Lead Opinion
This is a statutory appeal from a judgment of the Circuit Court of Kanawha County under the provisions of Code, 11-3-25, as amended, by the taxpayer, The Ka-nawha Valley Bank, a corporation, by which the trial court found that the true and actual value of the taxpayer’s fifteen thousand shares of capital stock was $6,000,000.00, and assessed such shares at that amount for the purpose of levying an ad valorem tax thereon. On June 17, 1958, in a four to one decision of this Court, the judgment of the Circuit Court of Kanawha County was reversed and the case remanded to that court. On the 15th of December, 1958, upon petition of counsel for the taxing units of government affected, a rehearing was granted, two of the Judges of this Court being noted as voting to refuse the rehearing. The case was re-briefed, reargued and again submitted for decision on January 21, 1959. Although such a proceeding is on the law side, it is by statute, designated an “appeal”, and the parties will sometimes be referred to as appellant and appellees. The Assessor of Kanawha
Thus the sole issue for determination by this Court is whether the trial court erred in holding that this taxpayer suffered a constitutional discrimination by having its property assessed for the payment of ad valorem taxes upon the basis of one hundred per cent of its true and actual value. The burden of establishing that fact was upon the taxpayer, and, unless that discrimination is shown by the evidence, the taxpayer cannot invoke the provisions of the Constitution or any statutory enactment. The provision of Section 1, Article X, of the Constitution, insofar as pertinent for consideration of that question, reads: “Subject to the exceptions in this section contained, taxation shall' be equal and uniform throughout the state, and all property, both real and personal, shall be taxed in proportion to its value to be ascertained as directed by law. No one species of property from which a tax may be collected shall be taxed higher than any other species of property of-equal value; * * *.”
Code, 11-3-1, as amended, provides that: “All property shall be assessed annually as of the first day of January at its true and actual value; * * *.” The verbatim language of this Section first appeared in the Acts of 1933, however, similar language had been used previously thereto and the substance has remained unchanged since Chapter 118, Acts of the Legislature, Regular Session, 1863.
This taxpayer can make no complaint of discrimination because property of the same species in Kanawha County is not assessed for taxation purposes in the same manner that its property is assessed. The record is clear that the stock of all other banking institutions in Kanawha County, and, indeed, in the State, with one possible exception, is assessed for taxation purposes
John M. Slack, Jr., at the time Assessor of Kanawha County, and now Congressman from the Sixth West Virginia Congressional District, testified at the hearing before the County Court. He was asked these questions and made these answers:
Q: “Having arrived at a value by the book value method, what percentage of that true and actual value have you assessed the stock?”
A: “One hundred per cent.”
Q: “What percentage of true and actual value have you assessed other property in Kanawha County for the year 1957 ?”
A: “We have made an attempt to assess it at 40 per cent, according to Senate Bill 3.”
Q: “Have you made any effort to assess other property in Kanawha County at 100 per cent of its true and actual value ?” -
A: “None other than Class 1 property, and that, of course, we inherited from procedure carried on in the past. * * *”
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COMMISSIONER GLENN: “The question in my mind was whether it was clear that Class 1 property is all assessed at 100 per cent.”
THE WITNESS: “Cash on hand and money in the bank at 100 per cent, accounts receivable at 60 per cent, notes receivable at about 60 per cent, and the way you determine that is how they are supported, by deed of trust, security and so forth.”
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Q: “Do you know what percentage of true and actual value livestock is assessed at?”
A: “Frankly, I don’t.”
Q: “Is it very low?”
A: “It is very low.”
Q: “Then as I understand, you have used less than 100 per cent of true and actual value in other classes of propertry?”
A: “Yes, in case of inventories we assess inventories at 50 per cent. We assess machinery and equipment at 20 per cent of the original cost. We find that by using this method we come up with nearer the same figure that the Tax Commissioner uses in arriving at his values for State aid purposes.”
Q: “And real estate, what percentage of the true and actual value?”
A: “Of course, we have a gross inequality there, according to the State Tax Commissioner our real estate runs from something like 9 to 130 per cent. As far as I know we are placing all real estate on the books at not less than 40 per cent of the Tax Commissioner’s appraisal, in order to qualify for State aid.”
Q: “Would you consider that not less than 40 per cent of true and actual value?”
A: “No, it is 40 per cent of the State Tax Commissioner’s appraisal, and he is basing his appraisal upon 1950 costs, which he states is about 25 per cent less than costs would be on today’s market.”
Q: “Do you consider that you are assessing real estate on the average in Kanawha County at 100 per cent of true and actual value ?”
A: “I do not.”
Q: “At about what percentage of true and actual value would you estimate you are assessing it?”
A: “There again we go back to the survey of the State Tax Commissioner, and he claims it is about 35 per cent of his appraisal, which would be 25 per cent less than the value as of 1957. Senate Bill 3 refers to true and actual value. However, for purposes of this survey the Tax Commissioner’s Property Evaluation Department is using replacement costs less depreciation, and they are based upon 1950 replacement costs, and according to them the replacement costshave increased from 1950 to 1957 by some 25 per cent.”
Q: “Then would that mean that if you were assessing at 40 per cent of the 1950 value that you would actually be assessing real estate at less than 40 per cent of the true and actual value today ?”
A: “I would say it would, yes.”
“Senate Bill 3” to which the witness refers is Chapter 1, Acts of the Legislature, 1955, First Extraordinary Session, which provides that a county cannot be eligible for its full allocation of State aid for schools for the year 1957 unless for that year the assessed valuation of non-utility property in such county for taxation purposes is not less than forty per cent of the appraised valuation of such property as determined by the Tax Commissioner, based upon true and actual value.
It is clear beyond doubt from this witness’ testimony that no species of property in Kanawha County was assessed for the year 1957 for taxation purposes at one hundred per cent of its true and actual value except bank stock and “money in the bank”. In November, 1958, the people of this State by their vote amended Section 1, Article X, of the Constitution, to exempt bank deposits from taxation. It is also clear from his testimony that each and every species of property subject to ad valorem taxes situate in Kanawha County, with the exceptions above noted, and real property in particular, was by a preconceived plan assessed for taxation purposes at less than its true and actual value. The only question that remains for determination is whether such a scheme of taxation is in violation of Section 1, Article X, of the Constitution.
