State v.Baltimore & O. R. Co.

• Decision Date: 13 November 1895
• Citation: 41 W.Va. 81
• Court: West Virginia Supreme Court
• Parties: State v. Baltimore & O. R. Co.

41 W.Va. 81

State v.Baltimore & O. R. Co.

Supreme Court of Appeals of West Virginia.

Submitted June 6, 1895

Decided November 13, 1895.

1. Collection of Taxes Railroad Taxes Motion to Hecover.

A motion under chapter 35 of the Code will not tie to recover taxes assessed under section 67, chapter 2, upon the property of a railroad company.

2. Collection of Taxes Statutory Remedies.

Where the statute prescribes a mode for the collection of taxes, no suit lies therefor, unless allowed by statute,

3. Judgment Cause of Action Without Prejudice.

Where a motion, and notice of it, state facts which do not constitute cause of suit, there is no error in omitting from the judgment of dismissal the words "without prejudice."

D. B. Lucas and W. P. Hubbard for plaintiff in error. 1). B. Lucas cited 19 Gratt. 103; 27 Gratt. 110, 800; 1 II. & M. 454, 468; 2 Desty on Tax. 706; Burroughs on Tax. 253; Cooley on Tax. 13, n. 1; Id. 300; Const. Art. Ill, s. 13; Code, c. 35, ss. 1, 2, 3; Id. c. 29, s. 67; Id. c. 32, ss. 46, 51a, par 10, 11; Code Va. (1860) c. 42; Code (1868) p. 447, note; Acts 1882, c. 18; Code, c. 85, s. 25; 29 W. Ya. 673; 18 W. Ya. 441; 19 Wall. 227, 237, 238, 239; 21 Gratt. 513; Code, c. 30, s. 26; Id. c. 35; 102 U. S. 514; 30 Gratt. 474; Code, c. 123; s. I, par 2, 5; Acts 1837 (Ya.) p. 129; Acts 1847 (Ya.) p. 86; 6 W. Ya. 338; 3 W. Ya. 319; 3 Black. Comm. *159, *160; 3 Rob. Pr. (New.) 384; 17 S. E. Rep. 10, 11; 66 X. C. 206; Rap. & L. Law Diet. pp. 352, 396; 16 Cab 332; 2 Anst, 558; 1 Mason, 482; 42 La. Ann. 1135; 82 Me. 152; 27 Gratt. 800; 21 Gratt. 513; 18 Gratt. 137; 11 Gratt. 103; 6 A. & E. 70; 1 Chit. Plead. 682; 4 B. & A. 655.

John A. Hutchinson for defendant in error, cited Dwarns on St. (2nd Ed.) 621; 71 K Y. 487; 2 Coke, 46 a.; Brooms Legal Max. 625; 7 B. & C. 596; 28 Eng. L. & Eq. 133; 2 B. & Ad. 592; 15 Q. B. 724; 21 Wis 496; 7 Wall. 482; 2 Plowd. 459-465; 18 Wall. 301; 9 Bacon Ahr. 246 (Bouvier Ed.); Endlich on Int. §§ 27, 73, 86, 122; Bacon Max. 10; 7. East, 128; 2 Leigh, 617; 20 Cal. 351; Burrill Law Die; Webster's Die; Anderson's Law Die. Verb "Assess."; Code, c. 121, s. 6; 2 Mfd. 228; 2 II. & M. 54; 1 Rob. (old) Prac. 589; 1 Call. 455; 22 W. Va. 308; 92 N C. 185; 1 Peters, C. C. 199; 36 Ohio St. 347; 29 Atlantic Rep. 327; 101 U. S. 568; 8 flow. (IT. S) 210; 15 Peters, 233; 1 Bart. Ch. Prac. 351; Code, 1868, c. 29, 30; Code, 1887, c. 29, 30; Code 1887, c. 29, s. 67, p. 188; Code, c. 30, s. 7; 2 McCord, 55; Cooley on Taxation* 438; 35 La. Ann. 301; Td. 329; 18 \V. Ya. 441; 13 Wall. 506; 50 Mo. 376; 8 Mete. 394; 33 Mo. 125; 26 N. J. L. 598; 26 Wend. 66; 26 Vt. 482; 7 Wall, 80; 56 N. II. 158; 26 La. Ann. 697; 20 Cal. 350; 6 Mass. 44; 7 Mo. App. 428; 4 Geo. 68; 35 Mo. 334; 58 N W. Rep. 594; 56 N. W. Rep. 934; Endlich on Interp. Stat. § 465, and cases cited in note; 1 B. & Ad. 859; Code, c. 39, s. 1; Code, c. 30, ss. 5 to 17 inclusive; 28 Pa. St. 9; 20 Wall 663; Code, c. 45, s. 1; Acts 1877, c. 31; Acts 1872-3, c. 123; Acts 1879, c. 74; Acts 1881, c. 15; Acts 1882, c. 147; Hammond's Blackstone, 1 vol. 137; Cooky's Const. Lim. (6th Ed.) 635.

Brannon, Judge:

A motion was instituted on 7th day of September, 1885, in the Circuit Court of Ohio county, where the seat of government then was, in the name of the state against the Baltimore & Ohio Railroad Company, to recover certain taxes for the years from 1873 to 1879, both inclusive, to be distributed to the county of Jefferson; and, the court having sustained a motion to quash the notice and dismiss the motion, the state appeals.

