PRobasco v. The Town Of Moundsville.

• Decision Date: 01 November 1877
• Citation: 11 W.Va. 501
• Court: West Virginia Supreme Court
• Parties: PRobasco et al v. The Town of Moundsville.

11 W.Va. 501

PRobasco et al

v.The Town of Moundsville.

Supreme Court of Appeals of West Virginia.

Decided November 1, 1877.

1. Municipal charters are not contracts, but are granted for pub-

lic purposes, and amended or repealed at the discretion of the Legislature.

2. The principle is well settled, that the power of exemption, as

well as the power of taxation, is an essential element of sovereignty, and can only be surrendered or diminished in plain and explicit terms.

3. Where exemptions are found in tax laws, they are usually

nothing more than directions to the tax officers, and not undertakings or contracts with anybody.

4. The exemption in the amended charter of Moundsviile cannot

be considered as a contract, and was not such a vested right in the plaintiffs as would prevent the Legislature from repealing it.

5. The 1st section of chapter 47 of the Code, which went into

effect April 1, 1869, declares that so far as that chapter conferred " powers on a town or village council, not conferred by the charter of any such town or village, the same shall be deemed an amendment to said charter." And the same section declares:." The council of a town or village heretofore established may exercise all the powers conferred by this chapter, although the same may not be conferred by their charter." Held:

I. That so far as said chapter 47 of the Code gives additional powers to the council of towns or villages, those powers may be exercised by the common council of the town of Moundsviile, although not conferred by its charter.

II. That sections 30, 31, and 41 of said chapter 47, and sections 101 and 103 chapter 54 Acts 1875, confer additional powers, which may be exercised by the common council of said town of Moundsviile, III. That as the said 47th chapter and the said act of 1875, authorized such council to levy taxes upon all real and 'personal estate within the town or village subject to State and county taxes, the said common council did not violate the charter of said town, but had full authority to make the levy they did.

IV. That the supersedeas to said levy was properly quashed.

Supersedeas to a judgment of the circuit court of Marshall county, rendered on the 4th day of November 1876, allowed upon the petition of John W. Probasco and others, who had obtained a writ of supersedeas to a levy for taxes upon their property in the town of Moundsville, and which writ was, by said judgment, quashed, with costs against the petitioners.

Hon. T. Melvin, Judge of the first judicial circuit, rendered the judgment below.

The facts sufficiently appear in the opinion of the Court.

R. C. Holliday, for plaintiff in error, referred to the following authorities:

Cons. W. Ya. 1863, art. 8 §1; Cons. W. Ya. 1872, art. 10 §1; Cooley Cons. Lim. 515; Gilkeson v. 2 he Frederick justices, 13 Graft. 577; Douglass & Mc Kinney v. Town of Har- risvilte, 9 W. Ya. 162; Cons. W. 1872, art. 10 §9; Surrill v. The City of Philadelphia, 38 Pa. St. 355; Jollett v. City of Hartford, 31 Conn. 351; Henderson v. Lambert, 8 Bush, (Ky.) 607; Benoist v. City of St. Louis, 19 Mo. 179; Leigh v. Thomas, 49 Mo. 112; Samuels, Judge, in City of Richmond v. Daniels, 14 Gratt. 387; Anderson, Judge, in Ould & Carrington v. City of Richmond, 23 Gratt. 467: Cooley Cons. Lim. 192; Code 1860, ch. 54; Code W. Va. ch. 47; Charter of Moundsville, 1866; 20 Gratt. 34, 94; 6 W. Ya. 574; 13 Gratt, 86; 14 Gratt, 387, 425; 25 Gratt. 9; 8 W. Va 613, 703; City of Richmond, v. Richmond, and, Danville R. R. Co., 21 Gratt. 604, particularly Staples, Judge, on pp. 607, 613; 4 Pet, 11, 546; 10 How. 376, 416; 3 W. Va. 325. J. Dallas Etving, for appellee:

It has been held that such acts as those, under which the plaintiffs claim exemption, are not contracts, and that they may be repealed. East Saginaw Manufacturing Co. v. East Saginaw, 19 Mich. 259; Lord v. Litchfield, 36 Conn. 116; Lord v. Town of Litchfield, 4 American, 41. Abbot's Digest of Cor. page 484, §§16, 17, 18, 19.

We insist that the acts, or parts of acts, by which the plaintiffs claim exemption, are repealed, and that if they are not expressly repealed, they are repugnant to the Constitution and tax laws of this State, and are illegal and void; either the town must tax all property or it can tax none. Beats v. Hale, 4 How. 37; Ward v. United States, 16 Pet. 342; Davis v. Fairbairn, 3 How. 636.

