Re: The Assessment of Shares of Stock of the Kanawna Valley Bank

Re: The Assessment of Shares Stock Valley Bank The Kanawna (No. 10952) January April Decided Submitted 1959. 1959. dissenting. Raymond, Judges, Berry, Brown, Kelly, O’Farrell, Jackson, & James K. Holt Holt, plaintiff Homer A. in error. for Henry Jr., Barron, General, Bias, Attorney C.

W. W. General, Dawson, de- Boone Attorney D. Assistant in error. fendant Stump, Jr., amicus Morrison, and John

John C. S. Virginia Ass’n. on behalf of Bankers curiae West Judge: Browning, judgment statutory appeal a a from

This is provisions County under Court of Kanawha Circuit taxpayer, Ka- amended, Code, 11-3-25, as the trial Valley Bank, corporation, a nawha tax- value of the the true and actual court found capital was payer’s stock fifteen thousand shares amount $6,000,000.00, at such shares and assessed levying thereon. purpose an valorem tax for the ad Court, 17, 1958, decision On in a four to one June judgment County Circuit Court of Kanawha was reversed On and case remanded to that court. December, 1958, upon petition the 15th of of counsel taxing government rehearing affected, for the units of a granted, Judges being was two of the of this Court noted voting rehearing. as to refuse the The case was re- briefed, reargued again submitted for on decision Although January 21, proceeding such 1959. on designated side, by statute, “appeal”, the law it is an parties appellant will as sometimes referred to appellees. County The Assessor of Kanawha fixed had $7,700,000.00. Upon the assessed value of these shares application County an for relief to Court Kanawha County provisions Code, 11-3-24, under the amended, as sitting Court, acting board of equalization review, testimony upon heard the con- taxpayer tention of the assessment ex- cessive, that had been at one and its stock assessed per value, hundred cent of its true and actual whereas County species other of in Kanawha had been percentage assessed at lower of its true and actual sought declaring by but denied the relief order * * respects “that the assessment all is correct *.” court, pursuant authority The trial the to vested in by provisions Code, 11-3-25, amended, by the of as which empowered County it is to review such an order of the judicial capacity, required in a and is also to act capacity make an administrative and such assessment upon the as it believes indicated record made before County Court, reduced the value of the for shares purposes $7,700,000.00 assessment from $6,000,000.00, to percentage but refused to lower the of the true and purposes actual value of the for assessment “at percentage practice a lower in accordance with using percentages assessing the Assessor in such lower property.” other The trial court found that County erroneously both the and the Assessor Court had used the “book value” method alone as the means of ascertaining the true and actual value of stock of taxpayer, procedure which had been followed the As- Tax Com from the State pursuant instructions to sessor Re: Tax missioner, held in In Court had whereas this Against Bank West Vir the National Assessments Savings Wheeling Plan ginia and The Morris At Company, E. 2d Va. 73 S. Loan 137 W. ascertaining the true and actual value

such method standing banking institutions, of stock of shares Code, 11-3-14, alone, contrary provisions of was to the amended, for ad valorem with assessments deals banking institutions, taxing banking national of stock of Although companies. the final associations industrial trial the “State of order court shows West Magis- Virginia, Kanawha, County and Charleston magisterial thereof terial District and districts counsel, concerned, jointly severally, by excepted; ** ruling by which the true and actual value petitioner from of the shares of stock of was reduced $7,700,000.00 $6,000,000.00, appeal perfected no governmental action, these from units such taxpayer complaint appeal makes no its fixing trial action in court’s its shares purpose levying $6,000,- for the a tax thereon at stock court, refusing The trial to fix the value of 000.00. purposes the stock for assessment at less than one hun- value, pursuant dred cent of its true actual taxpayer’s contention that the evidence established arbitrarily had Assessor assessed other purposes in Kanawha taxation percentage less than true and actual value in provisions contravention of Section Article Virginia, cited, authority of the Constitution West as so, for its refusal to do Court. decisions by Thus the sole issue for determination this Court is holding the trial court erred in whether that this tax- payer by having suffered a constitutional discrimination payment property assessed its for the of ad valorem upon per the basis of one taxes hundred cent of true its establishing and actual value. The burden of fact taxpayer, and, unless that discrimination by evidence, taxpayer is shown cannot invoke provisions statutory any en- of the Constitution or actment.

