State ex rel. White v. Wirt County Court

• Decision Date: 29 October 1907
• Citation: 59 S.E. 884,63 W.Va. 230
• Parties: STATE ex rel. WHITE, Tax Com'r, et al. v. WIRT COUNTY COURT et al. [*]
• Court: West Virginia Supreme Court

59 S.E. 884

63 W.Va. 230

STATE ex rel. WHITE, Tax Com'r, et al. v. WIRT COUNTY COURT et al. ^[*]

Supreme Court of Appeals of West Virginia.

October 29, 1907

Submitted December 10, 1907.

On Rehearing, December 17, 1907.

Syllabus by the Court.

The clause in section 29 of chapter 39 of the Code of 1899 [Code 1906, § 1231], as amended by chapter 63, p. 256, of the Acts of the Legislature of 1907, saying "the said county court shall thereupon levy so many cents on every hundred dollars of the valuation of the property taxable in the county according to the last assessment thereof, as will cover the estimated amount necessary to be raised for county purposes and as aforesaid approved during the fiscal year but such levy shall in no case exceed thirty-five cents on the one hundred dollars valuation of property"-does not limit the powers of the county courts respecting the amounts to be raised by taxation for district road purposes.

Laws relating to different subjects are not in pari materia.

[Ed Note.-For cases in point, see Cent. Dig. vol. 44, Statutes §§ 230-243.]

The repeal of a statute merely qualifying or limiting another, or excepting something from it, leaves the original statute in full force and vigor. Such qualifying or limiting statute does not effect a repeal within the meaning of section 10 of chapter 13 of the Code of 1899 [Code 1906, § 286].

Mandamus by Albert B. White, state tax commissioner, and others, as relators, to compel Wirt county court to lay levies for county and road purposes in conformity with law. Writ denied.

W. H. WOLFe, Jr., and Geo. J. McComas, for petitioners.

Wm. Beard, J. W. Martin, and Willie Fought, for respondents.

POFFENBARGER J.

The county court of Wirt county on the 31st day of July, 1907, levied, for county purposes proper, 35 cents on every $100 valuation of property in said county, and, in addition thereto, 10 cents on the valuation of property in one district, for road purposes, 30 cents in another, 25 cents in three others, 33 1/3 cents in another, and 20 cents in another. Conceiving this levy to be in violation of law, Albert B. White, state tax commissioner, and F. T. Lockhart and S. H. Mitchell, citizens, residents and taxpayers of said county, as relators, have asked, in the name of the state, a writ of mandamus to compel said county court to lay levies for county and road purposes in conformity with the law. Their contention is that the court has exceeded the statutory limit upon its power of taxation for county and road purposes.

