Powell v. City of Parkersburg.

• Decision Date: 30 October 1886
• Citation: 28 W.Va. 698
• Court: West Virginia Supreme Court
• Parties: Powell v. City of Parkersburg.

28 W.Va. 698

Powell

v.City of Parkersburg.

Supreme Court of Appeals of West Virginia.

Submitted June 21, 1886.

Decided October 30, 1886.

By an act of the legislature passed on the 5th of November, 1863, the corporate limits of Parkersburg, a city containing less than ten thousand inhabitants, were extended so as to include a portion of territory, not theretofore within its limits, and its charter Was thereby so amended, that no part of the land so annexed used exclusively for grazing, gardening, farming or other agricultural purposes, should be assessed with or liable for any city taxes, unless and until some part or parcel of said land had been, or should be laid off into streets and lots, and such lots sold, or offered for sale; and that no building erected on any part of the land so annexed, should be taxed by the city, unless the same fronts on some street or alley by which the same is accessible from the bounds of the city as it existed on the 5th of November 1863: and that when a building should be erected thereon, so as to become liable to be assessed with city-taxes, the same and not exceeding one acre of land, used in connection therewith, might be taxed at a rate not exceeding one half the rate, at the same time charged against similar property within the then existing limits of the city. The city disregarded the limitations imposed by the act of November 5, 1863, on its power to tax the lands so annexed, and during the years from 1879 to 1882, both inclusive, assessed and charged the plaintiff's land, being part of the land so assessed, with city-taxes at said half rate, and for the years 1883 and 1884, at the full rate imposed by the city on similar property within its former limits, notwithstanding the fact that his land then was, and always had been used exclusively for grazing and farming purposes, and had never been laid off into streets and lots, and sold, or offered for sale, and that there was no building erected thereon. Upon a bill filed by such land-owner, to enjoin the collection of the taxes assessed against his land for the years 1883 and 1884, on the ground that it was exempt from such taxation, under the charter of the city as amended by the act of November 5, 1863: Held:

I. That as taxes assessed on real estate without any lawful

authority create a cloud upon the title thereof, a court of equity will for that cause alone, entertain a bill to remove the cloud by perpetually enjoining the collection of such illegal taxes, (p. 704.)

II. That no part of the act of November 5, 1863, was repealed by the adoption of the Constitution of 1872, nor was the same in violation thereof, nor of the Constitution of 1863, nor was the said act or any part thereof, repealed by chapter 141 of the Acts of 1872-3. (p. 706.)

III. That a statute general in its terms, and without negative words, will not be construed to repeal by implication, the particular provisions of a former statute, which are special in their application to a particular case or class of cases unless the repugnancy be so glaring and irreconcilable as to clearly indicate the legislative intent to repeal, (p. 708.)

IV. That the first section of chapter 47 of the Code of 1868, so far as it conferred powers on a city, town or village not conferred upon it by its charter, is to that extent an amendment of its charter, (p 711.)

V. That the exemption from city-taxes specified in the act of November 5, 1863, was such as might at any time be repealed by the legislature, (p. 713.)

VI. That sections 30, 31 and 41, of chapter 47of the Code and sections 101 and 103 of chapter 54 of the Acts of 1875, conferred additional powers on the city of Parkersburg, and in effect so amended its charter, as to remove the limitations and restrictions to impose city-taxes upon the lands so annexed thereto, and exempted from such taxes by the act of November 5th, 1863: and, (p. 714.)

VII. That the city of Parkersburg is authorized to levy taxes for city-purposes, upon all the real and personal property within its corporate limits, according to the value thereof, and by a uniform rate of taxation, (p. 714.)

T. 0. Bullock for appellant. B. Powell for appellee. Woods, Judge:

The legislature by an act passed on the 5th day of November, 1863, extended the corporate limits of the city ot Parkersburg so as to include a large portion of land not theretotore included therein, and by the second section thereof, declared that the land so annexed, and the inhabitants thereof, were thereby made subject to the jurisdiction of the council of said city as fully as the present town and its inhabitants were then subject thereto; and should be governed by all the provisions of the original charter of said town and the acts amendatory thereof so far as the same were then in force, except as thereinafter excepted.

