P. C. v. Bd. Of Pub. Works. Ubmitted

• Decision Date: 07 July 1886
• Citation: 28 W.Va. 264
• Court: West Virginia Supreme Court
• Parties: P. C. &. St. L. R'y. Co. v. Board of Public Works et al.ubmitted

28 W.Va. 264

P. C. &. St. L. R'y. Co.

v.Board of Public Works et al. ubmitted

Supreme Court of Appeals of West Virginia.

June 25, 1886.

Decided July 7, 1886.

1. The action of the circuit court in supervising the decision of the board of public works as to the assessment and valuation of railroad property for taxation under the provisions oi chap. 52, Acts 1883, is merely administrative and not judicial the court acting in such case as an appellate assessment or tax tribunal and exercising powers distinct from those belonging to it as a court or judicial tribunal in the legal sense of that term. (p. 267.)

2. Under our Constitution the Supreme Court of Appeals of the State

has no power to review by writ of error or appeal the decisions or orders of inferior tribunals, officers or boards as to matters which are simply administrative, executive or legislative and not strictly judicial in their nature, except where such power may be expressly conferred by the Constitution, (p. 270.)

3. This Court has no jurisdiction to review by writ of error a decision

of the circuit court correcting an order of the board of public works assessing and fixing the value of railroad-property for taxation, (p. 271.)

4. The second point of the syllabus in Low v. County Court, 27 W.

Va., 785 is overruled, (p. 272.)

.7. C Palmer and J. Dunbar for plaintiff in error. Alfred Caldwell, Attorney-General, for defendant in error.

Snyder, Judge:

The Pittsburg, Cincinnati and St. Louis Railway Company in the year 1885, under the provisions of ch. 52 Acts 1883, made a return of its property subject to taxation in this State to the Auditor, who laid the same before the board of public works. The return fixed the total value of said property in the county of Brooke at $109,720.00. The board of public works deeming said return unsatisfactory proceeded to ascertain the value of said property and fixed the value thereof in said county at $424,720.00. This increased valuation was made by adding to the $109,720.00, returned by the railroad company, the sum of $315,000.00, being the value fixed by the board on that portion of the railroad bridge of the company across the Ohio river at Steubenville within the said county. Soon after the action of said board the railway company filed its petition in the circuit court of Brooke county praying an appeal from the decision of said board and asking that the company might be exonerated from the payment of taxes assessed upon said $315,000.00; and thereupon the judge of said court made an order requiring notice thereof to be given to the said board of public works, to the county court of said county and to the board of education of Cross creek district in said county.

On March 1, 1886, the State by the Attorney-General, and the county court and the board of education ot Cross creek district by the prosecuting attorney of said county, appeared and tiled answers to said petition in said court, to which the railway company replied generally.

The said court, after having heard the evidence adduced and the argument of counsel for the respective parties, on March 19, 1885, entered an order or judgment fixing the true value of the property of said company in said county for the year 1885 at the aggregate sum of $259,720.00 instead of the said sum of $424,720.00. To this judgment of the court the railway company excepted, and upon its motion the court signed a bill of exceptions making all the evidence heard on the trial a part of the record.

Upon the petition of the railway company a writ of error and supersedeas to said judgment was allowed by one of the judges of this Court.

It is insisted by the Attorney-General for the State, that a writ of error does not lie to this Court from any judgment or order of the circuit court in a proceeding of this nature, even if the circuit court had jurisdiction to make the order, which he likewise questions. The first question then to be determined is the one of jurisdiction thus presented.

The circuit court having taken jurisdiction, and the railway company, the plaintiff in error, having brought the case to this Court to review the action of that court, it is not in a position to question that jurisdiction. And the defendant in error, being before this Court insisting that it has no jurisdiction in this case, is likewise precluded from questioning the jurisdiction of the circuit court or asking us to pass upon that question in this case; for, if we have no jurisdiction ourselves, we have no power to pass upon that question or any other matter except the one relating to our jurisdiction. And the only order we can make in the case, if the claim of the defendant in error is sustained, is an order dismissing the writ of error. It is, therefore, unnecessary for this court to consider whether or not the circuit court had iurisdiction, except so far as such consideration may be involved in the determination of our own jurisdiction or want of jurisdiction.

The writ of error according to the common law lies only to remove a cause from a court of record of competent jurisdiction to an Appellate Court. (3 Story Const. § 1721). It does not lie to review the proceedings of a court or tribunal not of record. The orders or proceedings of such tribunals are, when reviewable, generally reviewed by writ of certiorari. The writ of error must be not only from a court of record, but it must be from a judgment of such court rendered in a judicial proceeding, a judgment founded upon a judicial determination of a controversy in a suit or action inter parties. And it does not lie, even from a court of record, when the order or judgment of such court sought to be reviewed is simply an ex parte or administrative order or proceeding. Such order and such proceedings, when reviewable, are likewise the subjects of a writ of certiorari, and they are never reviewable by writ of error. That such are the limits and uses of the writ of error is elementary law and too well settled to admit of controversy or argument.

It becomes important therefore to inquire whether or not the order or judgment of the circuit court, sought to be reviewed by writ of error in this case, was made in a judicial proceeding; and whether it is the determination and result of the action ot that court acting in its judicial capacity or simply an ex parte or administrative order made by the judge of said court in a legislative or executive capacity.

The statute, under which the said proceeding was had, after declaring the manner in which the board of public works shall ascertain and fix the assessable value of the property of railroad corporations, provides that "the decision of said board...