Counsel for the taxing units say that that question has already been decided by this Court, cite several cases in support of this contention, and invoke the rule of stare decisis. As a prelude to a consideration of these cases, it should be noted that the first of them was not decided until 1896, whereas the Constitution of this State became operative on June 20, 1863, and on July 28, 1868, the XIV Amendment to the Constitution of the United States was adopted. There was an Amendment to the pertinent Section of our Constitution in 1872, and thereafter it read as follows: “Taxation shall be equal and uniform throughout the State, and all property, both real and personal, shall be taxed in proportion to its value, to be ascertained as directed by law. No one species of property, from which a tax may be collected, shall be taxed higher than any other species of property of equal value; but property used for educational, literary, scientific, religions or charitable purposes; all cemeteries and public property, may, by law, be exempted from taxation. The legislature shall have power to tax, by uniform and equal laws, all privileges and franchises of persons and corporations.” The word “cemeteries” and the last sentence were added by the Amendment, otherwise the Section is the same as provided in the Constitution of 1863.
Section 1 of the XIV Amendment provides: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
In Charleston & S. Bridge Co. v. Kanawha County Court,
The next pertinent decision of this Court is West Penn Power Company et al. v. Board of Review and Equalization of Brooke County,
Christopher v. James, Tax Commissioner,
At the general election in November, 1932, the voters pf this State ratified an amendment to Section 1, Article X, of the Constitution, usually referred to as the Tax Limitation Amendment. After the amendment was adopted, Section 1, Article X, insofar as pertinent, read as follows : “Subject to the exceptions in this section contained, taxation shall be equal and uniform throughout the State, and all property, both real and personal, shall be taxed in proportion to its value to be ascertained as directed by law. No one species of property from which a tax may be collected shall be taxed higher than any other species of property of equal value; except that the aggregate of taxes assessed in any one year upon personal property employed exclusively in agriculture, including horticulture and grazing, products of agriculture as above defined, including live stock, while owned by the producer, and money, notes, bonds, bills and accounts receivable, stocks
“Classification of Property for Levy Purposes. —For the purpose of levies property shall be classified as follows:
“Class I. All tangible personal property employed exclusively in agriculture, including horticulture and grazing;
“All products of agriculture (including livestock) while owned by the producer;
“All moneys and all notes, bonds, bills and accounts receivable, stocks and any other intangible personal property;
“Class II. All property owned, used and occupied by the owner exclusively for residential purposes;
“All farms, including land used for horticulture and grazing, occupied and cultivated by their owners or bona fide tenants;
“Class III. All real and personal property situated outside of municipalities, exclusive of classes I and II;
“Class IV. All real and personal property situated inside of municipalities, exclusive of classes I and II.”
Thereafter, in 1943, this Court decided the case of In Re: Tax Assessments Against Hancock County Federal Savings and Loan Association,
“* * * We hold that the assessor properly included in his assessment of the association’s property the sum of $650,903.35 covering the reported value of the association’s surplus, undivided profits, reserves and uncollected interests.
“We are fortified in our conclusion by a study of the constitutional provisions relating to taxation which have guided us from the foundation of the state. That all property, both real and personal, shall be assessed, is one of the fixed stars in our system of taxation will be disclosed below.”
Immediately thereafter appears pertinent quotations from Section 1, Article VIII, of the Constitution of 1863, Section 1, Article X, of the Constitution of 1872, and Section 1, Article X, as amended by the Tax Limitation Amendment of 1932. That part of Section 1, Article X, of the Constitution, which, since the Constitution of 1863, has provided that: “* * * No one species of property from which a tax may be collected shall be taxed higher than any other species of property of equal value; * * for the second time made its way into an opinion of this Court, and, furthermore, on one page it was quoted three
In In Re: Tax Assessments Against Charleston Federal Savings & Loan Association, First Federal Savings & Loan Association, West Virginia Building and Loan Association and Empire Savings & Loan Association,
This Court had before it, in Bankers Pocahontas Coal Company, et al. v. County Court of McDowell County,
“With certain exceptions the organic law of this state requires that ‘taxation shall be equal and uniform throughout the State, and all property, both real and personal, shall be taxed in proportion to its value to be ascertained as directed by law * * Article X, Section 1, Constitution of West Virginia. Since the adoption of the classification amendment to the Constitution of this State on August 10, 1932, this Court has considered the question of uniform and equal taxation. In Christopher v. James,122 W. Va. 665 ,12 S. E. 2d 183 , in which a deficiency assessment of State income tax was considered, the Court in relation to the constitutional requirement of equality and uniformity in taxation made the following pertinent statement: ‘That provision means merely that as to classes of property, businesses or incomes there shall be uniformity of taxation.’ The foregoing statement in the Christopher case was approved in In Re: Loan Association,125 W. Va. 426 , 434,25 S. E. 2d 543 . The same principle was likewise upheld in In Re: Tax Assessments,126 W. Va. 506 ,30 S. E. 2d 513 . The judgment of this Court in In Re: Tax Assessments, supra, was affirmed by the Supreme Court of the United States. Charleston Federal Sav. & Loan Ass’n. v. Alderson,65 S. Ct. 863 ,324 U. S. 182 , 89 L. ed. 857. It is well established law in this jurisdiction that the equality and uniformity of taxes are confined to a species of property rather than all taxable property in a taxing unit.
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“When there is a showing, as in the case of Power Co. v. Board of Review,112 W. Va. 442 ,164 S. E. 562 , that property has been taxed on the basis of one hundred per cent of its true and actual value, and that all other property of the same species in the same taxing unit is assessed on abasis less than the true and actual value the assessment on the lands of a complaining taxpayer should be reduced. The opinion in Power Co. v. Board of Review, supra, may be of doubtful force and effect, in view of the comment made in this Court’s opinion in In Re: Tax Assessments, supra, But, giving the opinion in the case of Power Co. v. Board of Review, supra, full force and weight, Bankers and Crozer have not brought their lands within the purview of the holding in that case. The evidence in this proceeding is not sufficient to show that there was a general plan relating to the valuation of lands similar to the lands here considered. Hence, no reduction of the valuation of Bankers’ and Crozer’s lands can be predicated upon the theory enunciated in Power Co. v. Board of Review, supra.”
Although further reference will be made to the decision of this case, it should be noted that, while the statement in Bridge Company v. County Court, supra, that a tax upon all businesses of the same class which is uniform as to that kind of business, is valid, was enlarged in Christopher v. James, supra, to read: “* * * that provision means merely that as to classes of property, businesses or incomes there shall be uniformity of taxation.” (Italics supplied.), such statement was converted in this case'to this language: “* * * It is well established law in this jurisdiction that the equality and uniformity of taxes are confined to a species of property rather than all taxable property in a taxing unit.” (Italics supplied.)
