Norfolk v. County Court Of Mingo County

• Decision Date: 17 June 1941
• Docket Number: (No. 9201)
• Citation: 123 W.Va. 461
• Parties: Norfolk and Western Railway Company et al. v. CountyCourt of Mingo County, T. B. Varney, President, et al.
• Court: West Virginia Supreme Court

123 W.Va. 461

Norfolk and Western Railway Company et al.

v. CountyCourt of Mingo County, T. B. Varney, President, et al.

(No. 9201)

Supreme Court of Appeals of West Virginia.

Submitted May 20, 1941.

Decided June 17, 1941.

Supersedeas

When an order for a levy entered by a county court is attempted to be challenged by a proceeding under the provisions of Section 22, Chapter 67, Acts of the Legislature of 1933, Second Extraordinary Session, the issuance of a writ of supersedeas is a condition precedent to the exercise of jurisdiction by a circuit judge.

Appeal from Circuit Court, Mingo County.

Proceeding by the Norfolk & Western Railway Company and others against the County Court of Mingo County and others, to attack order laying tax levy and special assessment. From an order dismissing the proceeding, the commissioners appeal.

Affirmed.

Fox, Judge, dissenting.

F. M. Rivinus, Joseph M. Crockett and W. Broughton Johnston, for plaintiffs in error.

Lafe B. Chafin and O. C. VanCamp, for defendant in error.

Kenna, President:

This is a proceeding brought by the Norfolk & Western Railway Company and twenty-three other residents of Mingo County under Code 1931, 11-8-9 (amended and reenacted as Section 22, Acts 2nd Ex. Sess. 1933, Chapter 67; Michie's 1937 Code, 11-8-22) for the purpose of attacking the order of the county court laying the 1939 tax levy for that county, and including therein a special assessment authorized by more than sixty per cent of the voters of Mingo County on the eighteenth day of the preceding July. The petition was filed in the circuit court on the sixteenth day of September, 1939, and on September eighteenth, an order was entered awarding a writ of supersedeas against the Commissioners of the County Court of Mingo County, the same order directing them to appear to show cause "why part of said levy order of August 15, 1939, as prayed for in said petition, should not be set aside, vacated and annulled." No writ of supersedeas was issued but a copy of the order filing the petition and directing it to issue was served upon the members of the county court.

There was no appearance until the twenty-sixth day of January, 1940, when the individual members of the court filed a plea in abatement setting up the fact that the court as a corporate body had not been made a party defendant.

The county court having been made a party, the respondents appeared apparently in response to the order to show cause, depositions were taken and on May sixth the matter was submitted but not passed upon until the nineteenth day of November, 1940, when the court denied the prayer of the petition.

It will be noted that the petition was submitted on the sixteenth of September, 1939, and its prayer not passed upon until almost fourteen months thereafter. In the meantime, there having been no supersedeas issued, there was no activity of the county court as a fiscal body that was suspended or held in abeyance. The levy order became effective, all of the taxes assessed thereby were put into operation and the usual collections under the assessment were made.

The petition attacks the assessment because the authorization of the special levy in excess of the usual limit was for the purpose of covering an unlawful deficit, and much of the proof relates to the manner in which the deficit covered was acquired, the respondents contending that their estimates of tax receipts were legitimately arrived at, but that the actual collections fell far short due to several reasons that could not be anticipated; and the petitioners contending that the county court estimated the amount of receipts entirely to conform to the amount of intended expenditures, for many of which there was no justification whatever. In this way, the petition questions an amount in excess of thirty thousand dollars, being the item in the 1939 levy authorized by a special election in order to discharge in three years a pre-existing deficit of something over seventy-six thousand dollars.

We regard it as unnecessary to enter into a full discussion of what may be termed the merits involved in this proceeding, although this record has been scrutinized with some little care, and we do not wish to be understood as commending the practices which we believe were indulged in by the County Court of Mingo County. The court is of the opinion that this decision turns upon a jurisdictional question and that the Circuit Court of Mingo County, in order to exercise the jurisdiction conferred upon it by Code 1931, 11-8-9 (as amended and reenacted as Section 22, Acts 2nd Ex. Sess. 1933, Chapter 67; Michie's 1937 Code, 11-8-22) must go further than merely to enter an order containing the statement that a writ of supersedeas is "allowed on said petition," and must actually issue the writ in order to conform to what we believe is the meaning of the word "supersedeas" as used in the section under consideration.

