State Ex. Red. Dillon v. Graybeal

• Decision Date: 23 October 1906
• Citation: 60 W.Va. 357
• Court: West Virginia Supreme Court
• Parties: State ex. red. Dillon v. Graybeal, Assessor.

60 W.Va. 357

State ex. red. Dillon

v.Graybeal, Assessor.

Supreme Court of Appeals of West Virginia.

Submitted August 8, 1906.

Decided October 23, 1906.

1. Mandamus Compelling Assessment Authority of State Tax Commissioner.

As relator, the State Tax Commissioner may invoke the aid of a court by its writ of mandamus, to compel an assessor to make an assessment in conformity with the requirements of the law, except in so far as he has discretionary powers, (p. 359.)

2. Same Value of Real Estate.

A bank, owning shares of the capital stock of a corporation which has caused itself to be assessed with its property in the manner prescribed by section 77 of chapter 29 of the Code, as amended by chapter 35 of the Acts of 1905, and having elected to have its capital stock, surplus and undivided profits assessed to it, in conformity with the provision of section 79 of said chapter of the Code, as so amended, is entitled to have the value of such shares deducted, along with the value of its real estate and property exempt from taxation, in the ascertainment of tie taxable value of its capital stock, surplus and undivided profits, (p. 362.)

3. Same Value of Real Estate.

The value of real estate, owned by the banks and trust companies, to be deducted in ascertaining the taxable value of their capital stock, surplus and undivided profits, under the provisions of section 79 of chapter 29 of the Code, as amended by chapter 35 of the Acts of 1905, is the assessed value, not the actual value thereof at the time of the assessment, (p. 370.)

4. Same Double Taxation.

While double taxation, in a practical sense, is not always violative of the provisions of the Constitution, requiring equality in taxation, courts, in construing statutes, always presume that it was not intended, unless the legislative intent to impose it is clearly manifest. Doubts are always resolved against it. (p. 370.)

Application by the State, on the relation of Charles W. Dillon, State Tax Commissioner, for a writ of mandamus to J. Walter Graybeal, assessor of McDowell county, and the McDowell County Bank.

Writ Awarded.

C. W. Dillon, Mollohan, McClintic & Mathews, for petitioner.

John H. Holt, Rucker, Anderson, Strother & Hughes, and Wyndham & Stokes, for respondents.

Poffenbarger, Judge:

The State, at the relation of Charles W. Dillon, State Tax Commissioner, seeks a writ of mandamus to compel J. Walter Graybeal, Assessor of McDowell county, to assess the McDowell County Bank in accordance with what the relator conceives to be the law applicable to the assessment of said bank, in view of the nature and character of its property and assets. If his conception of the law be right, the value will be about $115,000.00, and if it be as assumed by the assessor, the assessed value will be about $29,-000.00. They did not disagree concerning the total value of capital, surplus and undivided profits of the bank, which is $154,519.36, but they did differ respecting the amounts and character of deductions to be made from said total values in ascertaining the sum with which to charge the bank on the personal property book. These differences involves two items, one of which is the tangible property, (real estate, furniture and fixtures,) the assessed value of which is $35,-670.00 and its actual value $71,721.71; and the other, five hundred shares of the capital stock of the Pocahontas Consolidated Coal Company preferred, of the aggregate par value of $50,000, 00, owned by the bank. The assessor proposes to deduct $71,721.71 on account of the tangible property and $50,000.00 on account of the Coal Company stock, while the State insists that only $39,333.47 should be deducted, it being the aggregate assessed value of the real estate, furniture and fixtures, together with unearned discounts, amounting to $3,663.47.

