*1 аs disability” in resulting permanent “Silicosis lungs.” exists stage, the third now used the definition of 6-a, accompa- can be defined as silicosis in Section well use of lungs, nied tuberculosis of because tubercu- or not language accompanied “whether true, being properly That we cannot lungs.” losis sense,, its technical word as there used in consider tuber- accompanied treat it as silicosis but we should not accom- “whether or The words lungs. culosis removed the merely lungs” by tuberculosis panied could you that before existing theretofore requirement must at the same stage you in the third have silicosis together pro- both of tuberculosis degree have some stage disability. total ducing permanent employed language of the opinion
We are respect 6-a with amending Legislature em- language stage, supported third silicosis in the silicosis, and when in the definition general ployed considered, justified sepa- history entire Act and the Appeal Commissioner entered-by rate orders allowing compensation, hold that therefore Board. We Commissioner stage, third for silicosis intent of the clear followed Board Appeal are aforesaid error, and their orders commit did not affirmed.
Affirmed. etc. Beckley, Of al. et Hatcher, Theo 782) (CC 16, 1951. October Decided September Submitted *2 Given, Judges, Box and dissenting. Ashworth,
Robert J. Edmundson, James K. for plaintiff. Benjamin Tissue, D. for defendants. Judge:
Lovins, This suit comes to this Court on the certificate Circuit Raleigh Court of County. en- Its purpose is force paving liens parcels lots or land spеcially benefited on such streets lots are located.
The Beckley, municipal corporation, sues for the use and benefit of Securities, Investment Inc., a assignee corporation, Inc., of Vecellio Grogan, and a corporation, brought Hatcher, this suit Theo Williamson, Jennie Rucker, and, and J. H. if the two lat- deceased, ter are all of their at unknown heirs law. The Circuit Court overruled demurrer bill of complaint herein an amended sup- denominated are plemental alleged bill. facts following bill: City Beckley, city an election on held such
the 5th day August, adopted statutory provisions relative to the municipalities. See streets Code, 8-9.
Lot 31 of the Wildwood Addition to the Beck- City of ley conveyed to the Jennie defendant Williamson 7, 1913, Lots 8 October of Section 28 conveyed Central Addition to H. city to J. Rucker by August deed dated
Lot 31 aforesaid in the name was returned of Jennie Williamson, for due taxes of West year and was sold to State of *3 Ra- Virginia West at the tax sale held Shеriff by the of December, leigh in re- County 1927. Lots 8 and 9 were turned delinquent Rucker, in the name of J. H. for taxes of Virginia 1927, due State West year and to the State at the tax sale of sold held Sheriff Raleigh County December, 1928.
The of Deputy Commissioner Forfeited and Delinquent Raleigh Lands of County instituted a suit in the Circuit 1949, of Court said on the 8th county day September, “State of styled Virginia West v. G. F. and Barnard others”, in which J. H. Rucker de- was made party fendant. One of the of that purposes suit was sell to Lots 8 for and 9 the benefit of the school fund. A similar 1949, suit was instituted on 9th day September, styled “State West v. Elyadia Bassett and others”, in Jennie which Williamson made a was party One defendant. purposes that suit was to sub- Lot 31 ject to sale for the benefit of .the school fund. 8, 9, 31
Lots and were decreed sold Circuit Raleigh County 1949, Court on or about 18, November and the commissioner; accordance with
172 sale, decree of sold the three lots on. the 17th of De- day cember, 1949, The to Theo H'atcher. sale as to Lot 31 12, 1950, was on January confirmed and as to and Lots 20, 9 the sale was confirmed on 1950'. The February dep- uty thereupon commissioner executed and delivered of conveyance defendant Hatcher deeds for the three lots. plaintiff The in the instant suit derives its' liens initiated the 9th project day reason of on paving 1948, 31, March, August, Lot and in the month of as to a con- Lots 8 and 9. After certain procedure, as to for and the streets on grading paving tract was awarded are The and grading the three lots situate. accepted having сompleted of such streets to the lots city, apportioned cost benefited, the three including question. specially examination and including proceedings, After further -City the council of the parties, interested notice July assessments as to Lot confirmed the 8 and 9 on October 1949. and as to Lots as to Lots and 9 is of such assessments amount $1133.24 26, 1949, as to Lot interest from July with $309.00 After the confirmation July interest from with were recorded and indexed of such liens same County of the Clerk of office trust deed book in Raleigh County. Court of issued evi-