As heretofore stated, this Court held in In Re: Tax Assessments Against The National Bank of West Virginia At Wheeling and The Morris Plan Savings and Loan Company, supra, that under the provisions of Code, 11-3-14, providing for the manner in which the true and actual value of the capital stock of banking institutions shall be determined for tax assessment purposes, is not complied with by adopting and enforcing the “book value” method alone. In the opinion, the Court said: “A number of errors were assigned. We believe, however, that a determination of the following propositions will afford answers to all material questions: * * * (5) whether either of the taxpayers involved has been denied due process of law.” The 7th Syllabus Point relates to the XIV Amendment to the Federal Constitution. There is no syllabus point relating to Section 1, Article X, of the Constitution of this State. However, the first part of that Section is quoted, wherein it is directed that the value of property is to be. ascertained as directed by law, which was the only part of that Section that had any application to the decision of this Court in that case, but, nevertheless, on Page 680 of the opinion appears this paragraph: “Moreover, the uniformity required relates to property of a particular class. It is not required that property, businesses or income of different classes be taxed equally and uniformly. Bankers Pocahontas Coal Co. v. County Court,
In the recent case of In Re: Tax Assessments Against The Southern Land Company, Charles C. Dickinson, et al.,
It is interesting to note that in not one of these cases, and in no other pertinent decision of this Court, has the “no one species” provision of Section 1, Article X, of the Constitution, been discussed, or even mentioned. In a few cases, as heretofore noted, it was quoted along with the other provisions of the Section, but that was all. If, as contended by appellees, Section 1, Article X, of the Constitution, has been construed, and the provisions thereof that “all property, both real and personal, shall be taxed in proportion to its value”, and “no one species of property from which a tax may be collected shall be taxed higher than any other species of equal value” have been determined to have no meaning beyond the “equal and uniform” provision of that Section, no case is cited, and we find none in which that construction is found. If this Court had undertaken to construe this Section, it would have found authority in other jurisdictions wherein identical or similar constitutional provisions were considered.
The pertinent provisions of Section 28, Article II, of the Constitution of Tennessee, 1870, were construed in Taylor v. Louisville & N. Ry. Co.,
The Supreme Court of Arkansas, in White River Lumber Company v. State,
In Greene v. Louisville & Interurban R. Co., (Ky.),
In the Texas case of Porter v. Langley,
Section 1 of Article IX of the Constitution of Illinois provided that the legislative body of that state should provide revenue “by levying a tax, by valuation, so that every person and corporation shall pay tax in proportion to the value of his, her or its property * * *.” In First National Bank of Urbana v. Holmes,
In Cummings v. Merchants National Bank, (Ohio),
Although there may be found decisions from other jurisdictions contrary to the cases last cited in which the Constitutions contained no “no one species” provisions, we are cited no case in briefs of counsel, nor have we found any, permitting such discriminatory assessment of property for ad valorem tax purposes as is shown by this record under a constitutional provision which contained a “no one species” clause.
If this Court had at any time undertaken to construe the provisions of Section 1, Article X, of our Constitution, and read out of it the “no one species” and “in proportion to value” provisions, such a construction would certainly have led to a consideration of its origin in the Constitutional Convention of 1861-1863, in which it was adopted, and the legislative debate which led to the adoption of the resolution providing for the submission to the voters of this State the Amendment to Section 1, Article X, which was adopted in 1932, and, as heretofore stated, is often referred to as the Tax Limitation Amendment. Fortunately, the debates and proceedings of the First Constitutional Convention of this State were reported, preserved and have been printed at the direction of this Court in three volumes, containing more than twenty-five hundred pages of written material. It should be observed that insofar as the pertinent provisions of that Section are concerned, they remain as they were when adopted by that Convention, and approved by the voters of this State prior to June 20, 1863. There follows some quotations from the debate of the delegates to the Convention prior to its adoption. In commenting upon Section 1, in general, and the “no one species” provision in particular, the following delegates made the following observations: J. W. Paxton was the Chairman of the Committee on Taxation and Finance, and, in submitting the Section on taxation, including what became Section 1, Article X, said:
“* * * It is of this, sir, that the people of West Virginia have ever complained; and whilst the ordinance of secession may have been the occasion of this new State movement on the part of our people, I apprehend there can be little doubt in the mind of any one that the fundamental cause for this division and desire for a new state may be found in the injustice and oppression which our people have suffered from unequal taxation, from oppressive taxation and unequal representation.
“It appears to me, sir, in framing a new constitution now for the people of West Virginia we should be particularly careful to guard against the liability in future of the perpetration of any such injustice on any portion of our own people.”
Delegate Van Winkle: “* * * Now, sir, in reference to the taxation clause, here comes the rule; it is defining the principle and giving the legislature and all other persons to understand precisely what is meant here, and there can be no escape from it. The language of the whole section is concise, and it appears to me there is no unnecessary repetition. Some that may not be very palateable, but nevertheless necessary. It says in so many words, that no one species of property from which a tax may be collected shall be taxed less than any other species of equal value. I trust the Convention will retain this clause precisely as itstands. * * *. I think this is the turning point, the test question of all this matter, and it is now on this question proposed for this Convention to decide whether they do want taxes that are really alike or leave the whole matter at sea again and be treated as we have been under the present Constitution, by which an unjust proportion of taxes, as everybody knows, has been paid by this western section of the commonwealth— taxed, sir, to pay for slaves that are hung; taxed to pay rewards for runaway slaves; and then the slaves themselves not taxed in proportion to their value. * * *
“* * * I cannot imagine that any other system can be called ‘equal and uniform’, and the Convention may depend that it is not a question of language here — not because these words may be simply superflous — that they want them stricken out. It is because they want to get rid of the principle. And if it is a mere question of words, then I beg the Convention to let the words stand, and we shall know precisely what this section means. There can be no mistake about it if these words- are left in.” (Italics .supplied.)
-Delegate Lamb: “* * * The words here are so clear, so precise- that there is no misunderstanding the meaning,-and a common man as well as a lawyer can say exactly what is their effect. * *
Delegate Dille: “* * * Then the second sentence goes a. little further, and I think it is proper, especially as we have so long contended for that principle — not contended for it in one view of it but in every view — and that more clearly expresses our sentiments. Having for the first time in the history of our portion of the state had an opportunity to do so, we clearly fix upon the legislature a prohibition that they shall not in the exercise of any discretion or any power that they may conceive that they may possess, upon any species of property, in any way, violate this fundamental principal. It seems to me we ought to have that provision, and we ought to so impress, it, not only upon our people but upon our legislature that they may not under any circumstances, in reference to any species of property, violate that fundamental principle; * * *.
“Hence, I am in favor of the section as it stands; and I think it is really a provision that we ought to have and that we ought to abide by in detail for fear that the legislature might at some future period in its history feel disposed to violate in reference to some species of property this grand' and fundamental principle that taxation shall be uniform throughout the entire State on every kind of property according to its value.” (Italics supplied.)
