxed higher than any other species of property of equal value; * * *.'

Code, 11-3-1, as amended, provides that: 'All property shall be assessed annually as of the first day of January at its true and actual value; * * *.' The verbatim language of this Section first appeared in the Acts of 1933, however, similar language had been used previously thereto and the substance has remained unchanged since Chapter 118, Acts of the Legislature, Regular Session, 1863.

This taxpayer can make no complaint of discrimination because property of the same species in Kanawha County is not assessed for taxation purposes in the same manner that its property is assessed. The record is clear that the stock of all other banking institutions in Kanawha County, and, indeed, in the State, with one possible exception, is assessed for taxation purposes at one hundred per cent of its true and actual value.

John M. Slack, Jr., at the time Assessor of Kanawha County, and now Congressman from the Sixth West Virginia Congressional District, testified at the hearing before the County Court. He was asked these questions and made these answers:

'Q. Having arrived at a value by the book value method, what percentage of that true and actual value have you assessed the stock? A. One hundred per cent.

'Q. What percentage of true and actual value have you assessed other property in Kanawha County for the year 1957? A. We have made an attempt to assess it at 40 per cent, according to Senate Bill 3.

'Q. Have you made any effort to assess other property in Kanawha County at 100 per cent of its true and actual value? A. None other than Class 1 property, and that, of course, we inherited from procedure carried on in the past. * * *

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'Commissioner Glenn: The question in my mind was whether...