State v. South Penn Oil Co.
| Decision Date | 04 April 1896 |
| Citation | 42 W.Va. 80 |
| Court | West Virginia Supreme Court |
| Parties | State v. South Penn Oil Co. |
1 Assessment of Taxes Legislative Power. 59 627. The imposition of taxes, and the law directing the mode of as-
sessment and collection, are the exercise of legislative power, to be exercised in conformity with the requirements of the Constitution, by general law.
2. Assessment op Taxes County Court Judicial Acts. When the question of the legality or illegality of the listing of
property on the land books for taxation comes before the county court for correction, on the application of the party assessed, who feels himself aggrieved, the county courts acts, in review of the action of the commissioner of reassessment, as an administrative board; and such action of the county court is not "judicial," withni the meaning of section 24 of article VIII of the Constitution.
3. Assessment of Taxes Circuit Court Judicial Power. When the issue on such controversy is made up between the
applicant and the state for the purpose of appeal to, and decision between such parties by, the circuit court, as to the right and legality of such assessment litigated between them, in the mode and according to the proceeding prescribed by law in such case for contesting the right claimed, and deciding the controversy, the orders and judgment of the circuit court are made and rendered in the exercise of its judicial power, in the proper and ordinary sense.
4. Mining Privileges Freehold Interest Assessment of Mining Privileges.
A privilege or liberty or license to search and explore the land for oil or other minerals, coupled with a grant to dig and remove them, and convert them to the grantee's own use, if in fee or for life, creates an incorporeal freehold right in the real estate, which may be assessed to the grantee separately from the land or its surface, and, if the minerals be found and produced, creates a freehold interest, which should be assessed separately on the land books, under the act of February 27, 1891 (chapter 36) entitled "An act to provide for the reassessment of the value of all real estate within this state."
5. Mining Privileges Estate for Years Assessment of Mining Privileges.
But such privilege, liberty, or license, and such interest, if limited to a term of years, are not held and owned as the whole or a part of a freehold ownership, within the meaning of the act, and should not be separately assessed to the mining licensee or lessee on such land books.
A. B. Fleming and U. IN". Arnett for plaintiff in error, cited 36 W. Va. 341; 38 W. Va. 201, 338; 28 W. Va. 264; 39 W. Va. 142; 135 U. S. 467; 152 Pa. St. 82, 451; Acts 1891, c. 36, s. 4; Code, c. 29, ss. 8, 25; Code, c. 13, s. 17; 2 Black. Comm. 104; 2 Kent, Comm. 342; 37 Pa. St. 427; 29 Pa. St. 373; 31 Pa. St. 475; 105 Pa. St. 469; 27 W. Va. 785; 89 Pa, St. 47; 8 Pa. St. 272; 53 Pa. St. 229; 63 Pa. St. 397; 55 Pa. St. 161; 32 Pa. St. 41, 367; 101 Pa. St. 235; 129 Pa. St. 94; 120 Pa. St. 590; 107 Pa. St. 57; 77 Pa. St. 103; 11 Atl. Pep. 453; 2 Cleveland Reports, 133; 25 K J. L. 106; 9 Pa, Cty. Ct. Reps. 56; 95 Pa. St, 474; 36 Vt. 193; 92 Pa. St. 123.
Attorney-General T. S. Riley for the state, cited Aqts
1891, c. 36; Const. Art., VIII, s. 3; 28 W. Va. 261, 271; 135
U. S. 467; 38 W. Va. 201, 338; 39 W. Va. 142; Const. Art.
X, s. 1; 39 W. Va. 231; 105 Pa. St. 469; 4 Cruise, Dig. 62;
63 Pa. St. 397; 152 Pa. St. 451; 57 Pa. St. 83; 107 Pa. St. 57. L. Or. Bennington for the state, cited Acts 1891, c. 36; Const. Art. VIII, s. 3; Const. Art. X, s. 1; 6 Ohio Cir. Ct. R. 326; 88 Pa. St. 198; 109 Pa. St. 583; 130 Pa. St. 235; 128 Pa. St. 485; L. R, 2 Sc. & D. Ap. 284; 94 U. S. 267, 762; 11 Casey, 287; Leake, Conts. 55; 7 Ex. C. 379-94; 12 Cal. 56.