Lt is further declared by sees. 3, 4 and 5 of said act, that "no part or parcel of the land so annexed, now used exclusively for gardening, farming, grazittg, pasturing or other agricultural purposes, shall be assessed with, or be liable for. any taxes levied for the use of said town, unless or until such pari or parcel has been, or shall hereafter be laid off into streets and lots, and such lots have been, or shall hereafter be sold, or ottered lor sale by the owner thereof:" "and that no building on the land so annexed, shall be taxed by the said town, unless the same fronts on some street, alley, road or turnpike, by which such building is accessible from the present limits of said town: but where any building is so situated, the same and not exceeding one acre of land connected therewith and appropriated to the purposes thereof or of its occupants, maybe assessed according to its value, and the owner or occupier thereof charged with such taxes, or levies thereon as may be lawfully imposed by said council, but the rate of taxation so charged shall not exceed one half of the rate at the same time charged against similar property within the present limits of said town;" and that "whenever the said council shall cause any sidewalk or any part thereof, on any street, road or turnpike, that is now or may hereafter be opened through any part of the land hereby annexed to the said town to be graded and the curbstone thereof to be set, or placed on one or both sides of such street, road or turnpike, all the land on both sides thereof, so far as the said grading and curbing extend to the depth of not exceeding 200 feet, or one tier of lots on either side, may at the next or any subsequent assessment of the property of the said town be assessed according to its value, and thereafter taxed at the same rate as similar property within the limits of the said town is, or may be taxed."

On the 8th of July, 1885, Barna Powell on behalf ot himself and all other taxpayers of said city subject to the illegal tax complained of, filed his bill in the circuit court of Wood county against the city of Parkersburg and its sergeant, alleging the passage ot said act of the legislature: that he then was, and for ten years had been the owner in fee of a tract of three acres of land within that portion of the corporate limits of said city so annexed thereto, by the act of No-veraber 5, 1863, which was then, and which has since continuously been used by him exclusively tor grazing and farming purposes, and which has never been laid off in streets and lots, and sold or offered tor sale; that there was erected on said lot a small house worth about $200.00 with which was enclosed and used, a lot fronting on Walnut avenue or Twelfth Street, containing about one tenth of an acre, but the same was not accessible from the limits of said town at the time of the passage of said act, nor was this house then in existence: that this house was carried away by the great Hood about the 10th February, 1884.

The bill further avers that it said house and the lot connected and used with it had been liable tor city-taxes, the rate should not exceed one half the usual rate according to the valuation of similar property in the limits of said city, as they existed before the passage of said act of November 5, 1863; that his three-acre lot fronts on Murdoch avenue eighty-three feet and extends along Walnut or Twelfth street about 600 feet: that in October, 1882, after said lot had been assessed for State and county purposes for the year 1882, the city set in front of the eighty-three feet on Murdoch avenue a curbstone, whereby, at the next or any subsequent assessment of its land-property it might have that part of his three acre tract fronting eighty-three leet on said avenue, extending back 200 leet, assessed according to its value, and thereafter taxed at the same rate as similar property within the former limits of the city; that the city contained more than 2, 000 and less than 10, 000 inhabitants and that the assessment ot all taxes for city-purposes was bylaw required to be upon the valuation made by the assessor appointed to make such valuation tor State and county purposes, and that the city had no authority to make any other valuation for the purpose of assessing taxes thereon, for city-purposes since the passage of chapter 54 of the Acts of 1875.

The plaintiff's bill further avers that the last legal assessment of lands in said city lor taxation was in the year 1882, when the whole of the tract'of three acres was valued and assessed for purposes of State and comity taxation at $1,150.00: that the curbstone was set in front ol said eighty-three feet after this assessment had been made; that the city has never caused said one tenth of an acre with the house aforesaid out of said three acres, nor said eighty-three feet fronting on Murdoch avenue, extending back 200 feet, to be assessed for taxation for city-purposes, and that until said parcels were first valued for purposes of State and county taxation they were not subject to city-taxation, nor even when so valued for State and county taxation, could they be...