Wheeling Bridge & T. Ry. Co v. Paull

• Decision Date: 24 March 1894
• Citation: 19 S.E. 551,39 W.Va. 142
• Court: West Virginia Supreme Court
• Parties: WHEELING BRIDGE & T. RY. CO. v. PAULL, Judge.

19 S.E. 551

39 W.Va. 142

WHEELING BRIDGE & T. RY. CO.

v.PAULL, Judge.

Supreme Court of Appeals of West Virginia.

March 24, 1894.

Jurisdiction of Circuit Court — Appeal from Board of Public Works—Mandamus.

1. Section 67, c. 29, of the Code, in so far as it allows an appeal from the decision of the board of public works to the circuit court, is constitutional and valid.

2. Mandamus is the proper remedy to compel the exercise of jursdiction by the circuit court, which it is erroneously refusing to assume contrary to the express provisions of a constitutional and valid statute.

(Syllabus by the Court.)

Application by the Wheeling Bridge & Terminal Railway Company for mandamus to Jos. R. Paull, judge of the circuit court of Ohio county. Writ granted.

W. P. Hubbard, for petitioner.

T. S. Riley, Atty. Gen., for respondent.

DENT, J. In the matter of the application of the Wheeling Bridge & Terminal Railway Company for a mandamus to the circuit court of Ohio county, to require it to entertain an appeal from an assessment made by the board of public works, the following is a statement of the case adopted from the brief filed by W. P. Hubbard, Esq., attorney for petitioner: "The property of the Wheeling Bridge & Terminal Railway Company was assessed by the board of public works at $400,000 for the year 1893. Deeming itself aggrieved by such assessment, the railway company sought to appeal from the action of the board to the circuit court for Ohio county, under the provisions of section 67 of chapter 29 of the Code. An appeal was allowed. The board of public works moved to dismiss the appeal on the ground that the circuit court was without jurisdiction to entertain it. The court, holding that the statutory provisions above mentioned are unconstitutional, dismissed the appeal. The railway company now asks a mandamus to require the circuit court to entertain and decide the appeal, and thus presents to this court the question of the constitutionality of the statutory provision permitting such appeal." The attorney general, appearing for the state and the circuit court, insists (1) that section 67, c. 29, of the Code, in so far as it grants an appeal to the circuit court, is unconstitutional; (2) that mandamus is not the proper remedy to review the action of the circuit court in refusing to take jurisdiction of the appeal, as there is a plain, adequate, legal remedy afforded by writ of error. Therefore, the first question for the consideration of this court is, does the constitution prohibit the legislature from imposing on the circuit courts the duty of taking jurisdiction, and hearing appeals, in the matter of ascertaining the true value of property under the law for the purpose of taxation? If it Is a question of doubt, it must be resolved in favor of the legislative right, and against the court's exclusiveness, as is said by Judge Brannon in the case of Mackin v. County Court, 38 W. Va., 338, 18 S. E. 632: "Courts cannot too often repeat what has been so often stated that it seems threadbare, —that all courts, while they must defend the constitution, and the rights of the people under it, even against the legislature, yet in so doing they must move with the most solemn caution, resolve all doubts in favor of the act, and never, except where the act is very plainly and palpably, and beyond doubt, violative of the constitution, overthrow an act of the legislature;" citing Bridges v. Shall-cross, 6 W. Va. 568; Com. v. Moore, 25 Grat. 954; Slack v. Jacob, 8 W. Va. 612. While this is true in all cases, it has greater force, if possible, where the legislature, as in the present instance, instead of depriving persons of their rights, privileges, and property, is seeking to extend and preserve them.

The circuit court, to support its refusal to take jurisdiction of this controversy, relies on article 5 of the constitution, which is in these words: "The legislative, executive and judicial departments shall be separate and distinct, so that neither shall exercise the powers properly belonging to either of the others; nor shall any person exercise the powers of more than one of them at the same time, except that justices of the peace shall be eligible to the legislature." If this article stood alone, unmodified by other provisions of the constitution, and the ascertainment of values for taxation purposes was inherently legislative, we could not for a moment hesitate in saying that the circuit court's position was impregnable; but the constitution, within itself, after the declaration of this general doctrine, proceeds to make many laps of the various departments, so as to make them mutually dependent upon and supportive of each other; thus welding them into an harmonious whole, or three distinct departments in one, for the preservation, at the smallest expense possible, of the largest freedom of individual rights consistent with the general welfare. Were it practical to keep these three departments wholly distinct, the increase of the necessary offices and officers would be so great, and the expense thereof so burdensome, as to render the administration of the government unbearable, especially to the citizen taxpayer who must contribute, and yet not share in the distribution of the taxes. So that, while we find that the constitution, as much as it is possible to do so, keeps the heads of the three departments comparatively distinct, and independent of each other, yet as we move down the scale these several powers become more complicated and...