Constitution, pertinent insofar as for consideration question, “Subject exceptions in this reads: contained, section uniform taxation shall' be throughout state, and all both real proportion shall be taxed in value personal, its to be species ascertained as directed No law. higher

from a tax be collected shall be taxed * * property of-equal value; other *.” Code, 11-3-1, amended, provides as that: “All annually day January shall be assessed first * * value; lang- at its true and actual *.” The verbatim uage appeared of this Section first in the Acts of however, language previously similar had used been thereto and the unchanged substance has remained since Chapter Regular Session, Legislature, Acts of the 1863. taxpayer

This complaint can make no of discrimination because of the same County in Kanawha purposes assessed for taxation same manner is assessed. The record is clear that banking the stock institutions in Kanawha and, County, indeed, State, possible in with one ex- ception, is purposes assessed for taxation at one hundred per cent of its true and actual value. Slack, Jr.,

John M. at the time Assessor of Kanawha County, Congressman and now from the Sixth Vir- West ginia Congressional District, hearing be- testified at the County fore the questions Court. He was asked these and made these answers: Q: “Having arrived at value the book method, percentage value what of that true you value

actual have assessed the stock?” A: “One hundred cent.” Q: percentage “What true actual you have assessed other in Kanawha year for the ?”

351 attempt A: “We have to assess made an per cent, according at 3.” 40 Senate Bill Q: you “Have made effort to assess per cent of in Kanawha at 100 - its true and value ?” actual A: “None other than 1 Class that, course, procedure we inherited from car- * * *” past. ried on in the >! * * question in

COMMISSIONER GLENN: “The my mind was clear that Class whether it was per cent.” 1 is all assessed at 100 money in THE hand and WITNESS: “Cash on per at cent, bank at receivable accounts per cent, per notes receivable at about 60 you cent, way and the determine that is how supported, by trust, security they are deed of forth.” so ijt

Q: you percentage of true know what “Do at?” and actual value is assessed livestock “Frankly, A: I don’t.”

Q: very “Is it low?” very

A: “It is low.” Q: understand, you have used less “Then as I per cent of true and actual than 100 propertry?” other classes of in- “Yes, inventories we assess A: in case of machinery per cent. assess

ventories at 50 We original equipment at 20 cent of using method we find that cost. We figure up nearer same with come Tax Commissioner arriving values uses his purposes.” aid for State

Q: estate, percentage of the real what “And value?” and actual true gross inequality course, we have a A: “Of according

there, the State Tax Commissioner something our real estate runs from like 9 to per 130 cent. As far I placing as know we are all real estate on the books at not less than 40 per cent of the Tax appraisal, Commissioner’s qualify in order to for State aid.” Q: you “Would consider that not less than per 40 cent of true and actual value?” “No, per

A: it is 40 cent of the State Tax appraisal, Commissioner’s basing he is his appraisal upon costs, 1950 which he is states per about 25 cent less than costs would be on today’s market.” Q: you you assessing “Do consider that are average real estate on County in Kanawha per at 100 cent of true and actual value ?”

A: “I do not.” Q: percentage “At about what of true and you actual value you would estimate are assess- ing it?” again go A: survey “There we back to the Commissioner, State Tax he claims per it is about 35 appraisal, cent of his which per would be 25 cent less than the value 1957. Senate Bill 3 refers to true and actual However, purposes survey value. for of this Property Tax Commissioner’s De- Evaluation partment using replacement costs less de- preciation, they upon are based re- re- placement costs, according them the placement costs have increased from 1950 to per some 25 cent.” Q: you “Then would that mean that if were assessing you per at 40 cent of the 1950 value that actually assessing would real estate per than 40 cent of the and actual less true today ?” say would, yes.”

A: “I would Chapter Bill 3” to which the witness refers is “Senate Extraordinary Legislature, 1955, First Acts of Ses- eligible provides county sion, for that a cannot year schools its full State aid for for allocation of year valuation non- the assessed 1957 unless for county purposes utility property taxation in such appraised forty per not less than cent of the valuation Commissioner, by the Tax such as determined based true and actual value. testimony beyond

It is clear doubt from this witness’ no in Kanawha purposes year at one assessed for the for taxation except actual value hundred cent of true and November, “money bank”. bank stock and in the people their vote amended of this State exempt X, Constitution, Section to bank deposits from his testi- from taxation. It is also clear subject mony species to every that each and County, with the ad valorem in Kanawha taxes situate noted, exceptions particular, in above and real pur- by preconceived plan for taxation was assessed only poses than true actual value. less its and question whether that remains determination is such for 1, Article a scheme of taxation is in violation of Section Constitution. question say taxing for the units Counsel Court, already by cite several been cases has decided contention, the rule of support and invoke of this prelude of these to a consideration stare decisis. As a cases, them it the first of should be noted that 1896, the Constitution decided until whereas 28, 20, 1863, July operative June on State became on the Constitution of 1868, to the XIV Amendment adopted. an Amendment There was United States was 1872, and pertinent to the of our Constitution Section equal “Taxation shall thereafter read as follows: property, throughout State, and all both and uniform proportion its to personal, be taxed real shall by No one law. as directed be ascertained collected, tax property, from which higher any other be taxed shall educational, lit- value; equal for used but 354

erary, scientific, religions purposes; charitable or all public cemeteries property, may, by law, be ex- empted legislature from power taxation. The shall have tax, equal laws, privileges uniform and persons corporations.” franchises of The word “cem- eteries” and the last sentence were added the Amend- ment, otherwise the provided same as the Constitution of 1863.