No tax, either for state, county or corporation purposes, can be levied without express authority: Zanesville v. Richards, 5 Ohio, St. 589; Knoulton v. Supervisors, 9 Wis. 410; People v. McCluny, 34 Cal. 432; Beals v. Amador County, 32 Cal. 624.

Nor is the claim of a bargain with the town set up in the petition tenable, the powers conferred upon municipal corporations are for public purposes, and as their legislative powers can not be delegated, ' so they cannot bargain and barter away the right of the inhabitants to uniform taxation, and thus throw the burden of government on a portion of the property and people. Dillon on Municipal Corporations, §61, 1st ed. page 110.

Reference is also made to Code 1868, ch. 47 §§1, 30, 31, 41; Cons. 1863, art. 8 §1; Cons. 1872, art. 10 §9; Acts 1875, eh. 54, §101.

Moore, Judge, delivered the opinion of the Court:

By virtue of the 77th chapter, Acts 1875, Probasco and others filed their petition, praying the circuit court of Marshall county to supercede a levy for certain taxes made by the common council of the town of Moundsville August 21, 1876 on certain property of said petitioners, located within the corporate limits of said town. On the 29th day of August 1876 the judge of said circuit court awarded a supersedeas as prayed for, so far as the levy complained of affects land mentioned and described in section 6 of the act, passed by the Legislature of West Virginia on February 26, 1866, consolidating the towns of Moundsville and Elizabethtown. On the 4th day of November 1876 upon the motion of the defendant to quash the supersedeas, as having been improvidently granted, the court, "having fully considered the matter of law arising upon the issue joined," ordered that the supersedeas be quashed, and gave costs against the petitioners; to which judgment the petitioners excepted, and obtained a supersedeas thereto from one of the judges of this Court.

The petitioners substantially allege in their petition, that they are tax-payers residing within the limits of the town of Moundsville, and owners of real estate, &c, therein, and that they are grieved by an unlawful and erroneous levy of taxes on their property by the said town; "that the lands are now, and heretofore always have been, used for agricultural purposes, and that the same is not now, and never was, laid off into lots, streets and alleys, or converted in any manner into urban property that the said towns existed for many years as separate corporations, but are now consolidated. They claim that their property is exempt from town taxes, by virtue of an act of the General Assembly of Virginia, passed February 18, 1853, extending the corporate limits of the town of Moundsville, because the fifth section thereof exempted from town taxes such lands "not yet laid off into lots, streets and alleys," " so long as they remain in their present state; and when they shall have been so laid off by the proprietors thereof, respectively, no lots remaining unsold in the hands of such proprietors shall be subject to taxation by the corporation, unless improve merits of the assessed value of $200.00 are erected thereou;" and also by virtue of the amended charter of Elizabethtown, passed by the said General Assembly May 29, 1852 extending the limits thereof, because the sixth section provided that," said addition shall not be taxed as town property, until laid off into lots, streets and alleys, and sold as such by the proprietors thereof, or improved by being enclosed and built upon 3" and also by the act of the Legislature of West Virginia of February 23, 1866 (chapter sixty, consolidating the two towns), section six, where it was provided that, "the lands lying within the corporate limits, not yet laid off into lots, streets and alleys, shall not be subject to town taxes, so long as they remain in their present state; but when they shall have been so laid off by the proprietors thereof, respectively, no lots remaining unsold in the hands of such proprietors shall be subject to taxation by the corporation until assessed, unless improvements of the assessed value of $100.00 shall have been erected thereon that said last-mentioned act is now the organic law of said corporation, &c.; that all of said extensions were made with the express understanding and agreement between said Moundsville and the land-owners within the new and extended corporate limits of said Moundsville, that the new territory thus embraced within said limits "was not to be subject to taxation for municipal 'purposes, until it was laid off into lots, streets and alleys, and the lots were either sold or built upon" &c. and if not for that agreement, they would not have consented to have been included within the corporate limits and that the town had always before acted upon these chartered exemptions.

The question therefore for our consideration is: Was the levy, made August 21, 1876 by the common council of the town of Moundsville on said lands legal? In other words the question involved is the right to tax the said property under the law existing August 21, 1876.

" Municipal charters are not contracts, but are grant- ed for public purposes, and amended or repealed at the discretion of the Legislature.'' Cooley on Taxation, 56, and note 2; City of Richmond v. R. & D. R., 21 Gratt. 604.

"Every municipal corporation, and every political division of the State, which demands taxes from the people, must be able to show due authority from the State to make the demand. The authority in some cases is conferred by the State Constitution; but if not found there, it must be given by ...