Chairman Paxton: “* * * In regard to this second clause, ‘no one species of property from which a tax may be collected shall be taxed higher’ than another, I can assure gentlemen that so far as I am concerned and the committee is concerned, there is no cat in the meal bag about it. It was simply intended to make just that much more specific, as I think it is, the first declaration that all property shall be taxed alike according to value. There cannot possibly be any misapprehension about that, it is so plain. ❖ * ❖
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“A single remark I forgot is simply this; that this section does not in any manner restrict the legislature in the imposition of taxes on privileges or anything else that is not property. The legislature is at perfect liberty to tax in any manner, shape or form, or by any name it pleases, what they please, provided they do it in conformity to this principle; to which I think no exception can be taken.” (Italics supplied.)
Delegate Sinsel: “* * * In the second place, I understand all property shall be taxed in proportion to its value. That is, if one horse is worth $5, tax it on $5, and if another is worth $125, tax it on $125. And so on with every other species of property. Well, the mode of ascertaining the valuation, as I understand the section, the legislature is to prescribe — how it shall be done and who shall do it and so on. Well, now sir, in the first part of the second sentence, ‘no one species of property from which a tax may be collected shall be taxed higher than any other species of property of equal value.’ I presume this clause never would have entered into this Constitution had it not been that there is a clause in the present Constitution of Virginia which was in direct opposition to this principle; and I suppose the committee wished to remove all doubt from the mind of the most common reader that their property should be taxed in proportion to its value, no matter whether it was a horse, cow, sheep, hog, slave or whatever it might be. * * *” (Italics supplied.)
Delegate Van Winkle: “* * * If you want to make a constitution that is to confer the benefits we hope to derive from it, then make it equal in its privileges and purview and don’t give to one what you deny to another; don’t impose a burden on one that you don’t impose on another in proportion. That is the only fair and just rule; and if there is any cat in the meal, I should like to know where it lies. The cat must be in trying to make one pay more than his fair proportion if it lies anywhere.”
Delegate Brown of Kanawha County, soon to become a Judge of this Court, offered an Amendment as a substitute for Section 1, which, if adopted, would have read:
“ Taxation shall be equal and uniform throughout the State on all property both real and personal according to its value; but property used for educational, literary, scientific, religious and charitable purposes may by law be exempted from taxation.”
Delegate Brown’s Amendment was defeated by vote of thirty to seventeen. It is interesting and enlightening to compare Delegate Brown’s Amendment to the pertinent provisions of the Constitution of Virginia of 1851, which was in effect in that state, and in what is now the State of West Virginia, until after the beginning of the War Between The States. Section 22, Article IV, of the Virginia Constitution provided that: “Taxation shall be equal and uniform throughout the commonwealth, and all property other than slaves shall be taxed in proportion to its value, which shall be ascertained in such manner as may be prescribed by law.” Section 23, Article IV, provided: “Every slave who has attained the age of twelve years shall be assessed with a tax equal to and not exceeding that assessed on land of the value of three hundred dollars. Slaves under that age shall not be subject to taxation; and other taxable property may be exempted from taxation by the vote of a majority of the whole number of members elected to each house of the general assembly.”
If this Court had found ambiguity in Section 1, Article X, and undertaken to construe its language, as is contended by appellees that it has done, surely there would have been some reference to the Journal of the House of Delegates, West Virginia Legislature, Extraordinary Session, 1932, in which is recorded the action of that body that led to the amendment of Section 1, Article X, the Tax Limitation Amendment. By House Joint Resolution Number 3, there would have been submitted to the voters of this State an Amendment to that Section, in the following language: “The power of taxation shall never be surrendered, suspended or contracted away. Taxation shall be just and equitable. The Legislature shall have authority to classify property for taxation, but the rate
Before evaluating the decisions of this Court that have heretofore been discussed, in the light of the principle of stare decisis, attention should be called to the decision of this Court in Chesapeake & Ohio R. Co. v. Miller,
In view of the questions raised in In Re: Hancock County Federal Savings and Loan Association, supra, and Bankers Pocahontas Coal Company v. County Court, supra, as to the correctness of the holding in the West Penn Power Company case, because of the decision of the Supreme Court of the United States in Nashville, C. & St. L. Ry. v. Browning, et al.,
The complaint of the taxpayer in the West Penn Power Company case was that it had been discriminated against individually, in that its real property had been assessed for taxation purposes at one hundred per cent of its value, whereas other owners of such property in Brooke County had been assessed at only eighty per cent of the value of such property, and the Assessor
In 17 M. J., Stare Decisis, Pages 185 to 197, the applicable West Virginia and Virginia cases are collected and commented upon. Reference is made to all of the cases there cited, but specific attention will be directed to only a few. The rule of stare decisis does not apply where the former decisions have misunderstood or misapplied the law or are contrary to reason. Simpkins v. White,
It is the judgment of this Court that the final judgment of the Circuit Court of Kanawha County must be reversed for the reason that it imposes a discriminate burden of taxation upon the taxpayer that is forbidden by Section 1, Article X, of the Constitution of this State. This Court does not have the authority to fix the assessment of its property so that it may be relieved of that discrimination, but such is by statute invested in the trial court and the case will be remanded for that purpose. The provisions of Section 1, Article X, of the Constitution, are clear and unambiguous. Particularly is that true as to the provisions relating to the taxing of property, real and personal, which are pertinent to the issue before this Court in this case. In plain, simple language it provides that all property not exempt from taxation “shall be taxed in proportion to its value. No one species of property from which a tax may be collected shall be taxed higher than any other species of property of equal value.” The word “species” is defined in Webster’s New International Dictionary as: “A sight, outward appearance, shape, form, a particular sort, kind, or quality, * * *.” The word “class” is there defined as: “A group of persons, things, qualities, or activities, having common characteristics or attributes; a set; a kind, description, species, or variety.” Section 1 is composed of simple words that were in general usage a hundred years ago as well as the present time. Their meaning was the same as it is now. If it should be determined that the provisions of this Section of the Constitution were ambiguous, or that its language was unclear, and resort should be had to the rules of construction or interpretation, this Court would be compelled to reach the same conclusion as to its meaning. The constitutional and legislative history of the Section, the decisions of courts of other jurisdictions construing identical or similar constitutional provisions and the language used in this Section would inevitably demand the same determination. Judge Johnson construed the Section ably in 1882 in Chesapeake & Ohio R. Co. v. Miller, supra, as heretofore observed.