Section 29 of chapter 39 of the Code of 1899 [Code 1906, § 1231], as amended by chapter 63, p. 256, of the Acts of 1907, requires the county court to make up an estimate, in each year, of the amount necessary to be levied for the current fiscal year, to cover all county debts and liabilities payable during the year, including the probable expenditures for county purposes and a proper allowance for delinquent taxes, discount allowed on taxes paid on or before the 30th day of November, expenses of collection and contingencies. Following this requirement and certain directions concerning it is found the clause relating to the levy, on the construction of which this case turns. It reads as follows: "The said county court shall thereupon levy so many cents on every hundred dollars of the valuation of the property taxable in the county, according to the last assessment thereof, as will cover the estimated amount necessary to be raised for county purposes and as aforesaid approved during the fiscal year; but such levy shall in no case exceed thirty-five cents on the one hundred dollars valuation of property." In connection with it, the former laws relating to the same subject and the statutes concerning levies for road purposes must likewise be considered. Section 29 of chapter 39 of the Code of 1899 contained no limitation as to the amount to be raised. After requiring the estimate, it said: "The said court shall thereupon levy so many cents on every hundred dollars of the valuation of the property taxable in the county according to the last assessment thereof for state taxation, as will cover the estimated amount necessary to be raised for county purposes during the fiscal year." As amended by chapter 9, p. 121, of the Acts of 1904 [Code 1906, § 1231], the following limitation was added thereto: "But such levy shall in no case, after the year 1905, exceed sixty cents on the one hundred dollars valuation of property, except for the purposes mentioned in section seven of article ten of the Constitution, unless such levy shall have been submitted to a vote of the people of the county and have received three-fifths of the votes cast for and against the same." It was again amended by chapter 48, p. 446, of the Acts of 1905 [Code 1906, § 1231], and the limitation changed so as to read as follows: "No county court shall in the year nineteen hundred and five assess or levy taxes, including district road taxes, which shall exceed by more than five per cent. the aggregate amount of taxes levied by it in the year nineteen hundred and four; nor in the year nineteen hundred and six assess or levy taxes which shall exceed by more than seven per cent. the aggregate amount of taxes levied by it in the year nineteen hundred and four; nor in the year nineteen hundred and seven assess or levy taxes which shall exceed by more than nine per cent the aggregate amount of taxes levied by it in the year nineteen hundred and four. The word 'taxes' shall be construed to include district road taxes, as well as all other taxes for county purposes. *** Provided, second, that after the year nineteen hundred and seven no county court shall in any year assess or levy taxes for any and all purposes, including district road taxes, the aggregate of which shall exceed sixty cents on the hundred dollars valuation of property, except for the support of free schools and the payment of indebtedness as provided in section 7 of article 10 of the Constitution, unless such levy shall have been submitted to a vote of the people of the county and have received three-fifths of the votes cast for and against the same." While all these changes in chapter 39 were made, there remained and still remains unchanged sections 12 and 22 of chapter 43 of the Code of 1899 [Code 1906, §§ 1400, 1411], relating to the power and duty of the county court to assess and levy taxes for road purposes, which read as follows:

"*** And the county court of every county in which the said two days' work shall be insufficient to open, construct and keep in good repair, the roads and bridges thereof, shall, at a session of said court held prior to the first day of May in each year, prescribe by order of the court the manner in which the same shall be done, after expending thereon the two days' work aforesaid, whether entirely by a tax on property, entirely by labor, or partly by tax and partly by labor; and it shall prescribe, provide for and lay a sufficient amount of tax, or labor, or both, as the case may be, to open, construct and keep in good repair the roads and bridges in their county during each year."

"Sec. 22. When the county court of any county shall decide to levy a tax in pursuance to the provisions of this chapter, it shall ascertain, as nearly as possible, the amount of money which will be necessary in each magisterial district in their county, together with the labor required to be performed therein, to construct, put and keep in good repair the roads and bridges in such district, and shall by an order entered of record, direct the assessor of the assessment district in which such district may be, to extend on the land and property books, required to be made by said assessor, a road tax on the real and personal property taxable in said district, at such rate as may be specified in such order, which levy shall be made upon the latest assessment thereof for state taxation."

While these statutes contained no limitation upon the powers of the court to raise money for county and road purposes, prior to the legislation of 1904, 1905, and 1907, there was a limitation in section 7 of article 10 of the Constitution to which they were necessarily subject, and which reads, in part, as follows: "County authorities shall never assess taxes, in any one year, the aggregate of which shall exceed ninety-five cents per one hundred dollars valuation, except for the support of free schools. ***" That this clause governs the court in respect to both county and road levies was determined by this court in the case of Brannon v. County Court, 33 W.Va. 789, 11 S.E. 34, 8 L. R. A. 304, and Neale v. County Court, 43 W.Va. 90, 27 S.E. 370.

It is insisted that the construction given by the court to the constitutional clause quoted applies to the statutes now under consideration. We are unable to adopt this view. The Constitution is one thing and the statute quite another. The language of the Constitution differs very materially from the language of these statutes, and the decisions above referred to rest largely upon the peculiar terms of the constitutional clause. That clause says county authorities shall not levy taxes in one year in excess of 95 cents on every $100 of valuation. Both county levies and road levies are laid by the county authorities. This general language was followed by an exception as to taxes for the support of free schools, and the court said: "The fact that certain exceptions from this limitation are specified tends to show that all other taxes are meant to be included within the limitation." The use of the word "aggregate" in the clause was also regarded as significant. The court said: "Another feature of this section 7 strikes me as significant of its meaning, and that is the presence of...