Whitlock v. Hawkins

• Decision Date: 21 April 1906
• Citation: 105 Va. 242,53 S.E. 401
• Parties: WHITLOCK et al. v. HAWKINS, Revenue Com'r. O'FLAHERTY. v. COMMONWEALTH. CANNON et al. v. HAWKINS, Revenue Com'r.
• Court: Virginia Supreme Court

53 S.E. 401

(105 Va. 242)

WHITLOCK et al.

v.HAWKINS, Revenue Com'r.

O'FLAHERTY.

v.COMMONWEALTH.

CANNON et al.

v.HAWKINS, Revenue Com'r.

Supreme Court of Appeals of Virginia.

April 21, 1906.

1. Statutes—Title—Sufficiency.

The act of December 10, 1903 (Acts 1002-03-04, p. 610, c. 388), which amends and re-enacts Code 1887, c. 23 [Va. Code 1904, p. 231], relating to the assessment of land, and which provides for the appointment of assessors, is void because it failed to receive in the senate the vote of a majority of the members elected, as it carries an appropriation. Act March 17, 1900, entitled "An act to amend and re-enact chapter 23 of the Code * * * in relation to the assessments of lands * * * as the same was amended and re-enacted by chapter 388 of the acts of assembly, * * * approved December 10, 1903, and to validate assessments * * * under the aforesaid act, * * *" re-enacts in terms the act as passed December 10, 1903, and confirms assessments made in compliance therewith. Held, that the title of the act of 1906 embraces but one subject, within Const. § 52, providing that no law shall embrace more than one subject, which shall be expressed in its title.

2. Constitutional Law—Legislative Authority-.

The state Constitution is a restraining instrument, and the General Assembly possesses all legislative power not prohibited thereby.

[Ed. Note.—For cases in point, see vol. 10, Cent. Dig. Constitutional Law, § 30.]

3. Same—Retrospective Laws—Validity.

Retrospective laws are not repugnant to the state or federal Constitutions, unless they partake of the nature of ex post facto laws, or impair the obligation of contracts, or deprive a citizen of property without due process of law.

[Ed. Note.—For cases in point, see vol. 10, Cent. Dig. Constitutional Law, § 526.]

4. Same—Curative Acts.

A curative act can only be effectual to do that which the Legislature would have been competent to provide for and require to be done by a law prospective in its operation.

[Ed. Note.—For cases in point, see vol. 10, Cent. Dig. Constitutional Law, § 536.]

5. Taxation — Assessors — Appointment —Statutes.

The act of December 10, 1903 (Acts 1902-03-04, p. 626. c. 401), providing that the jurisdiction vested in the county courts and the judges thereof, under the laws of the state, shall be vested in and exercised by the circuit courts and the judges thereof, authorizes the circuit courts and the judges thereof to appoint assessors, which authority previously vested in the county courts and the judges thereof.

6. Statutes—Title—Sufficiency.

The act of December 10, 1903 (Acts 1902-03-04, p. 626, c. 410), entitled "An act vesting in the circuit courts * * » and in the judges thereof the jurisdiction and powers now vested in * * * the county courts or the judges thereof, " etc., and providing that the jurisdiction vested in the county courts and the judges thereof shall be vested in the circuit courts and the judges thereof, is not repugnant to Const. § 52. providing that no law shall embrace more than one subject, which shall be expressed in its title.

[Ed. Note.—For cases in point, see vol. 44, Cent. Dig. Statutes, §§ 133-136, 184.]

7. Same — Amendment — Invalidity of Amendatory Act-Effect.

Where a statute which undertakes to amend and re-enact an existing statute is invalid, the existing statute remains in force.

[Ed. Note.—For cases in point, see vol. 44, Cent. Dig. Statutes, § 211.]

8. Same—Curative Statutes—Validity.

The act of February 9, 1904 (Acts 1904, p. 13, c. 14), confers on the circuit courts and the judges thereof the authority to appoint assessors. The act of December 10, 1903 (Acts 1902-03-04, p. 610, c. 388), amends and re-enacts Code 1887, c. 23 [Va. Code 1904, p. 231], relating to the assessment of lands, and provides for the appointment of assessors by the circuit and corporation courts. The circuit courts appointed assessors who qualified and entered on the discharge of their duties. Subsequently the act of 1903 was held invalid. Hell that, as the assessors were officers de jure, their acts in making assessments, as authorized by the invalid act of 1903, though invalid, could be confirmed by a curative statute not in conflict with constitutional provisions.