The only ambiguity that attaches to this Section arises from certain former decisions of this Court. All have been heretofore discussed and the opinion in each has been quoted herein to an extent that is not usually desirable. Clearly what was said in some of those cases that is in conflict with the decision of this Court in the instant case is pure obiter dictum. In others, if what was said that is inconsistent with what is here held may be recognized as rising to the dignity of becoming the law of the cases, the decisions were predicated upon dicta in former decisions and it was accepted as controlling without question. But whether decision or dicta, this Court is impelled to strike down whatever is contained in those former decisions of this Court that is in conflict with the decision in this case. Therefore, the following cases are disapproved insofar as, and only insofar as, they are in conflict with the decision of this Court in the instant case: Charleston & S. Bridge Co. v. Kanawha County Court,
In four of these cases either the principal or the sole issue before the Court was the validity of an Act of the Legislature directing the manner in which the value of a certain type or species of property should be ascertained for the laying of an ad valorem tax against it. These Acts were passed pursuant to the provision in Section 1, Article X, that property “shall be taxed in proportion to its value to be ascertained as directed by law.” The action of the Court in finding the Act valid in each of those cases is approved. In two other cases, the trial court was affirmed in its decision that the taxpayer had failed to prove that his property had been assessed disproportionately to other property. Those decisions are likewise approved. The other case related to the construction and validity of the state income tax law then in effect, and did not involve the “property” provisions of Section 1, Article X, of the Constitution. It too is approved. We cannot accept the view that any of those cases would have been decided contrary to the principles herein enunciated if the evidence of discrimination between species of property had been as clear as it is in this case, and the taxpayer had relied solely upon the “property” provisions of Section Í, Article X, thus presenting to the Court the precise question that has been passed upon in this case. Our respect for the judgment and perspective of the Judges who participated in those decisions, and particularly of the Judges who wrote the opinions, is such that we must reject any suggestion to the contrary.
The XIV Amendement to the Constitution of the United States was adopted in 1868, five years after Section 1, Article X, of our Constitution. At that time many State Constitutions contained “equal and uniform” provisions relating to taxation. Several, including ours, contained more specific and restrictive provisions relating to the taxing of “property”. In construing the “due process” and “equal protection of the laws” provisions of the XIV Amendment, the Supreme Court has consistently held that a taxpayer has no valid complaint of discriminate property taxation under state law so long as he is treated as all others in his “class”. It is only when the taxpayer is discriminated against within his own class that he may successfully invoke the protection of the XIV Amendment. The Supreme Court adopted the phrase “equal and uniform” to describe this conception of equality of taxation. The taxpayer in this case, for example, could expect no relief under the XIV Amendment in this Court, or in the Supreme Court of the United States. It and all others in its “class” are taxed alike, ;i.e., upon an assessment of their property at one hundred per cent of its actual value. In reference to taxation generally, Section 1, Article X, of the Constitution of this State, guarantees at least that much protection to the taxpayer. It provides that “taxation shall be equal and uniform.” However, with regard to “all property, both real and personal”, our Constitution gets more specific and restrictive. It provides that “all property” except that specifically exempted “shall be taxed in proportion to its value.” Furthermore, so that there shall be no misunderstanding about it, there is the further provision that: “No one species of property from which a tax may be collected shall be taxed higher than any other species of property of equal value.” The only limitation which this Section places upon the Legislature in imposing any kind of taxes except property taxes is that such taxation shall be “equal and uniform.” Thus, as to license taxes and taxes on privileges, franchises, incomes, et cetera, there may be, and is, classification and graduation of such
Four elements are necessary to the imposition of an ad valorem property tax: (1) A taxpayer; (2) taxable property; (3) an assessment of its value; and (4) a rate on the unit of valuation. In this State, the rate is based on each one hundred dollars of valuation. Under the provisions of Code, 11-8-5, as amended, property is divided into four classes, as heretofore noted, pursuant to the Tax Limitation Amendment of 1932. The constitutional amendment and the statute provide that the rate of taxation upon property of the different classes shall not exceed a designated sum of money upon each one hundred dollars of the assessed value of such property. The property of the appellant falls in Class I where the maximum rate is fifty cents on each hundred dollars of assessed valuation. It has no cause for complaint in that regard for the same rate was imposed upon all property of that class in Kanawha County for the year 1957. What this taxpayer complains of, and the evidence clearly shows that his complaint is valid, is that its property was taxed for that year upon an assessed value equal to the actual value of its property, whereas all other property except money was taxed upon an assessed value less than the actual value of such property. Neither the Tax Limitation Amendment, nor the enabling legislation enacted pursuant to it, purported to “classify” property by “species”. There are several different species of property in Class I, and, of course, many other species of property in the other three classes. The Amendment of 1932 of Section 1, Article X, did not purport to change the Section except to prohibit the taxing of certain designated properties above fixed rates. It did not destroy the guarantee of property taxation proportionate to value, or the “no one species” provision. Nor did it empower'any taxing official or the Legislature to do by indirection what it could not do directly. A horse used wholly for farm purposes and a share of bank stock are both placed in Class I for rate purposes. If the actual value and the assessed value of each is four hundred dollars, no one would seriously contend that the farmer could be required to pay the maximum rate of fifty cents on his horse while the owner of the share of bank stock paid only twenty-five cents on his property. Nor could the same discrimination be practiced upon the farmer by assessing his horse at its actual value of four hundred dollars while the share of stock was assessed at two hundred dollars. But if both the horse and the share of stock were assessed at one-half of their actual value, and the maximum rate of fifty cents a hundred was placed on each, the amount of tax money derived would be exactly the same as if both were assessed at their actual value and a rate of twenty-five cents a hundred was imposed upon both. By following the latter procedure, the taxing authorities would be complying with mandatory constitutional and legislative law if that is of any importance. Whether one taxpayer is taxed twice as much as the other by virtue of the imposition of a rate twice as high as the other, or by an assessment twice as high as the other, it is forbidden by Section 1, Article X, of the Constitution. Furthermore, it is of no materiality whether the different species of property happens to fall in one or the other of the “classes” of Code, 11-8-5, as amended. If a taxing official, even without legislative sanction, can now tax the owner of one species of property twice as high as the owner of another species of property of equal valu'e by fixing the assessed value
This Court does not have the power to amend, alter, or repeal any provision of the Constitution of this State. That is a prerogative that the people have reserved unto themselves alone. It is within our power though, and our paramount duty, to prevent others from amending or repealing any part of the organic law of this State except in the manner provided in the document itself. It may be the will of the people of this State, after ninety-six years, that the pertinent provisions of Section 1, Article X, should be changed or removed therefrom altogether. If so, the time is opportune. There was recently created, and is now functioning, a Commission on Constitutional Revision whose purpose is possible revision of the Constitution of 1872, and the subsequent Amendments thereto. It may be that Mr. Justice Frankfurter was expressing the sentiment of a majority of the people of this State in Nashville, C. & St. L. Ry. v. Browning, et al., supra, when he said: “This Court has previously had occasion to advert to the narrow and sometimes cramping provision of these state uniformity clauses, and has left no doubt that their inflexible restrictions upon the taxing powers of the state were not to be insinuated into that meritorious conception of equality which alone the Equal Protection Clause was designed to assure.” Maybe so. Maybe not. The people of Virginia had some bitter experiences prior to the Revolutionary War with what King George III considered a “meritorious conception” of taxation. They found this system unpalatable in that it cast an unequal burden upon those least <abld to bear it. “Taxation without representation” was a principal cause of the King losing a very valuable part of his kingdom. The State of Virginia at first abhorred, later endured, and finally embraced this principle. It seems that while the political power and most of the taxable property was concentrated in the eastern part of the state, it was the consensus of the inhabitants of the western counties that the tax gatherers were consecrated public officials only when performing their duties beyond the foothills. So it came to pass that in 1863 she lost her western counties, and one of the primary causes was the flexibility of the “equal and uniform” provision of the Constitution of that state. Under it, the wealthy property owners of the eastern part of the state did not pay taxes upon their property “in proportion to its value.” The burden of ad valorem property taxation fell heaviest upon the small property owners, the farmers, the merchants and the householders of the western part of the state. The people of the new State of West Virginia, who had been very unhappy indeed with the “meritorious conception of equality” of the Virginia Constitution, demanded and got into their new Constitution some “narrow and sometimes cramping” provisions relating to property taxation, and to this day they have never been removed or changed. If the people of this State demand for themselves a little more “due process” and “equal protection of the laws”, in regard to property taxation than is provided by the Constitution
We are not influenced by the testimony of the Assessor, to the effect that, according to the Tax Commissioner’s appraisal, isolated parcels of real property in Kanawha County may vary in assessment, as related to actual value, from nine per cent to one hundred thirty per cent. In a county of this size, or in any county, perfection is not expected of an assessor, or a county court, in performing his or its duties. We approve the views expressed by this Court in Bankers Pocahontas Coal Co., et al. v. County Court, supra, in quoting from City of Roanoke v. Gibson, (Va.),
In accordance with the foregoing, the judgment of the Circuit Court of Kanawha County is reversed and this case is remanded to that court for further proceedings, not inconsistent with the principles herein enunciated.