The briefs of counsel are able and exhaustive, and upon them an elaborate discussion might be made; but, in view of former decisions of this Court, I regard this unnecessary. The controlling question is, can the state maintain any suit for these taxes, or must it confine itself to the means of collection pointed out by statute? The following opinion of Judge Paul in the Circuit Court will, I think, fairly present the legal questions involved:

"Section 67 of chapter 29 of the Code provides that taxes and levies charged against railroad companies, if not paid to the auditor within a time specified therein, shall be certified to the sheriffs of the different counties through which the road passes, for collection, in the same manner as other taxes and levies are collected by them; that is to say, in the manner prescribed by chapter 30 of the Code, which never included a suit, action or motion. Under these circumstances, it seems to me that the decisions of the Supreme Court of Appeals of this State in Board of.Education, etc. v. Old Dominion, etc., Manufg Co., 18 W. Va. 441, and Hinch-man v. Morris, 29 W. Va. 673 (2 S. E. 863) are absolutely conclusive against the right of plaintiff to institute any of the proceedings in question. In the former of these cases it was held: 'The levying of a tax is a matter solely of statutory creation, and, if specific means for its collect ion are prescribed in the statute law, no other means can he resorted to to coerce the payment' and in the latter: 'The levying and collection of a tax, whether state or county, is a matter solely of statutory creation. Such taxes are not debts, and unless they are expressly or by plain implication authorized to be assigned, legally or equitably, they are incapable of assignment; and no one can be subrogated to the rights and remedies of the state.' Counsel for the plaintiff, however, insists that these decisions do not apply to the proceedings under consideration for the following reasons:

"(1) That since the Code of 1868 took effect the property of railroad companies in West Virginia has been assessed upon the plan provided in section 67 of chapter 29 of that Code apian differing widely from the methods upon whioh every other taxable subject has been assessed, and which depends upon the theory that a railroad is to be considered and treated as an entirety. And he mentions several points of difference between this method and the ordinary methods of assessing property. But, before considering these points of difference, with respect to the method itself, it may be observed: (a) That it did not originate with the legislature of West Virginia. In Norfolk & W. R Co. v. Supervisors of Smith Co. 87 Va. 526 (12 S. E. 1009) it is said: 'Prior to the adoption of the present constitution of Virginia, no authority was ever conferred by law, either constitutional or statutory, upon the several counties, to levy taxes upon the property of railroad companies within their limits. The uniform policy of the legislature has been to treat a railroad as an entirety, to be taxed as such, and has been opposed to fragmentary assessments and levies by the counties, respectively; and for the obvious reason that any such mode of assessment and levy would be necessarily destructive of the cardinal principle of equality and uniformity of taxation prescribed by the constitution.' The principle of equality and uniformity of taxation has always been retained in the constitution of this state. See Article X, s. 1. And (b) that this method never included the collection of taxes assessed against a railroad company, unless they were voluntarily paid by the company; other wise, both in this state and in Virginia, they were collected by the sheriffs, or other collecting officers, of the different counties through which the road passed. See Code 1860, c. 35, s. 59; Acts W. Va. 1863, c. 118, s. 54; and Code W. Va. c. 29, s. 67. Now, as to the points of difference, it is urged (points 1 and 3) that the payment of taxes by a railroad company directly to the state is not only permitted, hut required, by section 67 of chapter 29 of the Code, that section providing that 'it shall be the duty of such corporation or company so assessed and charged, to pay the whole amount of such taxes and levies upon its property, into the treasury of the state, by the twentieth day of January next after the assessment thereof, subject to a deduction of two and a half per centum upon the whole sum, if the same be paid on or before that day'; that by this provision a railroad company is placed in a different situation from every other taxpayer; that no other taxpayer can in the first instance pay his tax into the state treasury; that a railroad company not only can do so, but the law makes it its duty to do so; and that, by reason of this obligation, taxes assessed against a railroad company are claims due the state, within the meaning of sections 1, 2, and 3 of chapter 35 of the Code, which expressly authorizes suits to be brought by the state. The provision in question imposes upon a railroad company no greater obligation to pay its taxes than Article XIII, s. 6, of the constitution of this state imposes upon every land owner to pay his. This article provides: 'It shall be the duty of every land owner to have it entered on the land books in the county in which it, or a part of it, is situated, and to cause himself to be charged with the taxes thereon and to pay the same.' The sole object of these provisions was, manifestly, not to change the nature or character of the tax, but to enable the auditor, in the one case, to add ten per centum to the amount thereof, as provided in the same section, to pay the expenses of its collection by the sheriffs, and to enable the state, in the other case, to declare a forfeiture of the land, in the manner provided for in section 6, because no penalty can be imposed on a taxpayer for the non-payment of his taxes, in the absence of some default of duty on his part in not paying them sooner. County of Redwood v. Winowa & st P. Land Co., 40 Minn. 512.(41 N". W. 465, and 42 N". W. 473). Again, if taxes, in their essential characteristics, are not debts (Hinchman v. Morris, 29 W. Va. 684 (2 S. E. 863) but forced contributions for the support of the body politic (5 Am. & Eng. Enc. Law, 149, note) no mere act of legislature, like the one under consideration can change these characteristics. Nor...