Thereafter, certificates of assessment were lots in the names of said dencing the assessments Williamson, certificates Jennie J. H. Rucker and Grogan, order Vecillio payable .to being contractors, Investment plaintiff, them assigned Inc., cer- Securities, valuable consideration. *4 Au- Lot was assigned of assessment tificate 9, the as- Lots 8 and certificate was and as gust 2, 1949. November signed on March, the 28th day that on of alleged It is further a res- City Beckley passed cоuncil the certificates issuance the assessment reciting the olution 31; that the certificates issued the and Lots names of J. H. Rucker and Jennie Williamson should be surrendered; that cancelled and new certificates be issued and to the of the certificates in beneficiary place delivered cancelled; and stead of the certificates so that original the name of Theo re-issued certificates should be the Hatcher, lots; the owner the present the Raleigh in the office of the clerk of county County records accordingly. should corrected
It that Theo Hatcher had no in- alleged by plaintiff original terest in the time the assessments said lots the the made; the other only person were than according an lots Virginia having interest in said West County clerk county Raleigh to the records of the and Jennie H. Rucker or as to Lots J. his heirs Rucker and Lot or her heirs as to Williamson re- Williamson, assignees, their heirs or were entitled State; the and that these by from sale deem until confirmation sales continued rights of for- commissioner by decreed suits com- had been lands. The feited and had been from such accruing and the liens pleted, Raleigh County clerk of county the officeof the recorded in Hatcher in Decem- the land purchase prior notice of actual the lots with ber, 1949, he purchased as asserted plaintiff the liens due existence of this suit. following motion certified trial of its own court
questions: claimed from lien arising the equity
Was the State made sale extinguished by plaintiff Theo Hatcher? West City Council made
Is the reassessment the exist- validity upon for its Beckley dependent extin- lien, has been of a and if such lien ence valid Hatcher, to Theo guished by sale ineffectual? the reassessment from the arising equity
The trial court held that the had not been extin- held *5 the com- by the two suits instituted guished lands Raleigh forfeited of delinquent' missioner of of the council the reassessment made County; power the of exercise of City Beckley proper was the lien created Legislature; .the granted by the lien on existing reassessment was valid and suсh to the Hatcher. belonging lots defendant rulings the following The trial also certified court which are to the certified subsidiary questions: * ** of City
“1. the power it was within time when Beckley to at the levy against property this title thereto in the of West was vested taxes. of a forfeiture for the of nonpayment virtue is “2. That the of was not a City Beckley ll-A-4-33 entitled to redeem under of Code provisions [sic], therefore City Beckley and that the of vir- tue of that or interest deprived any right not of section in the lot sought tо be sold. Securities, Inc.,
“3. That the in inter- party Investment claiming has the same the of rights City Beckley est lots described a lien and has the same to sell the plaintiff’s complaint payment bill certificates.” paving the commis- brought by in the two procedure suits ques-
sioner of and forfeited lands is the legality tioned and sales of suits, is not and confirmed in those two question, ordered Nor hereinabove stated. challenged, except as Beck- the common council of proceedings by creation of ley relative to the of the streets and that defendant objected challenged, except the liens to or devoid Hatcher contends that is enforce the to sell lands to authority lawful power liens, statutory relative provisions because school fund and for the benefit sale lands interpreting in applying decisions this Court statutes.
