Town Of Leesburg v. Bank

• Decision Date: 05 November 1925
• Citation: 126 S.E. 196
• Parties: TOWN OF LEESBURG v. LOUDOUN NAT. BANK. BOARD OF SUPERVISORS OF LOUDOUN COUNTY v. SAME.
• Court: Virginia Supreme Court

126 S.E. 196

TOWN OF LEESBURG

v.LOUDOUN NAT. BANK.

BOARD OF SUPERVISORS OF LOUDOUN COUNTY

v.SAME.

Supreme Court of Appeals of Virginia.

Jan.15, 1925.

Error to Circuit Court, Loudoun County.

Separate proceedings, by the Loudoun National Bank against the Town of Leesburg and against Loudoun County to correct tax assessments. Judgment for plaintiff in each case, and the Town and the Board of Supervisors of Loudoun County bring error. Both judgments reversed.

Wilbur C. Hall, C. F. Harrison, and Cecil Connor, all of Leesburg, for plaintiffs in error.

E. E. Garrett, of Leesburg, and Fulton & Wicker, of Richmond, for defendant in error.

PRENTIS, J. These cases were argued together and with one exception to be hereinafter noted, the Questions raised in each are identical. They involve the validity of taxes imposed by the town and county upon the stockholders of the bank. The proceedings were under statutes, authorizing the correction of erroneous assessments and levies of local taxes. The taxes involved were for the years 1919 and 1921.

1. The first error assigned is that the court was clearly without jurisdiction to correct the assessment for the year 1919. This because that statute (Code, § 23S9) requires that the application for such redress must be made to the court within two years from the 1st day of September of the year in which the assessment is made, and this was not done.

The statement of this proposition is sufficient to show that the point is well taken. It does not present the cases where the limitation, if relied on, must be specially pleaded. The remedy, because it is based solely upon the statute, is also limited thereby. As is said in Commonwealth v. Deford, 137 Va. 551, 120 S. E. 284:

"The very right itself is accorded by the statute. As that statute is relied on, and the proceeding can be maintained only in accordance therewith, the limitation of time thereby prescribed is so incorporated in the remedy given as to make it an integral part of it, and hence makes it a condition precedent to the maintenance of the proceeding. It is a special limitation prescribed by the same statute which creates the right. The distinction between statutes of limitation which bar rights which have once accrued and limitations of time which are an integral part of the statute creating the right is everywhere recognized, and as to this it is only necessary to cite one other Virginia case, Dowell v. Cox, 108 Va. 400 , 62 S. E. 272, where it is held that the statutory requirement that an action for wrongful killing shall be brought within one year affects the right as well as the remedy, and can therefore be availed of by demurrer."

The court, then, had no jurisdiction to grant relief as to the taxes for the year 1919; and, this being jurisdictional, the question may be raised for the first time in this court.

It is urged for the bank that the notice of the purpose to apply for such correction was given within the two years. This we regard as entirely immaterial. The same question was presented to and considered by this court in Moore v. Henrico County, in which a writ of error was denied, and in Moore v. Scott, Judge, in which a mandamus was refused (no written opinion in either case).

We think the language of the statute is conclusive on this point, and that the application must be actually made, and made directly to the court within two years from September 1st of the year in which the assessment was made. The mere fact that the courts are not continuously in session does not affect the question. The application must be made to the court, which can of necessity only be to the court while in session, and it can only be made during the period prescribed by the statute. This is true because the statute so provides in language so clear that its meaning cannot be fairly doubted.

2. The court also required the taxes assessed for the year 1920 to be refunded, and it is claimed that the court erred in this also, because the application was made by the bank as applicant, or petitioner, and not by the several stockholders, as taxpayers who, and who only, were aggrieved if the taxes were illegal.

The question thus raised appears to be definitely settled in favor of this contention by Main Street Bank v. Richmond, 122 Va. 574, 95 S. E. 386. We think it unnecessary to do more than to state the substance of that ruling and to repeat that it is amply supported, as we believe, by reason as well as by the decisions...