Section 1 provides: per- the XIV Amendment “All sons born or States, naturalized in the United and sub- ject jurisdiction thereof, are citizens of United States and they of the State wherein reside. No State any shall make abridge or enforce law which shall privileges or States; immunities of citizens of the United any deprive nor shall any person State life, liberty, process law; without deny due nor person jurisdiction within protection laws.” Bridge & Charleston County S. Co. v. Kanawha

Court, W. Va. 24 S. E. error dismissed U. S. Sup. L. Ed. Ct. decided March 21, 1896, the bridge owners of a County toll in Kanawha petition had filed a praying with the for correction of an bridge erroneous assessment of its year 1893, alleging year bridge that for the 1892 the was assessed at $22,000.00, property and that the same following year in the upon personal was “assessed the county” $50,000.00. books of said at The Court petition, upon dismissed the but the Circuit Court appeal reduced the $25,000.00, assessment to and ordered that placed upon the be the land books since property. was real This Court, Court reversed the Circuit directed placed that the personal be on the property books, “judgment and affirmed the of the Coun- “* * * ty In opinion, Court.” the the Court said: The ascertaining manner bridge of the valuation of a toll plainly prescribed chapter in section 63 of 29 of the Code. thereby required assessor is just to ascertain a esti- value, and, mate of its annual purposes for the of tax- bridge ation, provides value of toll that the said statute value. ferry ten times its annual be taken to be shall this of application correct the assessment This was to bridge fifty yet, tran- dollars, so far as the thousand exceptions show,- script witness offered bill no was and * * bridge; to prove As to the annual of said Code, Chapter 63 of 29 of the the contention that Section the providing for the ascertainment of the value unconstitutional, bridge purposes was for assessment “* * * respect what section the said: is said pro- X, s.l, our Constitution unconstitutional? through- equal and uniform vides that shall be ‘taxation state, personal, all shall out and real and value, as proportion to be ascertained taxed to its .be by law’; following provision that: “No directed [The species be a tax collected from which higher any shall be taxed than other equal omitted, opinion value.”, and continues] legislature ‘The and concludes as follows: this section equal by laws, power tax, uniform shall have to and persons corporations.’ privileges and franchises- of chapter passed pursuance this Section 63 of 29 was object proper provision, having for assessment its privileges, bridges for toll and their franchises annual ascertain to reason directs assessor bridge value, unnecessary itself if the which would be plainly be as estate. This to taxed real directing legislature power how confers ascertained, to such be the value of franchises shall di- ascertain such value in mode legislature surely be in violation rected would prescribed provision, the mode unless constitutional requiring tax- violate the clause the statute should throughout As ation and uniform state. it, we understand this means that same property throughout the state should be assessed at rate, according ascer- same which is bridges required by law; is, tained all of the toll throughout (taking illustration) the state case by mak- assessed, their ascertained must be values ing just each, of of the annual value estimate * * *” multiplying opinion proceeds ten. The then quote of the United to discuss and from a decision Supreme Supreme Court and State a decision of Virginia Appeals that, the effect under the Court of of to United of Constitution of the States and Constitution Virginia, a state law for of State the valuation property thereon, and the assessment of taxes which provides property for the classification of into different classes, translating principle is valid. In into of law Syllabus, Point tax thereof reads: “A class, business the same uniform is as to that business, kind of is not unconstitutional.” But cf. Frank- lin State, Insurance Co. The Va. 349. W. to be question observed that no was raised in this case as any species being other personal, real purposes per assessed for taxation at a different centum of its true reason, per- and actual value. For that tinent of Section that no one species property higher any shall be taxed than other species equal value, quoted was neither Furthermore, nor time, discussed. there at that was not and there now, any prohibition against taxing is not any “business” other than “taxation shall throughout provisions uniform the state.” The purport prohibit Section which being higher from taxed other only property. relate pertinent

The next decision of this Court West Penn Company Power et al. v. Equaliza- Board Review and County, tion Brooke Va.W. 164 S. E. 862. Perhaps pointed it should appellees out that do not rely upon the case, decision of but, this Court in that on contrary, appellant sup- avers the decision ports its Company complained views. Power its was assessed in excess of its true and actual value, that, although its real was assessed at one hundred cent of true and actual real in Brooke was assessed at only eighty per cent of such value. The trial court denied

357 relief, Company the but Power reversed finding, proceeding with the directions remanded Company’s the Power “of real estate assessment per improvements twenty reduced centum” conform with the in that valuation of county levying taxes. relief for the of ad valorem This provisions taxpayer solely accorded the was under United the XIV Amendment to the Constitution of the 1, X, Constitution, was States. Section of our opinion. not mentioned in the The rule laid down City Bridge County, (Neb.) Sioux 260 Co. v. Dakota 979, 441, 340, Sup. 190, U. 67 L. 43 28 A.L.R. S. Ed. Ct. courts, of several are state the decisions opinion, that, taxpayer cited in the taxed at when a his one hundred the true and actual value of cent of upon taxpayers and other taxed a lesser are valuation, remedy taxpayer dis- of the who been has against reduced, was criminated to have valuation his recognized adopted.

