State Ex Rel. Wayne County Court v. Herrald

• Court: Supreme Court of West Virginia
• Writing for the Court: English
• Citation: 36 W.Va. 721,15 S.E. 974
• Decision Date: 17 September 1892
• Parties: State ex rel. Wayne County Court v. Herrald, Commissioner.

15 S.E. 974
36 W.Va. 721

State ex rel. Wayne County Court
v.
Herrald, Commissioner.

Supreme Court of Appeals of West Virginia.

Sept. 17, 1892.

Taxation—Reassessment or City LOTs—Mandamus to Commissioner.

1. Under that portion of section 4, c. 36, Acts 1891, which provides that a commissioner appointed to reassess the real estate in any county, "in ascertaining and fixing the value of any land within the limits of any city, town, or village, when laid off into or offered for sale in lots, and when in any case land is laid off into lots, the said commissioner shall adopt as the value of such land the value thereof as so laid off into such lots, valuing the same by the lot, and not by the acre or tract, " the duty thus imposed upon such commissioner is a ministerial duty, and a compliance therewith may be controlled by mandamus.

2. Mandamus is the proper remedy to compel such commissioner to assess lands which have been laid off into town lots as lots, and not as farming land; and, while the exercise of official discretion will not be controlled by.mandamus, yet mandamus is proper to compel the commissioner to exercise his discretion.

(Syllabus by the Court.)

Error to circuit court, Wayne county.

Petition for mandamus by the state on relation of the county court of Wayne county to compel Stephen Herrald, as commissioner, to reassess certain real estate. A demurrer to the petition was sustained, and relator brings error. Reversed.

Simms & Enslow, for plaintiff in error.

Vinson & McDonald and J. B. Laidley, for defendant in error.

English, J. This was a proceeding by way of mandamus in thename of thestate of West Virginia at the relation of the county court of Wayne county, instituted in the circuit court of Wayne county, to compel one Stephen Herrald, who had been appointed by the board of public works of said state, to reassess for taxation all the land in the first assessment district of said county to reassess a portion of a tract of land containing 308 acres, more or less, owned by R. H. Prichard, trustee, and lying between the west line of Cabell county and Twelve Pole creek, in Wayne county, all of the upper or high bottom land of which tract had been laid off into streets, alleys, and town lots; and at the time said Herrald, as commissioner, was proceeding to reassess said land, the said R. H. Prichard, through the Huntington & Kenova Land Development Company, was engaged in selling and offering for sale any and all of said lots so laid off and platted, the same being known as the "Town of Kellogg, " in said Wayne county. Such being the case, said county court of Wayne county, before it would receive the books from said assessor, required that he, the said Stephen Herrald, should place upon the books for the said assessment district the said several lots in the town of Kellogg in blocks Nos. 1 to 140, inclusive, as town lots, and not assess the same

[15 S.E. 975]

by the acre as farming land, which the Bald Stephen Herrald then and there refused to do, and placed the same upon the land books as reassessed and revalued by him as 75 acres at $138 per acre, 118 acres at $100 per acre, and the balance, with the hill land adjoining, assessed as 157 acres at $75 per acre, and 190 acres at $83; thus valuing the said lands as acres, and not as lots, or at lot prices. These facts were set forth by the relator in its petition for the writ of mandamus, and it was also alleged therein that the fair valuation of said land at lot prices, as provided by the reassessment law, would be $73,560, and that 649 lots in blocks Nos. 1 to 30, and 245 lots in blocks Nos. 53 to 64, and 320 lots in blocks Nos. 67 to 72, as laid down on the plat and map of the town of Kellogg, are worth for taxation, and should be assessed, at least at.$20 per lot; that 192 lots in blocks Nos. 73 to 76, inclusive, 398 lots in blocks Nos. 81 to 93, inclusive, 432 lots in blocks Nos. 96 to 109, inclusive, 448 lots in blocks Nos. 112 to 125, inclusive, 224 lots in blocks Nos. 128 tc 135, inclusive, and 112 lots in blocks Nos. 136 to 140, inclusive, are worth and should be taxed at $30 per lot, making a total of 969 lots at $20 per lot, and 1, 806 lots at $30 per lot; making a difference in the assessed values between the land as assessed by the acre and what it should be assessed by the lot of $50,000, at least, thereby depriving the state and the relator of the revenue that they are entitled to. To this petition the defendant, Stephen Herrald, demurred, and on the 4th day of June, 1892, the court, having considered the matters of law arising upon said demurrer, sustained the same, and dismissed said writ and petition, and from this...