Holt, President:
This is a controversy involving the legality of listing and assessing on the land book of Marion county, for purposes of taxation, certain oil and other mineral leases of the South Penn Oil Company, involving the right of the county to levy taxes, as well as relating to the public revenue. The lenses seem to be one hundred and more in number, of lands lying in Marion and Wetzel counties, and perhaps in other counties. This suit or proceeding relates to the leases in Marion, though it appears from a written opinion of Judge Jacobs, of the Fourth judicial circuit, filed with applicant's brief, that a similar proceeding was had in the county of Wetzel, and decided by him at the January term, 1893; but none but the case from Marion is before us.
In this case the commissioner of reassessment listed the property in question. The owner, feeling himself aggrieved that his property was listed for taxation, and claiming that it should not, under the law, have been assessed at all, applied to the county court for redress, after having given the prosecuting attorney of Marion, who was the attorney of the county as well as of the state, reasonable notice in writing of his intended application, stating, as the character of the redress it desired, that it would move the county court to enter such order as would wholly relieve the company from such assessment as erroneous and illegal. Such proceedings were had as that the county court, on the 8th day of June, 1892, entered an order that the applicant be wholly relieved and exonerated from such assessments as wholly erroneous and illegal, and ordered them to be stricken from the commissioner's book of assessment. From this order the state appealed to the circuit court, as provided for by the act of February 27, 1891, the act in question, entitled "An act to provide for the reassessment of the value of all real estate within this state" (see Acts 1891, p. 60); and, to the end that such appeal might be taken, the applicant and the state had the evidence taken at the hearing of the application certified by the county court. The appeal was allowed by the judge of the circuit court of Marion county; and, coming on to be heard, that court, on the 21st day of March, 1893, reversed and annulled the order and judgment of the county court, with such costs against the appellees as the statute prescribes, and denying the applicant the relief prayed for. From this judgment a writ of error to this Court was allowed the South Penn Oil Company.
In the assessment of taxes in this state, the law has always required two separate and distinct books to be made and kept one designated the "Personal Property Book," in which the values for taxation are ascertained in each year, as to ownership and value, as of the 1st day of April; the other, the "Land Book; Tracts of Land; Town Lots."
On the land book the assessor lists and puts down the land, in the name of the legal owner, on the 1st day of April of each year, putting it on in the name of the new owner, making the transfers from the former owner, and leaving it off in his name; "and, as to real property, the person, who, by himself or his tenant, has the freehold in his possession, whether in fee or for life, shall be deemed the owner for the purpose of taxation." Code 1891, c. 29, s. 40. See the whole chapter, which relates to assessment of taxes. The assessor makes the proper corrections according to the facts, omitting where improperly charged, and charging where improperly omitted; correcting such errors and mistakes as he may discover in any such land book as to the names of persons properly chargeable with taxes on any tract or lot of land entered therein, and enterng and charging the same with taxes therein to the person or persons properly chargeable therewith, whether such correction be rendered necessary by conveyance by the person last charged or otherwise, such as clerical errors of every sort, and mistakes in local description. So, also, the clerk of the county court, when he makes out the land book for the assessor, is to correct any and every mistake in the original land book he may discover. The assessor in each year is to assess and enter in the land book in his possession the value of any old building omitted for one or more years, and of additions or improvements to a building, and of any building newly erected, not theretofore assessed, if the same be of the value of one hundred dollars or upward (see Code, c. 29, ss. 27-29) and also assess the value of omitted lands by him entered, ascertaining such values by contiguous lands, as directed by chapter 29, section 10.
But with these exceptions, he does not ascertain or fix the value of the lands, but takes them as he finds such values, as assessed in the previous general reassessment. Such reassessment it has been the policy of the state to make once about every ten years. In pursuance of this policy, the act of reassessment of February 27, 1891, was passed, under which this controversy arises; and it is that statute and the Constitution and laws in pari materia with the points involved that we are called upon to read according to their meaning and effect, and apphy to the facts, as in the pleadings and evidence they appear.
About the material facts no controversy is or can be made, for the evidence is documentory; and the question of their meaning and effect in law is a question for the court. They are all what are called oil and gas leases, are about forty in number, and, being all essentially alike in their bearing on the matter in controversy, one will answer for all:
"This lease, made this fifth day of August, 1889, by and between E. M. Parrish, of the county of Marion, State of West Virginia, of the first part, and T. M. Jackson & Co., of the second part, witnesseth: That; the said party of the first part, in consideration of the stipulations, rents, and covenants hereinafter contained on the part of said party of the second part, to be kept, paid, and perfoimed, hath granted, demised, and let unto the said party of the second part the exclusive right to mine, bore, excavate, and produce petroleum, rock, or carbon oil,...
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