Town Of Wytheville v. Johnson's Ex'r

• Decision Date: 10 September 1908
• Citation: 108 Va. 589,62 S.E. 328
• Parties: TOWN OF WYTHEVILLE. v. JOHNSON'S EX'R et al.
• Court: Virginia Supreme Court

62 S.E. 328

108 Va. 589

TOWN OF WYTHEVILLE.

v.JOHNSON'S EX'R et al.

Supreme Court of Appeals of Virginia.

Sept. 10, 1908.

1. Taxation—Unauthorized Tax—Enjoining Enforcement.

Equity has jurisdiction to enjoin enforcement of an unauthorized tax, notwithstanding the remedy at law furnished by Code 1904, § 571.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 45, Taxation, §§ 1238, 1239.]

2. Municipal Corporations — Collateral Inheritance Tax—Power to Levy—Statutes.

Under Code 1904, § 1043. authorizing a town or city to annually levy a tax on the adult male persons therein, and on any property therein, and on such other subject as may at that time be assessed with state taxes against persons therein, and under the charter of a town providing that its council may raise taxes annually by assessment on all subjects taxable by the state, the town has no power to impose a collateral inheritance tax; such power being conferrable on it only by express grant.

Appeal from Circuit Court, Wythe County.

Suit by Johnson's executor and others against the town of Wytheville. From an adverse decree, defendant appeals. Affirmed.

B. F. Buchanan, for appellant.

J. J. A. Powell, for appellees.

WHITTLE, J. This appeal is from a decree of the circuit court of Wythe county, enjoining the treasurer of the town of Wytheville from levying and collecting a collateral inheritance tax on property real and personal, devised and bequeathed to the appellee, Nannie L. Wadley, by the will of her deceased aunt, Emily L. Johnson.

The jurisdiction of a court of equity to enjoin the enforcement of an unauthorized tax is too firmly established in this jurisdiction to admit of serious question. Goddin v. Crump. 8 Leigh, 120; Bull v. Read, 13 Grat. 78; Eyre v. Jacob, 14 Grat. 422, 73 Am. Dec. 367; Miller v. City of Lynchburg, 20 Grat. 330; Johnson v. Drummond, 20 Grat. 419; Lewellen v. Lockharts, 21 Grat. 570; City of Richmond v. R. & D. R. Co., 21 Grat. 604; Redd v. Supervisors, 31 Grat. 697; School-field v. City of Lynchburg, 78 Va. 366. There is no merit, therefore, in the first assignment of error, which questions the jurisdiction of the court on the ground that section 571, Code Va. 1904, affords a complete and adequate remedy at law.

The essential facts are these: The testatrix, Mrs. Johnson, a resident of the town of Wytheville, died June 21, 1907, and shortly thereafter her will was admitted to probate. The collateral inheritance tax imposed on behalf of the state was paid by the executor. On August 2, 1907, more than a month after the death of the testatrix, the town council passed an ordinance laying a collateral inheritance tax for the use of the town of 5 per centum on every $100 in value of the estate of any decedent in the town and declared that the ordinance should take effect from January 1, 1907.

On the merits the only question material to be considered is whether the power to impose a collateral inheritance tax has been delegated to the town of Wytheville either by general statute or charter.

The enactment found in section 1043, Code Va. 1904, is as follows: "The council of every city and town shall cause to be made up and entered upon their journal an account of all sums lawfully chargeable on the city or town, which ought to be paid within one year, and order a city or town levy of so much as in their opinion is necessary to be raised in that way, in addition to what may be received for licenses and from other sources. The levy so ordered may be upon the male persons in the said city or town above the age of twenty-one years, and upon any property therein, and upon such other subject as may at that time be assessed with State taxes against persons residing therein."

Section 42 of the town charter provides that, "for the execution of its powers and duties, the council may raise taxes annually by assessments in said town on all subjects taxable by the State, such sums of money as they may deem necessary to defray the expenses of same, and in such manner as they may deem expedient (in accordance with the laws of the state, and the United States * * *)."

A statute substantially similar to section 1043 (section 33, c. 54, Code 1873) in connection with the charter of the city of Lynchburg and an ordinance imposing a collateral inheritance tax came under review by this court in Peters v. City of Lynchburg, 76 Va. 932, and Schoolfield v. City of Lynchburg, 78 Va. 366. Though the charter powers of the city in the matter of taxation were exceedingly broad, it conferred no express authority upon the common council to levy a collateral inheritance tax. In the first-named case, the validity of the ordinance was upheld by a divided court. Two of the judges, Burks and Christian, were of opinion that the power to impose such tax was conferred by the general law. Judge Anderson maintained the view that the Legislature, if it had the right, did not intend to confer power upon cities and towns to levy a collateral inheritance tax; and Judge Staples, while not doubting the authority of the Legislature to tax collateral inheritances, and to delegate that...