Reversed and remanded with directions.
Dissenting Opinion
dissenting:
Believing as I do that the decision of this Court reversing the judgment of the circuit court in this case is not supported by the evidence, is contrary to its prior decisions, is logically inconsistent and is legally unsound, I respectfully but emphatically express my dissent.
The evidence shows beyond question that there is no general assessment of property in Kanawha County for 1957 at forty per cent of its true and actual value. On the contrary it clearly appears from the undisputed evidence that the assessor is merely engaged in an effort to assess some properties at that percentage of their value in order to comply with the requirements of Chapter 1, Acts of the Legislature, First Extraordinary Session, 1955, to obtain state aid for schools, and that various types of property are assessed at widely different percentages of their true and actual value. For instance bank stock is uniformly assessed at one hundred per cent of its value; cash on hand and money in bank are assessed at the same percentage of their value; accounts receivable and notes receivable at sixty per cent of their value; inventories at fifty per cent of their value; and machinery and equipment at twenty per cent of their original cost. The assessment of real estate is not uniform or general and ranges from nine per cent to one hundred and thirty per cent of its true and actual value. That the evidence utterly fails to establish any general or systematic assessment of forty per cent of the true and actual value of property in Kanawha County for the year 1957 is conclusively shown by the uncontroverted testimony of John M. Slack, then the Assessor of Kanawha County, upon which the plaintiff, The Kanawha Valley Bank, bases its claim to a reduction of the value of its stock to forty per cent of its true and actual value on the ground
Called as a witness by the plaintiff the assessor was asked these questions and gave these answers: “Q. Having arrived at a value by the book value method, what percentage of that true and actual value have you assessed the stock ? A. One hundred per cent. Q. What percentage of true and actual value have you assessed other property in Kanawha County for the year 1957? A. We have made an attempt to assess it at 40 per cent, according to Senate Bill 3. Q. Have you made any effort to assess other property in Kanawha County at 100 per cent of its true and actual value? A. None other than Class I property, and that, of course, we inherited from procedure carried on in the past. Now I might say, if I may, that in my conversation with Mr. Brown on July 22 he stated that he was using book value throughout the entire State, with the exception, I think, of a bank in Logan County, and that he had not looked upon the factors such as we considered last year as being proper. Then of course, insofar as I know the other banks within our area, the capital stock is valued and assessed at book value, which is 100 per cent. * * *. Under the requirements of Senate Bill 3, actually I am no longer an Assessor if I expect to obtain State aid for schools. I have to follow the mandates and the findings of the evaluation arrived at by the office of the State Tax Commissioner. * * *. Cash on hand and money in the bank at 100 per cent, accounts receivable at 60 per cent, notes receivable at about 60 per cent, and the way you determine that is how they are supported, by deed of trust, security and so forth.” Question by a County Commissioner: “Mr. Slack, are all banks in Kanawha County assessed according to this same rule you are using on The Kanawha Valley Bank? A. On book value? Q. Yes. A. So far as I know they are. I have Mr. Gaten’s word that they have been. I have not looked at it myself personally but he advises me they are assessed at book value. Q. Do you know what percentage of true and actual value livestock is assessed at? A. Frankly, I don’t. Q. Is it very low? A. It is very low. Q. Then as I understand, you have used less than 100 per cent of true and actual value in other classes of property. A. Yes, in the case of inventories we assess inventories at 50 per cent. We assess machinery and equipment at 20 per cent of the original cost. We find that by using this method we come up with nearer the same figure that the Tax Commissioner uses in arriving at his values for State aid purposes. Q. And real estate, what percentage of the true and actual value? A. Of course, we have a gross inequality there, according to the State Tax Commissioner our real estate runs from something like 9 to 130 per cent. As far as I know we are placing all real estate on the books at not less than 40 per cent of the Tax Commissioner’s appraisal, in order to qualify for State aid. Q. Would you consider that not less than 40 per cent of true and actual value? A. No. it is 40 per cent of the State Tax Commissioner’s appraisal, and he is basing his appraisal upon 1950 costs, which he states is about 25 per cent less than costs would be on today’s market. Q. Do you consider that you are assessing real estate on the average in Kanawha
On cross-examination the assessor was asked these questions, among others, and gave these answers: “Q. You have also been advised by the Tax Commissioner that a spot check was simply their method of obtaining information, and that you were not completely bound by it in your assessment? A. Not bound by it except in my percentage for State aid purposes. * * *. Q. Yes, but their spot checks and the figures they give you with reference to particular pieces of property is simply their opinion, based on information they had of the value from sources which we don’t know, but which you are not completely bound by as to your assessment for tax purposes. Isn’t that right? A. I am only bound in order to qualify for State aid. * * (Emphasis supplied).
