State v. Herrald

• Decision Date: 17 September 1892
• Citation: 15 S.E. 974,36 W.Va. 721
• Parties: STATE ex rel. WAYNE COUNTY COURT v. HERRALD, Commissioner.
• Court: West Virginia Supreme Court

15 S.E. 974

36 W.Va. 721

STATE ex rel. WAYNE COUNTY COURT v. HERRALD, Commissioner.

Supreme Court of Appeals of West Virginia.

September 17, 1892

Submitted Sept. 12, 1892.

Syllabus by the Court.

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.

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 the name of the state 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 by the acre as farming land, which the said 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 to 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 judgment the said relato r applied for and obtained this writ of error.

The first error assigned by the plaintiff in error is that the court erred in sustaining defendant's demurrer to the plaintiff's petition and writ, and in entering up judgment dismissing the case. Did the court below act properly in sustaining said demurrer? It is contended by counsel for the defendant in error that the county court had no authority by statute, express or implied, to make itself a relator in said proceeding, and had no individual or beneficial interest in the action. In determining the question as to whether the county court of Wayne county had the right to institute this proceeding, we notice first that the constitution provides that the county courts "shall under such regulations as may be prescribed by law, have the superintendence and administration of the internal police and fiscal affairs of their counties;" and, referring to the act of the legislature, chapter 36 of the Acts of 1891, p. 63, § 6, prescribing the duties of commissioners appointed for the reassessment of real estate, we find that, as soon as the commissioner shall have completed the assessment in his district, he shall make three copies thereof in the books so furnished him under section 3 of said act, and, after appending to each of the said books the oath therein prescribed, two of said books shall be filed by the commissioner with the clerk of the county court of his county on or before the 1st day of January, 1892, and shall be used by the said clerk as a guide in making up his land books. "*** In any county in which there are two assessment districts, the county court of such county shall examine said books, and see if there is inequality in said assessment as between the districts, and make such order as will correct such inequality." It will be perceived that the object and intention of this statute was that farming lands and town lots should be assessed separately, and it is incumbent upon the commissioner appointed to assess real estate that he should so assess real estate in order that the clerk of the county court, in preparing his land books under the supervision of the...