Christopher James, Commissioner, Tax 122 Va.W. 665, E. while was S. 2d was decided there taxpayer force in income tax law. The this State an deficiency sought Christopher tax assess- relief from a against laid Tax ment the State Commissioner year taxpayer 1937. on income for account his gross taxpayer taxes deducted income The had from his paid under Se- Federal Government Social curity Act, and to the Bituminous Coal Act Virginia Unemployment In- State of West under held that such surance and Acts. This Court Gross Sales under law then deductions could be made pe- effect, trial dismissed reversed the court and opinion, any state- Near end without tition. based, upon what ment theretofore indicate taxpayer into appears paragraph: “The also draws ‘equal requirement of consideration the constitutional Virginia, Constitution West and uniform’ taxation. X, merely that as Art. 1. That means Sec. there shall be businesses or

classes incomes of the uniformity ‘A of taxation. tax business class, business, same which is uniform to that kind of is not Bridge & unconstitutional.’ Charleston S. Co. v. County Court, single E. 1002.” W. Va. S. syllabus point any provision makes no reference to Constitution of this State. general

At the November, 1932, election in the voters pf this State ratified an amendment to Section Article X, Constitution, usually referred to as the Tax Limitation adopt- Amendment. After the amendment was ed, pertinent, Section Article as fol- insofar as read “Subject lows : exceptions contained, in this section throughout taxation shall be State, and uniform and all both personal, real and be shall taxed proportion in by its value to be ascertained as directed law. property No one from which a tax higher collected any shall be taxed other property equal value; except aggregate taxes year upon personal assessed property in one employed exclusively agriculture, including in horticul- grazing, products ture and agriculture de- as above fined, including stock, live by producer, while owned money, notes, and bonds, receivable, bills and accounts stocks and intangible personal other property similar fifty shall not exceed cents on each one hundred dollars upon of value thereon and owned, all used and occupied by the exclusively owner thereof for residential purposes upon and occupied by farms and cultivated their dollar; owners bona-fide upon tenants one and situated municipalities, outside of fifty cents; dollar and and all other such * * situated within municipalities, dollars; two Pur- suant Amendment, to this Legislature, by Chapter Regular Acts of the Legislature, Session, 1933, and by subsequent Amendments 1933 and not here pertinent, following enacted the statute: Property Levy “Classification of Purposes. for purpose

—For the of levies shall classified as follows: tangible I. personal “Class All property em- including ployed exclusively agriculture, hor- ticulture grazing; and products agriculture (including “All live-

stock) producer; while owned moneys notes, bonds, “All bills and and all receivable, any other in- accounts and stocks tangible personal property; and property owned, used oc- “Class II. All exclusively cupied by residential the owner for purposes; farms, including for horticul- “All land used grazing, cultivated occupied

ture and tenants; their fide owners or bona personal property sit- “Class III. All real municipalities, exclusive of uated outside of II; classes I personal sit- “Class All real and IV. municipalities, exclusive of class-

uated inside of es I II.” the case

Thereafter, decided County Fed Against Hancock Tax In Re: Assessments Association, Savings Va. Loan eral W. determination principal question 543. E. 2d S. syllabus case, the two only which one to and directed, interpretation of Section points are was Legislature, 3, Chapter 118, 14-a, Acts of Article relating the as 1939, Code, to §683(1), 1955 Michie’s property of purpose of the for the taxation sessment savings building and federal and loan associations decision, two This a three to two associations. was loan dissents, Judges writing separate of the of the any dissenting opinions there and in neither of majority opinion quotations from the reference certain quoting After the statute will out herein. which be set discussing provisions, the Court said: its “* * * properly in- hold that the assessor We association’s cluded in his assessment covering property reported $650,903.35 the sum the un- surplus, association’s profits, divided in- reserves uncollected terests. by study “We are fortified in our conclusion provisions relating of the constitutional tax- guided ation which have from the us founda-

tion of the state. That all both real personal, assessed, shall be is one of the system fixed stars in our of taxation will disclosed below.” pertinent quotations appears

Immediately thereafter 1863, 1, VIII, the Constitution from Section Article 1872, and 1, X, Article of the Constitution 1, X, the Tax Limitation Section Article as amended part Amendment That of 1932. of Section Constitution, which, the Constitution of since “* * * provided property has that: No from higher tax be collected shall be taxed * * equal value; property opinion way for the time made an of this second into Court, and, quoted furthermore, page it on one was three times. The first such case will be discussed later opinion. following page, in this the Court said: On the “The contention that we reduce the assessment of should because, contended, certain association’s classes, particularly estate, of other as- real something sessed at less than its true and actual value is without merit. In West Penn Power Co. v. Board of Review, held, 112 W. Va. E. it S. effect, taxpayer that a was entitled to have his assessment reduced to the level at which other governmental of the same class was assessed in the same unit. It applies will be noted' that this decision appear of the same class. does not in- tangible property in Hancock is assessed at less is, than its therefore, true and actual value. There no application basis for of the rule laid down in the West Penn question case. Christopher This was raised James, 813, 816, W. Va. E. S. 2d body opinion was stated in the require- that the ment of 1, and uniform taxation set out in Section Article X of our merely Constitution that ‘means as