9. Constitutional Law—Due Process of Law.

The act of March 17. 1906, re-enacting the act of December 10, 1903 (Acts 1902-03-04, p. 610, c. 388), amending and re-enacting Code 1887, c. 23 [Va. Code 1904, p. 231], relating to assessment of land and confirming assessments made in compliance with the act of 1903, amends section 444 of the Code, as amended by the act of March 15, 1904 (Acts 1904, p. 310, c. 195), so as to provide that any person aggrieved by an assessment may apply to the courts for relief before the 1st day of February of the year next succeeding the assessment. Held, that so much of the act of 1906 as amends section 444 operates prospectively only, and one aggrieved by an assessment under the act of 1903 has the right to have the same corrected, as authorized by the law in force prior to the act of 1906 [Va. Code 1904, § 6], providing that no new law shall affect any right arising before it takes effect, and hence the act of 1900 is not invalid as depriving one of his property without due process of law.

10. Taxation—Assessments—Return of Assessments—Time to Make.

An assessment is not invalid because of the assessor's failure to return it until after the date fixed by law for its delivery, where the assessment is returned in time to give a person affected thereby time to make objection and obtain redress in the manner prescribed by law.

Appeal from Law and Equity Court of City of Richmond.

Error to Hustings Court of Richmond.

Bill by Charles Whitlock and E. Whitlock against O. A. Hawkins, commissioner of revenue for the city of Richmond; petition by James E. Cannon and others against the same defendant for writ of mandamus; and petition of D. C. O'Flaherty, substituted trustee, against the commonwealth. Decree for defendants in the first suit, and plaintiffs appeal. Judgment for the commonwealth, and O'Flaherty brings error. Decree against Whitlock and others affirmed, judgment in action by O'Flaherty affirmed, and petition for mandamus denied.

O'Flaherty & Fulton and Cannon & Gor don, for plaintiffs in error.

Wm. A. Anderson, Atty. Gen., and H. R. Pollard, for defendants in error.

KEITH, P. These cases were heard together, and involve substantially the same questions of law and fact On the 10th of December, 1003, the General Assembly of Virginia passed an act to amend and re-enact chapter 23 of the Code of 1887 [Va. Code 1904, p. 231], in relation to the assessment of lands and lots. It was approved by the Governor and published by authority of law among the general acts of that session. By section 437 of that act (Acts 1002-03-04, p. 610, c. 388) the circuit and corporation courts were authorized and required to appoint, on or before the 1st of January, 1905, and every five years thereafter, proper persons to assess the value of all lands and lots, with the improvements thereon, within their respective counties and corporations.

This was done. The assessors were appointed, gave the bonds and took the oaths prescribed by law, and entered upon the discharge of their duties.

The act was passed in pursuance of a constitutional mandate, providing that the lands of the commonwealth should be assessed at the time and in the manner prescribed by this act, and by section 444 ample provision was made for any person believing himself aggrieved to come before the circuit or corporation court, as the case might be, of the county or corporation in which the land lies, at any time prior to the 1st day of February of the year next succeeding such assessment The attorney for the commonwealth was required to defend such applications, and the court was authorized, if satisfied that the assessment was too high, to reduce the same to what, in its opinion, was the true value of the property assessed, and, if of the opinion that the assessment was too low, to increase it in like manner; and it was provided further that such applications should have precedence over all other causes pending in said courts.

The act, therefore, had every outward semblance of authenticity. It was passed in pursuance of the powers and duties vested in the Legislature by the Constitution, and it met every requisite of a valid and constitutional law; and recognizing that the imposition of taxes and levies is a taking, within the meaning of the Constitution of the United States, ample provision was made and opportunity afforded the owner to be heard and to contest the justice of the assessment, so that on the face of the statute no man could be deprived of his property without due process of law.

Coming before the courts, under section 444 of the act of December 10, 1903 (Acts 1902-03-04, p. 613), to have erroneous assessments corrected, it was discovered that the act carries with it an appropriation of money out of the public treasury, and that it had not received in the Senate the vote of a majority of all the members elected to that house, as the Constitution of the state requires; and it is conceded that, not having received the necessary num ber of votes, the act failed of Its passage, and is null and void.

To meet this situation, the Legislature, on the 17th of March, 1906, passed an act, the title of which is "An act to amend and re-enact chapter 23 of the Code of Virginia, in relation to the assessments of lands and lots, as the same was amended and re-enacted by chapter 388 [page 610] of the Acts of Assembly, 1902-03-04, approved December 10, 1903, and to validate assessments and other acts done under the aforesaid act of Assembly." Then follows the act which re-enacts in terms the act as passed on December 10, 1903, and further provides that "all assessments and all other acts of every kind which have been made or done in compliance with the terms of chapter 388 of the Acts of...