From the foregoing uncontroverted evidence it is obvious that there was no systematic or general assessment of property in Kanawha County in 1957 at forty per cent of its true and actual value but, on the contrary, the real estate assessments varied from “9 to 130 per cent” of such value; that the assessment of real estate “at not less than 40 per cent of the Tax Commissioner’s appraisal” shows that such assessment at least in some instances was more, without indicating how much more in any specific case, than forty per cent of its true and actual value; that bank stock was uniformly assessed at one hundred per cent of its value; and that numerous other classes of property were assessed at different percentages of their value. Under the evidence there has been no discrimination against the plaintiff in favor of other holders of bank stock, all having been assesed at one hundred per cent of its value, and there is no justification for reducing the stock of the plaintiff from one hundred per cent of its value to a nonexistent general or systematic valuation of forty per cent. In the absence of any showing of a general or systematic assessment of property at forty per cent of its true and actual value, which the plaintiff was required but has failed to establish, there has been no prejudicial or unlawful discrimination against the plaintiff to the extent of the difference between one hundred per cent and forty per cent of the true and actual value of its stock.
Inasmuch as all bank stock is assessed at one hundred per cent of its true and actual value and as its assessment at that percentage of its value is not discriminatory but equal and uniform among the members of that class of property owners, this Court should have adhered to and followed its former decisions and held valid the assessment as fixed by the circuit court on the basis of one hundred per cent of the true and actual value of the stock of $6,000,000.00.
In invalidating the assessment of the stock of the plaintiff for failure to conform to an imaginary standard of valuation of property at forty per cent of its value, this Court ignored and, I think erroneously, refused to follow its prior decisions which recognize the validity of assessments which are equal and uniform within the same type or class of property even though other and different types or classes of property are not taxed at the same valuation provided taxation within the particular class is equal and uniform. Until the decision in this case this Court, under Article X, Section 1, of the Constitution of this State, has upheld the validity of taxation of property in a particular class which is equal and uniform within that class and has consistently held that a tax upon all business of the same class which is uniform as to that class is not unconstitutional.
In Charleston and Southside Bridge Company v. Kanawha County Court,
In Christopher v. James,
In the case of In Re: Tax Assessments Against Hancock County Federal Savings and Loan Association,
In the case of In Re: Tax Assessments Against Charleston Federal Savings and Loan Association, 126 W. Va. 506,
Concerning the question of discrimination this Court said: “On the record before us,
With respect to Article X, Section 1, of the Constitution, the opinion contains these statements: “Recent radical changes in our tax system, brought about by the adoption of the tax limitation amendment, Section 1 of Article X of our Constitution, where property is classified, gives rise to the suggestion that once property has been classified, there can be no further distinction as to property within a given classification. Whether there can be such distinction is perhaps dependent on the character of the property involved. Each of the four classifications of property for tax purposes includes property of different types, for the ascertainment of the value of which different methods are employed. In the very nature of things this must be true. The Constitution plainly says that the value of all property for tax purposes shall be ascertained ‘as directed by law’. Who gives the direction? Obviously, the sole law-making authority, the legislature. In respect to building and loan and federal savings and loan associations, as well as other types of property, the legislature has given specific direction, and as to other types of property the directions are more general. We do not doubt the inherent and constitutional power of the legislature to give these directions, so long as they are designed to provide a method in keeping with the aim to tax property equally and uniformly, as required by our Constitution. So far as concerns our State Constitution, we think the question is set at rest by the decision of this Court in Charleston & Southside Bridge Co. v. Kanawha County Court, supra. That case was decided in 1896, when there was no classification of property for tax purposes, and uniform tax rates, in each •taxing district, applied to all property. However, Section 1 of Article X of the Constitution, as it then was, contained the same provisions with respect to equality and uniformity as those contained in the present Constitution. In that case the plaintiff was the owner of a toll bridge and the legislature had provided a particular method for the assessment of toll bridges and ferries.” After quoting points 2, 3 and 4 of the syllabus in the Bridge Company case, the opinion continues: “We know of no subsequent case which in any way departs from that decision. It was cited with approval in Christopher v. James, supra. The later classification of property does not, in our opinion, call for any departure from the principles therein pronounced. We think they are applicable to our present tax system.” (Emphasis supplied).
In In Re: Tax Assessments Against The National Bank of West Virginia at Wheeling and The Morris Plan Savings and Loan Company,
“Moreover, the uniformity required relates to property of a particular class. It is not required that property, businesses or income of different classes be taxed equally and uniformly. Bankers Pocahontas Coal Co. v. County Court,
In the recent case of In Re: Tax Assessments Against The Southern Land Company, decided in 1957,
“Subject to the limitations governing the jurisdiction of this Court, the question before us is raised by Article X, Section 1, of the West Virginia Constitution, which reads: ‘Subject to the exceptions in this section contained, taxation shall be equal and uniform throughout the State, and all property, both real and personal, shall be taxed in proportion to its value to be ascertained as directed by law. No one species of property from which a tax may be collected shall be taxed higher than any other species of property of equal value * * V This requirement of equality and uniformity of taxation, as set forth in Article X, Section 1 of the West Virginia Constitution, means that as to all classes of 'property, business or incomes there shall be uniformity of taxation. West Penn Power Co. v. Board of Review and Equalization of Brooke County,112 W. Va. 442 ,164 S. E. 862 ; Christopher v. James,122 W. Va. 665 ,12 S. E. 2d 813 ; Charleston & Southside Bridge Co. v. Kanawha County Court, supra.” (Emphasis supplied).
The foregoing quotation “that as to all classes of property, business or incomes there shall be uniformity of taxation” shows conclusively that this Court, in considering both the “equal and uniform” provision and the “no one species” provision of Article X, Section 1, of the Constitution, which were quoted in the opinion in the Southern Land Company case and also in the opinion in the Hancock County Federal Savings and Loan Association case, recognized the validity, under both provisions, of classifications for the valuation of taxable property of different types or classes provided the valuation within each particular class was equal and uniform. If it did not do so it would not have expressly used the terms “all classes” which necessarily imply the existence of more than a single class or species of property the valuation of all of which must be the same to be equal and uniform. The application now made by the majority in the instant case of the “no one species” clause necessarily abolishes “all classes” of property and permits only the existence of one universal all inclusive single class of property within
Inasmuch as this Court in its decisions in the foregoing series of cited cases was required to consider the meaning- and effect of the “no one species” provision of Article X, Section 1, of the Constitution, and quoted that provision in its opinion in two of those cases, that question in the instant case was manifestly not one of first impression in this State even though the majority considered it to be a question of that nature.