Under the provisions abutting on street subject is to a lien from improved by paving In laying passed. date ordinance assessment July this case ordinances were passed and October 1949. On those dates lots were *6 State of Virginia, having West become property 3, 8, Article irredeemable under the of Section provisions Session, 160, Regular of the Legislature, Chapter - * 1947. of an abso- Virginia The State of was the owner West E. 1, Coal 43 Company, lute title. State v. 130 W.Va. S. owners, The former under the provisions 2d 625. above, not own the property mentioned did
statute made, only but had which assessment was against grace. a matter of redeeming the same as privilege 174; v. Blevins, 350, State 131 Va. 48 S.E. 2d State v. W. they 468. And also have King, 64 S.E. W.Va. surplus to distribution
constitutional 5 Article XIII of the Consti- Sec. of sale. proceeds of re- Virginia. privilege of the State West tution the confirmation of upon the land was ended deeming of the school fund. brought the benefit sale in the suits 759; 472, 52 E. Sec. Gray, v. 132 W. Va. S. 2d See 160, Acts of the Legislature, Art. Chapter the State owned that the lots were Notwithstanding assessed, pav- the time the liens were at Virginia of West against prop- levied could have been ing assessments ¡the municipalities authority upon conferred erty under Acts of the Hunt- Holswade 7, 1949. See March effective 124, 122 449. It was held S.E. ington, 96 W.Va. not void be- certificate was
Holswade case that the State. against it owned property cause was issued case the Holswade true that the opinion It is against indicate that no lien adverted to above statute authorized, but of the State created the property against to be made state for assessments providing statute property requires сharge of the fis- “having cal affairs of such owner or the management * * *” make property shall proper arrangements payment assessments when same become due. true, That being even if the lots were the the State of West the time of the pav- street think ing, we that the subject lots were to an assessment against them no though enforceable lien could have been created the State of West Virginia.
For
holdings
diverse
in other jurisdictions,
relative to
land,
assessments
state
annotаtion,
owned
see
A.L.R.
and as to their enforceability, see annota-
tion,
We are thus confronted with situation where the state was the owner of property against the as- sessment could be made without lien, creation of a but the property was not assessed the name State West Virginia but in the name of former owners who did own the property. not. In this situation *7 logical to say that the City assessments first made the of Beckley against the three lots mentioned in the names of Rucker and Williamson were ineffectual and void. ;s
It contended by the plaintiff that the City Beckley was not a person within the meaning statutory provisions requiring redemption before confirmation and thus required to redeem the land. We are in agreement with that contention as to the City Beckley. City Charleston v. Southeastern Co., Construction 134 W.Va. 666, 64 S.E. 2d Lumber Co. v. Bros., Carter 78 W.Va. 11, 88 1034; Code, S.E. 2-2-10. But arewe not to disposed hold that the payee of the certificates assignee and its should be when, so classified fact law, and in they are рersons within the meaning It statutory provisions. follows as a necessary consequence that the first assess void, ments having been neither the City Beckley, payee the certificates, nor assignee, its any right had or duty to redeem the lands from sale in suits brought by the deputy commissioner unless it that may be said in view of the reassessment statute hereinafter discussed it may have been the pro- tect its interest in those intervention suits. We do not however, pass upon question, the plaintiff since admits the surrender and cancellation of the certificates evidencing first attempted assessments made council of Beckley. 33, 4, defendant relies Article upon Chap- 160, 1947,
ter Session, Acts of Legislature, Regular effect, that a made provides, purchaser at sale by a and forfeited commissioner suit, in a lands school land his assigns, acquires heirs or right, all the title and interest and to the real estate at was vested in the state of the execution time deed, or delivery by any who was person entitled to Aftеr redeem. land has irredeemable become privi- no person entitled redeem but is accorded to redeem. Arti- lege Under of Section provisions 160, id., former Chapter cle owner of real estate “may at a purchased sale the sheriff redeem such sales eighteen from the months any auditor time within ours.) after the date of purchase.” (Emphasis Sec- Article tion in- of real estate whose “Any owner provides assessment, subject separate any not or person
terest is land, there- or an undivided interest having a in, other interest in the land any person having an * * * * * *” all of protect may pay which he desires to (Emphasis ours.) assessed thereon. taxes there in this case do not disclose pleadings of an undivided interest owner assessment, nor subject does separate which was having a lien with reference to provision *8 noted, Beckley, of above apply City on the land not a Beckley of reason Although of meaning payee within the the statute. issued, сertificate as well as its as- the first of the first as- signee, by had no lien on virtue sessments, good have may it said that it would be
178
its
for
protect
judgment
business
lots,
not
statute
required by
but was
interest
so.
do
Court
adverts to
decision
this
plaintiff
Lewis,
2
that the
wherein it was held
Smith v.