361 there incomes shall property, businesses classes also, Bistor v. McDonough, uniformity of taxation.’ See Telephone Co., 277 v. 417; People 624, 181, E. Ill. N. 348 (Italics supplied.) Charleston 36 N. E. 2d 362.” Ill. County Court, supra, v. Company Bridge Kanawha & S. cases of the two Illinois cited. An examination was approve the they support and shows, that while however, cited, they proposition for were which bearing contains in mind that the Constitution Illinois court in the Bistor species” provision, the one no “no * * “* Constitutions Under our successive case stated: uniformity and is mandate of taxation has been taxing of all taxing at foundation and lies authorities Orvis, N. E. People Ill. power. v. uniformity requires one rule of

A.L.R. 325. This greater pay propor- compelled person shall not be according taxes, value of his tion of taxing Uniformity [Citing in im- another. cases.] taxation; equality plies equality and this burden of uniformity the basis of assess- exist without cannot *” * * A later ment, taxation. in the rate of as well as County case, People Ross, ex Collector rel. Illinois Q. Co., 2d Chicago, Ill. 45 N. E. B. & R. stating: note principles, head

applied these first average equalized of rail- valuation assessed “Where throughout per fixed at 35 the state was road cent, county value, extended on total taxes of its cent, valuation in of 35 equalized assessed excess an illegal.” case, the Tax In that Illinois excessive were value of railroad’s had assessed full Commission per- proper and allocated the property within state through centage line thereof to the counties County. stip- operated, one of which was Carroll was property generally Carroll ulated fifty per fair cash whereas cent its assessed average generally at an counties assessed thirty-five per value. were cent of fair cash Taxes County, against railroad in Carroll extended fifty per cent of the on an assessed valuation based' value, and, noted, the court held heretofore full

362 thirty-five

such taxes of excess based those per illegal. cent valuation, assessed were excessive and In Against Re: Tax Assessments Fed Charleston Savings eral & Association, Loan Savings First Federal & Association, Loan Virginia Building West and Loan Empire Association Savings and Association, & Loan 126 506, W. Va. 30 S. E. 2d this Court had before it for re judgment view of the Circuit Court of County Kanawha fixing ¡theproperties taxpayers 'of assessments imposition for the of ad valorem taxes which it became necessary provisions Code, construe 11-3-14-a, of as amended, relating to the manner in which the purposes properties assessment building and loan associations should be ascertained. The Court “But said: we do appellants that, understand the to contend admitting power efficacy legislative en- actment of the same cannot be administered di- as rected, against where to do so would discriminate owners taxing same class in same reality paramount question pre- district. This in is the appeal.” sented on this There follows this statement given gravest must be consideration in consider- ing proceeding: the issue before this Court in the instant “Appellants produced testimony tending have to show property, estate, that other classes such real as oil gas properties, goods automobiles and household are at assessed less than their true and actual value in Ka- County. nawha We think testimony must dis- regarded. ‘equal and uniform’ Con- our merely stitution ‘means that as to classes or income business there shall uniformity of taxation.’ James, Christopher Va. 12 W. S. E. 2d Bridge & also Charleston Southside 816. See Co. v. supra; County Court, County Hancock re Federal Association, Savings & Loan 125 W. Va. E.S. * * *” quoted opinion 2d. 543. Thereafter there is questions several answers directed to and made Deputy Chief Assessor Kanawha “the types methods assessment” certain other of Class at hun- Money valued property. shows.that: seventy per cent; per at about accounts receivable dred approxi- accounts, at cent, then installment unless approximately cent; per mately sixty-ñve livestock at value; approxi- fifty per purchase in taxpayers evidence showed discrimination referring assessment, said, in to their assets: this Court * “* * security it a Clearly, safety is as relates to ordinary note or type of from the different therefore, Why, asked to reduce we be account. should to value, merely as because below its true an assessment uncertain, of which the value is other determined, accurately cannot be of its character reason plan assessing have, good faith, adopted in officers repeated arriving This later at an value?” estimated * * “* language: do not opinion in other have in the We ascertained the true and actual value was a case where value; from that but rather allowed and a discount allowed, particularly the discount was case where *” * * intangibles, in an effort to reach the true value. authority legislative under reverts to the The Court then X, Constitution, 1, Article of the provisions of Section ascertaining prop- the value of provide “methods” Amendment erty, Tax Limitation concludes again changes thereto and cited with reference made no Company authority. Bridge As case as the Southside * * “* noted, it was there held that the: heretofore legislature prescribes in it shall be the manner uni taxed, which mode of taxation shall (Italics supplied.) property.” classes of form as Company Penn Power of this Court in the West The decision light supra, se, of the sub was discussed ca Supreme Court of the United sequent decision Nashville, Chattanooga Ry. & Co. St. Louis States Browning, Sup. Ct. ed. U. L. S. expressed that, latter