The provisions that “taxation shall be equal and uniform throughout the State, and all property, both real and personal, shall be taxed in proportion to its value to be ascertained as directed by law” and that “No one species of property from which a tax may be collected shall be taxed higher than any other species of property of equal value,” have been a part of the Constitution since the formation of this State and each appeared, in the identical language just quoted, in Article VIII, Section 1, of the Constitution of 1863, and in Article X, Section 1, of the present Constitution adopted in 1872, and the same language remains in the same Article and Section notwithstanding the amendment to that Article and Section in November 1932 which authorized the division of all taxable property into four classes for the establishment of rates of taxation and imposed a limitation on the rate or amount of the tax which may be levied upon each class of property. The absence of any discussion of the provision that “No one species of property from which a tax may be collected shall be taxed higher than any other species of property of equal
It is pertinent to make particular mention of the seven prior decisions of this Court which the majority in the case at bar was required to disapprove in order to reach the conclusion that the assessment of the stock of the plaintiff at one hundred per cent of its true and actual value was violative of the “no one species”'clause of the Constitution. In the first of these cases, Charleston and Southside Bridge Company v. Kanawha County Court,
The history of the incorporation in the Constitution of 1863 of the “no one species” provision and the reason for its adoption militate against and do not support the conclusion reached by the majority in this case. Prior to and at the time of the formation of this State the Constitution of Virginia of 1851, in Article IV, Sections 22 and 23, contained these provisions: “Taxation shall be equal and uniform throughout the commonwealth, and all property other than slaves shall be taxed in proportion to its value, which shall be ascertained in such manner as may be prescribed by law.” And “Every slave who has attained the age of twelve years shall be assessed with a tax equal to and not exceeding that assessed on land of the value of three hundred dollars. Slaves under that age shall not be subject to taxation; and other taxable property may be exempted from taxation by the vote of a majority of the whole number of members elected to each house of the general assembly.” This constitutional limitation on the valuation of slaves and the provision for exemption from taxation of other taxable property by the vote of a majority of the whole number of members elected to each house of the general assembly and the inadequate and unequal representation in each house of the inhabitants of the western counties of Virginia which subjected them to the policies supported by the eastern counties caused violent and bitter dissatisfaction to the people of the western counties where there were fewer slaves than in the eastern counties and required them to pay higher taxes upon other types of personal
If the “no one species” clause is now to be used to reduce the valuation of all property to the level recognized by “a systematic plan” to assess property at a specified percentage of its true and actual value to the exclusion of different valuations of different classes of property which are equal and uniform within each class, which, as I understand the majority decision, is the result which it requires, the value of the stock of the plaintiff should be reduced, not to forty per cent of its true and actual value, but instead to twenty per cent of its true and actual value to conform to the “systematic plan” followed by the assessor of Kanawha County who has actually assessed machinery and equipment at a valuation based upon twenty per cent of their original cost. And this principle must necessarily apply under the “equal and uniform” clause to the valuation of property in every county of this State.
In my opinion the present decision will inevitably result in confusion and uncertainty in the valuation of the property of utilities which own property and operate in more than one county in this State. If a public service corporation operates in Kanawha County and in several other counties in this State the valuation of its property in that county must be reduced to conform to the “systematic plan” to assess property at forty per cent of its true and actual value or it will be subjected to an unconstitutional discrimination if its property is assessed above that percentage of its true and actual value. If its property in some other county where “a systematic plan” to assess property at sixty per cent of its true and actual value exists its property must be assessed at that percentage and it will be subjected to an unconstitutional discrimination in that county if it is assessed at any greater percentage of its true and actual value. But if its property in Kanawha County is and must be asessed at forty per cent of its true and actual value and its property in another county to conform to the “systematic plan” is and must
As heretofore pointed out, the present decision, instead of harmonizing the “equal and uniform” provision and the “no one species” provision in Article X, Section 1, of the Constitution, has rendered them apparently repugnant to each other and created an apparent irreconcilable conflict between them. In accomplishing that unnecessary and unfortunate result, the majority has disregarded an elementary canon of constitutional construction which requires that if there is an apparent repugnancy between different constitutional provisions it is the duty of the court to harmonize them if possible. In 11 Am. Jur., Constitutional Law, Section 53, the text contains these statements: “In construing a constitutional provision, it is the duty of the court to have recourse to the whole instrument, if necessary, to ascertain the true intent and meaning of any particular provision, and if there is an apparent repugnancy between different provisions, the court should harmonize them if possible. The rules of construction of constitutional law require that two sections be so construed, if possible, as not to create a repugnancy, but that both be allowed to stand, and that effect be given to each.” In 16 C.J.S., Constitutional Law, Section 23, the rule is discussed in these terms: “In ascertaining both the intent and general purpose, as well as the meaning, of a constitution or a part thereof, it should be construed as a whole. As far as possible, each provision should be construed so as to harmonize with all the others, with a view to giving effect to each and every provision in so far as it shall be consistent with a construction of the instrument as a whole.” In State v. Harden,
It should be emphasized that, until the present decision, the prior decisions of this Court have consistently been considered binding authority to be followed and adhered to unless such prior decisions are found to be plainly erroneous or utterly unsound. By expressly disapproving the seven prior decisions of this Court cited and referred to earlier in this dissenting opinion, the majority has departed from that salutary and well established principle. Instead of adopting the reasons set forth and the conclusions reached by this Court in those decisions, the majority seeks to sustain its present decision by citing and relying upon numerous decisions by courts in other jurisdictions
In my judgment, the present decision requiring all types of property, regardless of the natural diversities between them, to be placed in a single, universal and all inclusive class and to be given the same percentage of value for the assessment of ad valorem taxes, accomplishes the amazing and heretofore unheard of result of completely and permanently abolishing any classification of the different kinds of property into separate and distinct categories for the purpose of assessing ad valorem taxes against inherently different types of property in this State; and this result is accomplished by a bare majority consisting of three judges of this Court in the face of a heretofore unbroken line of well considered cases in which this Court reached an opposite and entirely different conclusion. Under the present decision, money, bills and notes, evidence of indebtedness, oil wells, railroad systems and equipment, shares of stock, livestock, farm machinery, merchandise, coal mines, household furniture, jewelry, automobiles, steamboats, racehorses, real estate of all kinds, and even poodle dog pets must be given the same percentage of value and can not be placed in separate or distinct classes, despite the natural differences between them, or valued equally and uniformly within the class in which some or any of the foregoing items may directly and properly belong for the assessment of the ad valorem taxes to which they are subject under the law of this State. I do not and can not subscribe to any such previously unheard of, chaotic and utterly impractical innovation in the system of taxation in this State.
As previously indicated the present decision is logically inconsistent and legally unsound. The assessed valuations in the cases of Charleston and Southside Bridge Company v. Kanawha County Court,
For the reasons stated and under the authorities cited and quoted from in this dissent I would adhere to the former decisions of this Court and affirm the action of the circuit court in assessing the stock of the plaintiff at one hundred per cent of its true and actual value of $6,000,000.00.
I am authorized to state that Judge BERRY concurs in the views expressed in this dissenting opinion.