Sch. Bd. Of Carroll County v. Shockley

• Decision Date: 16 March 1933
• Citation: 168 S.E. 419
• Parties: SCHOOL BOARD OF CARROLL COUNTY. v. SHOCKLEY et al.
• Court: Virginia Supreme Court

168 S.E. 419

SCHOOL BOARD OF CARROLL COUNTY.

v.SHOCKLEY et al.

Supreme Court of Appeals of Virginia.

March 16, 1933.

Error to Circuit Court, Carroll County.

Proceeding on the petition of S. N. Shock-ley and others for relief from certain levies for local taxes. To review an order granting the relief prayed for, the School Board of Carroll County brings error.

Affirmed.

Argued before CAMPBELL, C. J., and HOLT, EPES, HUDGINS, GREGORY, BROWNING, and CHINN, JJ.

L. E. Lindsay, of Hillsville, and Kirsh & Bazile, of Richmond, for plaintiff in error.

G. P. Young and S. B. Campbell, both of Wytheville, and John S. Draper, of* Pulaski, for defendants in error.

CHINN, Justice.

This is a proceeding by petition filed in the circuit court of Carroll county under section 414 of the Tax Code (Code 1930, p. 2243), by S. N. Shockley, asking for relief from certain levies for local taxes imposed upon petitioner's real estate and tangible personal property.

The levies complained of are: (1) A tax of 50 cents on the $100 of assessed value of the property, levied by the board of supervisors for the year 1930, under an act of the General Assembly, approved March 20, 1930 (Acts 1930, c. 173), to provide funds for the erection and equipment of a public high school at Hillsville in said county; and (2) a tax of 25 cents on the $100 of assessed value of the property, being part of a tax of $1.25 levied by the board of supervisors for the years 1929 and 1930 for county school purposes.

A copy of the petition was served on the commonwealth's attorney of Carroll county, and on September 23, 1931, the court entered the following order:

"This day came again the parties by counsel, and the court having previously heard the evidence, and the Commissioner of the Revenue having been examined as a witness, and the application having been defended by the Commonwealth's attorney, as well as special counsel employed in the case, and the court now being advised of its opinion; doth adjudge, order and decree as follows:

"(1) That the fifty cents special tax for the purpose of building a high school in Hillsville is unconstitutional. (2) That the tax of twenty-five cents on the one hundred dollars of assessed valuation for County School Taxes for the years 1929 and 1930 is illegal, and that the legal rate of County School Tax for those years is one dollar."

To this order of the court the county school board of Carroll county applied for and was awarded a writ of error and supersedeas, thereby bringing the proceedings before this court for review.

[1Q The first question presented is the motion of the defendant in error to dismiss the writ of error on the ground that the county school board is not a party to the proceedings within the meaning of section 6336 of the Code, and therefore has no right to apply for the writ.

In support of the motion, defendant in error relies upon the rule of construction placed upon the statute in Snavely v. Snavely, 151 Va. 273, 144 S. E. 422; Southern Ry. Co. v. Glenn, 102 Va. 529, 40 S. E. 776; Board of Supervisors of Culpeper County v. Gorrell, 20 Grat. (61 Va.) 484, and kindred cases, to the effect that one complaining of a judgment "must not only be a party to the proceedings in the court below, but he must also be aggrieved by the judgment rendered therein to entitle him to obtain a supersedeas to said judgment; the two circumstances must concur."

While the immediate question involved has not heretofore been passed upon by this court, we think it was practically decided in the cases of Town of Leesburg v. Loudoun Nat. Bank and Board of Supervisors of Loudoun County v. Loudoun Nat. Bank, 141 Va. 244, 126 S. E. 196, 198. In those cases the bank instituted proceedings under the statute for the correction of assessments for local taxes, imposed by both the town of Leesburg and the county of Loudoun upon the bank's stockholders. The judgment of the lower court was in favor of the bank, which contended in this court that the board of supervisors, not being a party to the proceedings, had no right of appeal from the judgment. After stating that "this question must be determined from a consideration of the statutes relating to that board, " and discussing the powers and duties of the board under the statutes, the late Chief Justice Prentis said:

"This statutory proceeding for the correction of erroneous assessments does not interms provide for naming any party defendant. Notice must be given to the attorney for the commonwealth, and the commissioner of the revenue must be examined as a witness, but neither of these are parties in interest. The true parties to the proceeding under this section are either the county or the municipality for the use of which the specific levy is made." The appeal taken by the board of supervisors in behalf of the county of Loudoun was accordingly upheld.

The instant case presents a somewhat analogous situation. Section 133 of the Constitution provides for the creation of a school board for each county and city, vested with the supervision of the public schools within their several jurisdictions, to be selected in the manner prescribed by law. Section 653 of the Code provides that each county school board shall be a body corporate, and may in its corporate capacity sue, or be sued, contract, or be contracted with, and clothed with all the powers and charged with all the duties, obligations, and responsibilities imposed upon such board by law. Among the manifold powers and duties prescribed by the statutes on the subject, the county school board is vested with the exclusive control of all school property in the county, both real and personal, has authority to condemn land for and erect schoolhouses, employ teachers, and to incur other expenses incidental to the proper operation and administration of the public schools of the county. Under section 656 and 676, the school board alone is vested with the use and control of all school funds, whether derived from state appropriations, local taxation, or other sources, and has exclusive authority to expend the funds set apart by law for school purposes. By section 676 the county school board is also given authority to employ counsel, and, with the approval of the court, to provide for and direct the payment of reasonable attorney's fees, whenever such action may be necessary "for the protection of the public schools of the county from loss or detriment from any cause."

It appears from the record before us that the county school board and the board of supervisors of Carroll county jointly employed special counsel to assist the attorney for the commonwealth in defending the attack upon the levies in question, and co-operated in that respect throughout the proceedings in the court below, but, before the petition for a writ of error was presented to this court, the board of supervisors decided not to prosecute the appeal, and withdrew from the case.

In view of the above circumstances and the statutes relating to the subject, we see no good reason why the county school board of Carroll county should be denied the right of appeal in this case. The levies in question were not made by the board of supervisors for general county purposes, but for the exclusive use of the school board in the support and operation of the public schools of the county. Under the law the school board not only has the authority, but it is its duty, to protect the school revenues by proper legal action, whenever threatened with loss or detriment from any cause. We therefore think the county school board of Carroll county had the right to become a party defendant in the proceedings in the lower court as it did, and, being aggrieved by the judgment entered therein, is entitled to take this appeal. The motion to dismiss the writ of error is therefore denied.

Coming to the merits of the matter, the first question to be considered is the constitutionality of the act of March 20, 1930, (Acts 1930, c. 173), under which the special tax of 50 cents was levied. The body of the act reads as follows:

"1. Be it enacted by the general assembly of Virginia, That the board of supervisors of Carroll county be, and is hereby, authorized, empowered and required to make a special levy, in addition to any and all other levies, of fifty cents on each one hundred dollars assessed value of all property, both real and personal, in the said county subject to local taxation, for the years nineteen hundred and thirty, nineteen hundred and thirty-one and nineteen hundred and thirty-two, the proceeds of said levy for the three years, to be used for the purpose, and that only of paying for the erection and equipment of a high school building in the town of Hillsville, in said county, and/or for...