and doubt was view decision, Company Penn could “now West Power case

be sustained sole reliance on the Amend- Fourteenth “* * * Later, ment.” may the Court said: be that principles sound, of that case are and that our under Constitution, without reliance on the Fourteenth Amend- ment, they we should adhere thereto. But where do * *”* Although pertinent lead provisions us? Constitution, Section quoted Article of our are opinion, to, there is of, no reference or discussion “* * * provision that: No one higher from which a tax be collected taxed shall be ** than equal value; *.” testimony “tending to show” that other classes property “were assessed at less than the true and actual County” value in opinion. Kanawha is not related in the Syllabus The 3rd Point of the case reads: “To entitle a complaining taxpayer ‘equal to relief under the uni- form’ X of the Consti- Virginia, showing tution of West there must be a clear against of discrimination him in the assessment of type property. same Such discrimination is estab- showing only lished where the that other type a different apparent assessed less value, through process face estimation, and in a effort, good faith to arrive at the true and actual value thereof.” it,

This Court had before in Bankers Pocahontas Coal Company, County al. et v. Court County, McDowell 174, 801, 135 W. Va. 62 question S. E. 2d the of whether taxpayers the lands of the had been assessed ad valorem disproportionately taxation “to the valuation of adjacent similar and only lands.” question That was the Court, before the judgment affirmed the Circuit County, which, Court McDowell in turn had County Court, effect, affirmed the action of and, the in the taxpayers Assessor of McDowell that had Syllabus suffered no discrimination. The 2d Point con- beginning firmed what this Court has held from its unjust “Arbitrary by that: or fixing action an in assessor cogent the by land must be shown clear and proof in complaining taxpayer order that be

365 The given allegedly valuation.” excessive relief from an question entirely Syllabus Point clear as 3rd is not being considered, opinion some state- here but in go beyond the narrow issue ments are made that far record, least, presented by or, as revealed opinion. It of fact contained in becomes statements length necessary, therefore, quote from at some opinion. organic exceptions law “With certain equal

this requires ‘taxation state shall throughout State, prop and erty, uniform personal, be taxed both real and shall di proportion to ascertained as its value to be * * 1, Con rected stitution law Virginia. adoption Since West to the Consti amendment classification 1932, August 10, tution of on this State question of uniform Court has considered James, Christopher v. taxation. In a de 2d in which 122 12 S. E. Va.W. tax was ficiency income assessment of State the con- considered, relation to the Court equality uni- requirement stitutional following pertin- formity in taxation made merely means ent ‘That statement: in- property, businesses as to classes uniformity of taxation.’ there comes shall Christopher foregoing in the The statement Association, approved Re: Loan in In case was The 426, 434, 543. same E. 2d 25 S. Va.W. Tax upheld Re: principle likewise 513. Assessments, E. 2d 30 S. 126 W. Va. As Re: Tax in In judgment of this Court Supreme by the sessments, supra, was affirmed Fed Charleston of the United States. Alderson, Ct. & S. eral Loan Ass’n. Sav. well L. ed. 857. U. S. jurisdiction that established law uniformity are confined equality of taxes species all taxable rather than to a taxing property in a unit.

$ ^[*] showing, the case as in there is “When Power Co. v. Review, Board 112 W. Va. 164 S. E. that has been taxed on the basis of one hundred cent of its true actual and that all other same taxing in the same unit is assessed on a basis less than the true and actual the assessment complaining on the lands of a tax- payer opinion should be reduced. The in Power Review, Co. v. supra, Board may be of doubt- effect, ful force and in view of the comment made in opinion this Court’s In Re: Tax in Assessments, supra, But, giving opinion the case of Review, Power Co. v. Board of supra, weight, full force and Bankers and Croz brought er have not pur their lands within the holding view of the in that case. The evidence proceeding in this is sufficient to show that general plan there relating was to the valu ation of lands similar to the lands here con Hence, sidered. no reduction valuation of Bankers’ and upon predicated Crozer’s lands can be theory enunciated in Power Co. v. Review, supra.” Board of Although further reference will be made decision case, that, of this it should be noted while the statement Bridge Company County Court, supra, v. that a tax upon all businesses of the same which class is uniform business, enlarged valid, as to that kind of was “* * * Christopher James, supra, pro to read: merely vision means classes of businesses or incomes uniformity there shall be of taxa (Italics tion.” supplied.), such statement converted “* * * language: in this case'to this well estab jurisdiction lished law in equality that the uni formity are taxes confined ato rather taxing taxable in a unit.” (Italics supplied.) stated,