We think that it is comparatively clear that the legislative purpose in conferring upon twenty-four persons the power by petition to question the validity of levies laid by the various fiscal bodies in this State, but not the right to question a part only of the levies under attack. (Wells v. Board of Education, 20 W. Va. 157), was to summarily suspend the effectiveness of the levy until the circuit court and, on review, this Court, had an opportunity to consider and pass upon the legality of the levy. Revenue being vital to the continuous exercise of governmental functions and the temporary suspension of the taxing power under the section in question being an extremely critical matter, we believe that the statute is to be strictly construed, particularly with reference to the meaning of the term "a writ of supersedeas" as therein contained. It confers upon circuit judges a special, statutory and limited jurisdiction which may be exercised in term or vacation, without the formality of maturing the proceeding before final disposition.

Supersedeas is now regarded and generally used as an ancillary process in conjunction with a writ of error. The latter writ brings a certified copy of the record before the reviewing court, but does not suspend the operation of the final judgment. That function is performed by the supersedeas, the order awarding which ordinarily requires the giving of a bond conditioned upon the satisfaction of the judgment before the writ issues. However, due to the fact that our present statute, or its equivalent, was first enacted in the State of Virginia in the Virginia Code of 1819, and since the meaning of a statute is not to be altered by a change in the meaning attached to its terms by popular usage since its enactment, it would seem to be necessary to interpret our present statute in accord with the meaning of the word "supersedeas" at the time of its original enactment, it having been transmitted to us through the Virginia Code of 1849, that being the last enacted codification prior to this State's formation.

The books are not completely in accord and it should be borne in mind that the definitions referred to are in furtherance of a strict construction of the statute before us, due to the fact that procedure under it has the drastic effect of suspending the tax assessments of our fiscal bodies and possibly affecting the exercise of governmental functions.

Going back no further than the Virginia Code of 1819, we believe it may safely be asserted that at that time the writ of supersedeas was an original process of an appellate court, the operation of which was dual, since it brought the record of the proceedings before the appellate court and held in abeyance the effect and operation of the order or judgment of the inferior tribunal. Lee v. Turberville, 2 Wash. 162; Burwell v. Anderson & Co., 2 Wash. 194; Wing-field v. Crenshaw, 3 Hen. & M. 245; Williams v. Bruffy, 102 U. S. 248, 26 L. Ed. 135; 1 Robinson's Practice 660. A writ of supersedeas awarded by an order of an appellate tribunal, but not actually issued, as here, was not the process of the court entering the order any more than an order awarding a subpoena duces tecum can be put into effect as process. Anderson v. Lively, 6 Leigh 77; Ex Parte Leicester, 6 Vesey, Jr., 429, 31 Eng. Rep. 1128; Ex Parte Layton, 6 Vesey, Jr., 435, 31 Eng. Rep. 1131. That being so where only private litigants are involved, where the activities of a public body are the object of the writ its effect should certainly depend upon its issuance.

Treating our present statute in the light of that definition of the word supersedeas, we are of the opinion that in a summary statutory proceeding questioning the validity of a levy, the actual issuance of a writ of supersedeas is a condition precedent to the reviewing court acquiring jurisdiction. The entire levy must be suspended and a separate part of it cannot be questioned due to the fact that an error affects the whole. Under the statute, the levy, if questioned at all, must be questioned within forty days. If the entire levy is thrown in doubt by the filing of a petition suspending its operation, it is likely that the legislative judgment believed that public concern and the private interests directly and indirectly affected would demand and receive prompt action. The provision of the statute granting fiscal bodies the right to enter a different order of levy after the awarding of the supersedeas accords with the idea that the legislative purpose was to procure promptness and a speedy remedy.

To sum up, in our opinion, the Circuit Court of Mingo County acquired no jurisdiction over the county court under the section in question by the issuance of an order to show cause. That is not within the purview of the act in question. Without a writ of supersedeas, the levy order of the fiscal body is not brought before the circuit court, and the intended function of a hearing upon the petition provided for is operative only directly upon the order of the fiscal body. The effect of the proceeding...