118 Va. 607 | Va. | 1916
delivered the opinion of the court.
Certain hotels in the city of Richmond instituted these proceedings under sections 567 and 568 of the Code, seeking relief from alleged erroneous assessments of license taxes imposed upon them, respectively, for the year 1913. Upon the hearing, the lower court held that the license tax in question had been erroneously assessed against each of the hotels, and entered an order directing the Commonwealth to refund the same. Upon a petition for rehearing filed by the Commonwealth, the court set aside its order directing the erroneous tax to be refunded and ordered the proceedings to be dismissed upon the ground that the amount of the license tax for the year 1913 had been voluntarily paid to the Commonwealth by each of the hotels, and, therefore, that the State could not be required to refund the same.- To that order, by which the Hotel Richmond Corporation, Jefferson Realty Corporation, Lexington Hotel Company, Inc., and Murphy’s Hotel, Inc., were aggrieved, this writ of error was awarded.
We are of opinion that the lower court correctly held that the license tax for the year 1913 imposed upon the appellants, respectively, had been erroneously assessed against each of them. Under the revenue law of 1902-3-4, known as the “Mann Law,” Code, 1904, p. 2253, a hotel is defined as follows: “Any person who shall for compensation furnish lodging, diet and entertainment for travelers, sojourners, guests or boarders in his house and shall also sell by retail wine, spirituous or malt liquors or any mixture of them, shall be deemed to keep a hotel,” etc. The license tax for conducting the hotel business, uuder this act, Avas graduated according to the population of the toAvn or city in which the hotel was located, with an addition
The remaining question is whether or not the plaintiffs in error can be defeated of their statutory right to have the tax erroneously assessed for the year 1913 refunded, upon the ground that its payment was voluntary.
Section 567 of the Code provides that any person assessed with a license tax, aggrieved thereby, may within one year after such assessment apply for relief to the court in which the commissioner qualified, etc. This section further provides that the attorney for the Commonwealth must defend the application, and the commissioner of the revenue be present and examined, which facts must be certified by the court. Section 568 provides the relief that is to be afforded when the erroneous assessment is established. It says that if the court be satisfied that the applicant is erroneously charged with a license tax, and that the erroneous assessment was not caused by the failure or refusal of the applicant to furnish the commissioner, on oath, with the necessary information, etc., the court may order the assessment to be corrected and the applicant exonerated from the payment of so much as is erroneously charged, if not already paid, and if paid that it be refunded to him. A copy of such order is directed to be certified to the auditor of public accounts and the State treasurer.
The legislature clearly recognized that justice obviously demanded that a tax illegally or erroneously exacted from the citizen, should be restored to him when application was made for such return within the prescribed time, and the safeguards thrown around the State were complied with. The statute in plain terms prescribes the conditions upon which the erroneous assessment shall be refunded, and it nowhere intimates that if
The cases of Va. Brewing Co. v. Commonwealth, 113 Va. 145, 73 S. E. 454; Phoebus v. Manhattan Club, 105 Va. 144, 52 S. E. 839, 8 Ann. Cas. 667, and Richmond v. Judah, 5 Leigh (32 Va.) 331, have been cited in support of the contention that a tax voluntarily paid cannot be recovered hack. These decisions are, in our opinion, not in conflict with the conclusion reached in the present case, where the erroneous tax which has been paid is restored to the aggrieved citizen by virtue of a plain statute, which provides that it shall be refunded.
The judgment complained of must be reversed, and this court will enter such order as the lower court should have entered in conformity with the views expressed in this opinion.
Reversed.