As heretofore this Court held in In Re: Tax Against Assessments The National Bank West Vir ginia At Wheeling and The Savings Morris Plan Company, Loan supra, provisions Code, under the 11-3-14, providing for the manner the true and

367 banking capital institutions actual stock purposes, is not determined tax assessment shall enforcing complied by “book adopting with opinion, “A said: method the Court value” alone. In however, believe, assigned. number of were errors We following propositions that a determination will * ** (5) questions: afford answers to all material taxpayers been denied whether either involved has Syllabus relates process Point due of law.” The 7th There Constitution. the XIV Amendment to the Federal 1, relating syllabus point is no Section However, part of the first the Constitution of this State. that quoted, is directed that Section wherein property directed value of ascertained as to be.

law, had only part case, any application Court in that to the decision of this appears but, nevertheless, Page opinion on 680 of uniformity required re- paragraph: “Moreover, required particular class. It is lates of different classes or income businesses uniformly. equally and Bankers Pocahontas taxed 174, County Court, 62 2dE. Coal Co. v. 135 Va. S. W. Against 801; Fed In Re: Tax Assessments Charleston 506, al., Savings Association, eral & Loan et 126 W. Va. 624, 89 513; 2d affirmed 324 U. S. Ct. 30 S. E. S. 857; Alderson, Va. 30 S. L. ed. Arslain W. v. Against 533; In Assessments Hancock E. 2d Re: Tax County Savings Association, 125 Federal and Loan W. Court, 543; Bridge County Co. 25 S. E. 2d Va. 658, 24 1002.” 41 W. Va. S. E. Against Assessments of In Re: Tax

In the recent case Dickinson, Company, et C. The Southern Land Charles taxpayers al., 2d Va. 100 S. E. W. assigned following “(1) tax- errors: Valuations on payers’ properties their true and actual are in excess of against by values; lower (2) taxpayers are discriminated adjacent taxpayers are property; (3) of like valuations prop- against III of Class assessment discriminated II County and Class erty in of its value Boone at 61.75% 25.85%, property and IV Class 28.45% against respectively; (4) taxpayers are discriminated County III because Class Boone is assessed greater percentage at a true and actual value counties; (5) taxpayers III Class in other against are discriminated their because higher Boone is taxed than other Virginia in equal West of value.” It clear is opinion from the in case that the decision turned this evidence, taxpayers and was held that proved against they had not had been discriminated assignments unlawfully any regard alleged in as of opinion Assessor, error. It is stated in the The his that: deputy mining engineer competent and a all “viewed get properties they to’ were able ‘to in Boone County making complained of.”; before the valuations taxpayers, the two witnesses of the in contradiction way opinion of of the and evidence Assessor his witnes- ses, conflict; created mere and of under the decisions Court, this the assessments would not be disturbed. It is true, however, provisions pertinent that the of Section X, quoted, following Article were and statement: is “* * * requirement equality uniformity This and taxation, X, as set forth in Article 1 of the Section West Virginia Constitution, means that as to classes property, uniformity business incomes there shall be * * Company *”, citing of taxation. the West Penn Power Review; Christopher James; . Board v Bridge & Company Charleston Southside v. Kanawha cases; to which reference has heretofore been made. interesting cases, to note in not one these pertinent Court,

and in no other decision of this has the species” provision X, “no one of Section Article Constitution, discussed, or been even mentioned. In a cases, noted, quoted along few as heretofore it was with provisions Section, If, the other but that was all. by appellees, contended Article Constitution, construed, provisions has been thereof that “all personal, both real and shall proportion value”, be taxed to its “no shall be be collected which a tax property from have value” higher taxed “equal meaning beyond have no determined to been cited, Section, no case of that and uniform” If found. that construction is find none which we Section, it undertaken to construe this Court had jurisdictions authority where- in other have found would provisions were or similar constitutional in identical considered. II, of provisions pertinent of Section Tennessee, 1870, were construed

the Constitution Co., Ry. Taylor & N. 88 F. v. Louisville Taft, Howard opinion therein was written William course, Judge, who, Chief later became then Circuit pro Supreme Such Court. United States Justice prop “All Tennessee read: of the Constitution of visions * * taxed, *. personal erty real, and mixed —shall be — property according value, that All be taxed shall Legislature manner as to be ascertained in such direct, equal and uniform taxes shall be shall so throughout species property the No one State. of from higher may a be collected shall be taxed than which tax species property (Italics any the same value.” other Judge Taft, opinion, “The sole Supplied.) in his said: purpose to secure of the constitution was manifest property uniformity equality all the of burden doing (conceding that state. As a means of so in the one), provided it is the correct construction defendant’s according true to its value. the assessment should be object by expressly pro emphasized the section the higher species property be taxed viding should that no species. us a have before case other We taxpayers complaining taxpayer, and other owning species property, at a are taxed same species property. higher rate than the owners of discrimination, legislative by not come about This does disregard systematic of the by intentional and but charged assessing duty all other with law those by complainant property than that species of owned flagrant violation of the class. This is its fellows same forbidding of the clause of constitution discrimination species property. in taxation between That different * * *” self-executing. (Italics supplied.) clause is Supreme Arkansas, Court of in White River Lum citing Company State, ber 175 Ark. 2d S. W. v. Taylor Ry. Co., supra, v. Louisville & N. held that it was pertinent provisions of the violation of the Constitution taxpayer’s fifty of that state tax the at value, cent of its “property market in the whereas other county only thirty per mentioned had been assessed at cent of its value.” It was therein held that tax- payer’s thirty per should assessment be reduced to cent conformity of its value in with the on other assessment properties. of the This is Con- Arkansas property subject at stitution in effect time: “All * * * according value, to taxation shall be taxed to its that value to be ascertained in such manner as Gen- Assembly direct, making equal eral shall same * * throughout uniform *. No State which a tax be collected shall be from higher taxed than another * * *” (Italics supplied.) value. Co., (Ky.),