Though the right of the State Tax Commissioner to enforce, by proper remedies, the performance of legal duty by an assessor is not denied or questioned here, it is well, in view of the importance and extent of the power thus claimed and asserted, to ascertain whether it is well founded. Chapter 4 of the Act of 1904 created the office of Tax Commissioner, and that Act, together with chapter 35 of the Acts of 1905, amending chapter 4 of the Acts of 1904, conferred upon said officer certain supervisory powers over the assessment and collection of taxes and levies, which had previously been vested in the Auditor of the State and probably increased and extended them. Certain it is that, in transferring these powers from the Auditor to the State Tax Commissioner, the Legislature did not narrow them in any respect. The provisions of the two acts by which the transfer was made and the duties of the Tax Commissioner prescribed, confer very broad powers in general terms and supplement them by specifications and enumerations which clearly show that they are intended to vest all the authority which this Court, in State v. Buchanan, 24 W. Va. 362, held to have been conferred upon the Auditor by statutes less comprehensive and definite in the terms used. His right to invoke mandamus to compel an assessor to perform a legal duty is, we think, perfectly clear.

The statute under which banks are assessed is found in section 79 of chapter 35 of the Acts of 1905 which reads as follows:

"The shares of stock in a bank, trust company or national banking association, shall be assessed at their true and actual value, according to the rule prescribed in section twelve of this chapter, to the several holders of such stock in the county, district and town where such bank, company or association, is located, and not elsewhere, whether such holders reside there or not. The real and actual value of such shares shall be ascertained according to the best information which the assessor may be able to obtain, whether from any return made by such bank, company or associa- tion to any officer of the state or United States, from actual sales of the stock, from answers to questions by the assessor as hereinafter provided, or from other trustworthy sources. The cashier, secretary or principal accounting officer, of every such bank, company or association, shall cause to be kept a correct list of the names and residences of all the shareholders therein, and the number of shares held by each, which list shall be open to the inspection of the assessors of the county, and of the state tax commissioner; and such cashier, secretary or officer shall answer under oath such questions as the assessor may ask him concerning the matters shown by said list, and concerning the value of said shares, and shall be subject to the same penalties, for failure to do so, which are imposed by law upon individuals failing to answer questions which the assessor is authorized to ask. The taxes so assessed upon the shares of any such bank, company or association shall be paid by the cashier, secretary or proper accounting officer thereof, and in the same manner and at the same time as other taxes are required to be paid in such county, district and town. In default of such payment; such cashier, secretary or accounting officer as well as such bank, company, or association, shall be liable for such taxes, and, in addition, for a sum equal to ten per centum of the amount thereof. Any taxes so paid upon any such share may, with interest thereon, be recovered from the owners thereof by the bank, company, association or officer paying them, or may be deducted from the dividends accruing on such shares. The real estate of any such bank, company or association shall be assessed as in other cases, and a proportionate share of such assessed value shall be deducted in ascertaining the market value of the shares. Notwithstanding anything hereinbefore provided for, any such bank, company or association may have its capital stock assessed and may pay taxes thereon as hereinafter provided, and in that case the shares of its capital stock shall not be assessed for taxation. In such case the bank, company or association electing to have its capital stock assessed shall list the same for taxation, within the time prescribed as to other taxpayers, which list shall be made as of the first day of April, and shall be in the form used in making reports to the comptroller of the currency of the United States, or the state commissioner of banking, as the case may be. It shall be verified by the oath or affirmation of the president, cashier or secretary of such bank, company or association, and be attested by the signature of at least three of the directors. Such report shall exhibit in detail, and under appropriate heads, the resources and liabilities of the bank at the close of business on the thirty-first day of March previous. It shall especially show as of that date, the amount of the capital, surplus and undivided profits, the value of any real estate, and the amount aud value of any property exempt from taxation, which property claimed to be so exempt shall be specifically described. Upon consideration of the matters shown by such list, and of any former or other return or report made by such bank to the comptroller of currency of the United States, or the commissioner of banking in this State, and of any other information he may obtain upon the subject, the assessor shall fix the value of said capital, surplus and undivided profits, afterdeducting the value of such real estate and property exempt from taxation, and enter the same in his personal property book. If the capital stock of such bank, company or association is thus assessed, its real estate shall be assessed and entered in the land books as in other cases. No property shall be considered as exempt from taxation which shall have been purchased or procured for the purpose of evading taxation, whether by temporarily holding the same over the first of April or otherwise, and whether the same be in this State or otherwise."

This section, it will be observed, prescribes, first, the mode of...