W. Va.
money
of a trust
to secure the payment
lien
deed
delinquent for
extinguished by the sale of lands
.to
subsequent
of taxes. Plaintiff cites cases
nonpayment
from the
departed
case wherein this Court
the Smith
“If at the
case,
in that
and held
enunciated
prinсiple
tax
delinquent
the land sold
sale]
time
such sale
[at
trust, or if there
or
be
a.mortgage
deed
be under
thereon,
mortgagee,
and such
or incumbrance
other lien
fail
trust,
trustee,
que
cestui
lienor or incumbrancer shall
¡time
law,
by
prescribed
to redeem the same within
mortgagee,
title
and interest
such
right,
then all
incumbrancer,
trust,
shall
trustee,
lienor or
que
cestui
tax-sale,
at such
in the purchaser
to and be vested
pass
affected
way
shall in no
title to the premises
and his
in-
trust,
or
mortgage,
deed
impaired
Kanawha,
26
See
Summers v.
W.Va.
cumbrance.”
757;
al.,
19, 22,
Eaken, et
28 S.E.
W.Va.
Winning v.
Harmon,
It is settled priv- do not avail themselves private for are barred sale under statute to redeem ilege Moreover, state, unpaid. delinquent taxes due * * *” over pav- “land taxes due state the priority enactment. Section statutory liens is declared ing March (effective 7, 1949.) judicial the effect decisions the statutes
Giving a conflict may give rise to for defendant contendеd of land relating to the sale statutory provisions between creation of the assessment and taxes of this duty It is the by municipalities. liens if one exists. State conflict to reconcile such Court 1, 5, Griffith, State v. Anderson, 109 S.E. 89 W.Va. *9 582, 584, S.E. 302 The rights W.Va. and procedure . in involved the sale of non-pay lands in ment taxes rest a measure on of Arti provisions cle XIII of the Constitution of this State. The creation and enforcement of liens statutory pro rests upon visions, enacted constitutional pursuant authority. ¡that
It is to be nоted
a
a
State sells to
in
purchaser
school
title
from
distinguished
land suit
derivative
as
original
an
title. Section Article
Regular
Session.
What has
been hereinbefore discussed does
touch
nor solve the vital
upon
question
pro-
involved
this
indicated,
As
have
if
ceeding.
we
asserted
prior
by the
contract
plaintiff,
private
created
between
we think
take the
persons,
defendant would
lien. But
hot the
discharged
any
such is
here.
case
We are confronted with the
whether
question
the salе to Hatcher barred the
of Beck-
power
¡to
ley
the three lots and thus create
valid lien.
reassess
“In
Reassessment
following
is authorized
statute:
the case of the
of any permanent
improve-
construction
an
heretofore
laid or
ments where
assessment has
been
thereof,
hereafter
which said
may
be laid
the cost
or
or
reason
assessment
shall be void
voidable
errors,
or
under
irregularities
proceedings
defects
made,
as-
was
or in case such
improvemеnt
which such
the wrong person
have
made against
sessment shall
to made
or shall have been omitted
be
property,
or
duty
was
shall be
proper,
case where
same
completion
within ten
after the
governing body
years
after
court
have de-
any
or
shall
improvement,
such
invalid,
notice
given
to cause
to be
clared such assessment
the cost of
against
improvement
whom
said
any person
assessed,
intention
or
of its
might
have been
properly
a time and
fixing
place
lаy
such assessment
and show cause
may appear
the owner
in the manner provided
be served
same.
notice shall
Said
pro-
of notices
assessment
giving
article in the
in this
law. At the
provided
other manner
ceedings,
any
time
aforesaid,
or at
time and
notice
under
place,
thereafter,
lay
governing body
proceed
shall
improvement
an assessment for the cost
levy
at the
proper proceedings
have been lawful under
would
unless the owner
improvement
comрleted,
time said
the same.
good
notified shall show
cause
so
upon
be a lien
reassessment so laid shall
*10
from
provided
in the manner hereinabove
therefor
liable
with in-
improvement,
of the
completion
date
may
certificates
therefrom,
assessment
and proper
terest
may
and the lien
issued,
had, and payment
recordation
be
terms
the same
upon
manner ánd
enforced
same
be
completion
of the
at the time
have
proper
as would
been
therefor
thе assessment
had
improvement
of the said
13, Chapter
Section
laid and levied.”
then properly
1949).
(effective March
1949
Acts of the
juris
in other
challenged
have been
statutes
Similar
not void
statute is
of this
enactment
dictions. The
Suburban
Washington
law.
of due
process
violative
634;
Spen
A.
(Md.), 142
see
Noel
Commission v.
Sanitary
921;
763, 8 S. Ct.
345, 31 L. ed.
Merchant, 125 U.S.
cer v.
351, L. ed.
Kelleher,
49
195 U.S.
Seattle v.
see
In
Salem,
Lest it be that to a lien for impress paving pre- to the viously completed prior purchase done three lots defendant Hatcher of his deprives property, ¡this we note that the Court deprive private decisions on who holds land sold in suit person, prior fund, Sum- right. of the school of a property benefit Kanawha, mers v. supra. charged
In that Hatcher with view fact un- knowledge improvements existence claim he had paid purchased, lots had benefits from actually special derived situated, no in- they streets him. He justice simply required pay is done improvements presumably specially which have bene- lots he purchased. fited and added value to *11 that opinion In accordаnce it is our foregoing, with the the the to reassess power Beckley conferred on made extinguished by the three lots not the sale was of for- the commissioner brought by deputy the suits question, feited lands. As the second delinquent and 13, Chapter that with Section upon compliance we hold im- 1949, a may Acts of the valid the Relative to the reassessment. posed upon by the rulings, we are that it was with- subsidiary opinion city levy of the a assessment power in the the Vir- owned State West against ruling are in accord with the made ginia, and we also a that is not person trial court redemp- meaning relating of the statute within But tion of from the sale for taxes. we delinquent lands court, holding of the trial modify ruling the third are entitled assignee certificates and its payee classification, payee to the and hold same meaning its are within the stat- assignee modified, ute. As of the Circuit Court rulings are Raleigh County affirmed.
Modified affirmed. Given, Judge, dissenting:
Being attempted reassessment opinion against void, Hatcher I dissent. stat- respectfully ute in the re- quoted majority authorizes such opinion assessment only if it “would lawful under have been proper at the time proceedings improvement said was * * completed, Lot 31 improvement as to was 26,1949, completed July and as 8 and 9 on October to Lots 8, 1949. The State not a to the reassessment party was and, proceeding admittedly, reassessment was void to it. Hatcher any prop- did not obtain interest erty until his from the commissioner purchase lands, long improve- forfeited and after the Therefore, ments were assessment completed. against Hatcher “lawful would have been under proper completed, proceedings * [*] at the time plain said reason that improvement a valid was as- against sessment can not be made a who owns no interest in property.
I can not believe that such reassessment of real subsequent purchaser years estate within ten from the date of the completion improvement of an is author- ized, intendment, either expressly the statutе quoted. To so hold would deprive subsequent purchasers right rely public records as to the existence assessments, or nonexistence of liens of such made But, majority, statutes. plain recording says “Hatcher with charged knowledge existence he had of the improvements purchased [*] * I unpaid can not reconcile this conclu- claim the lots *12 of the majority sion with its conclusion that the first as- “were Why require sessments ineffectual and void.” to subsequent purchaser take notice of a lien? Can void exist, into a we breathe life claim that has ceased to has expired by operation law? a re- majority authority holding cites violating is not unconstitutional as
assessment statute and State due Federal Constitu- process provisions I no think there can be Properly interpreted, tions. stat- constitutionality doubt as to the reassessment however, I majority, ute quoted. interpreted As majority think it opinion permits unconstitutional. a lien the reassessment to be made and to becоme ten of a it within property person purchases after Such years completion improvement. to show would be denied or person opportunity confiscatory, that the would be improvement costs made, or not have or that should improvement to the prop- other available who owned grounds time Neither erty improvement completed. at the ten years purchased could owner who after the show completion improvement enjoyed had been improvement full use of benefit and cases, under many It certain that in former owners. would be holding, subsequent purchasers majority in full enjoyed pant improvements forced to pay a taking This of property former owners. amounts any op- of another without of one benefit No need be cited show authority defend. portunity of due process. void procedure that such this joins Fox say Judge I am authorized dissent.
O. F. Miles Compensation Commissioner Corporation Carbon Carbide and Union (No. 10407) 16, 1951. 5, 1951. October Decided September Submitted