In Greene Louisville & Interurban R. Sup. pro- 61 L. U. S. ed. Ct. Kentucky vision Constitution construed: “All was persons whether owned natural or cor- * * porations, proportion shall be taxed in to its Although the Constitution of that state has no “no one clause, species” pro- held that the constitutional by assessing was violated tax- vision payer seventy-five per cent of actual value while general systematically taxable was assessed intentionally fifty-two per at not more than cent of actual value. Langley,

In the of Porter Texas case 155 W. S. per bank shares assessed at one hundred cent of were true property real actual value while of the value only forty an acre at was assessed $90.00 $125.00 per cent of actual value an acre. The collection of enjoined being tax on the was excessive bank shares provisions of the of the Constitution violation Texas “* * * proportion to its that: shall be taxed although value.”, no of that state has the Constitution species” provision. “no one 1 of Article IX of the Constitution of Illinois legislative

provided body of that state should “by levying tax, by valuation, provide revenue a so that person every corporation pay pro- tax in shall * * his, portion to the value of her or *.” its Holmes, Bank Ill. In First National Urbana v. personal property 92 N. E. bank and other stock seventy-five per at cent were assessed of their actual forty-three value real assessed at while per value, cent of actual held that its the court such was in violation of the Constitution of assessment “* * * opinion, state. In the it was said: It is not within Legislature power provide that different differently, and, valued if classes shall be mortgages, bonds, moneys, are valued a securities at proportion different of their full or on a different basis from other the Constitution and law * * *” are violated. both Cummings (Ohio), Bank, v. Merchants National Supreme 25 L. 101 U. S. ed Court of States, applying Ohio United Constitu tion, judgment affirmed the of the Circuit Court in en joining excessive taxation attributable assess ment at one hundred cent of their of bank shares real true whereas was assessed about value; ordinary personal property one-third actual amount; moneyed capital at about the same at six- of its true and value. The tenths actual Constitution “* * * merely provided passed Ohio that: shall be Laws taxing moneys, credits, invest uniform rule bonds, stocks, joint companies, ments in stock or other ; according personal property, wise and also all real or * * *” money. to its true value in Although there found from decisions in which the

jurisdictions contrary cited to the cases last provisions, species” “no one contained no Constitutions counsel, we nor have are cited no case in briefs we discriminatory assessment any, permitting such found purposes tax as is shown property for ad valorem provision which con- constitutional under a this record species” clause. a “no one tained any to construe had at time undertaken If Court X, 1, Article of our Constitu- provisions of Section pro- species” tion, and “in the “no one and read out of it would provisions, such a construction portion to value” origin certainly led to a consideration of its have 1861-1863, in which it was Convention Constitutional legislative which led to adopted, and the debate providing adoption for the submission of the resolution Amendment to Section of this State the to the voters 1932, and, adopted X, as heretofore Article stated, Amend- the Tax Limitation is often referred as proceedings Fortunately, the debates ment. State were re- Convention of this First Constitutional printed at direction have been ported, preserved and containing volumes, more in three pages It twenty-five of written material. should hundred pertinent provisions of as the insofar be observed concerned, they they remain were are that Section Convention, approved by adopted when fol- prior 1863. There to June of this State voters delegates to quotations from the debate lows some commenting adoption. prior to its the Convention species” pro- general, and the “no one Section delegates following made the particular, vision Chairman following J. Paxton was observations: W. Finance, and, in Taxation and sub- the Committee on including taxation, mitting became on what the Section said: “* * * this, sir, people that the West complained; Virginia have ever whilst may have been oc- of secession ordinance casion part movement on the this new State apprehend can little people, I there of our in the mind one that the funda- doubt mental cause for this division and desire for injustice op- new state pression found in the people from which our have suffered taxation, oppressive unequal from and taxation representation. unequal framing me, sir, appears “It a new con- Virginia people now for the

stitution we should against West guard particularly be careful perpetra- liability future any injustice any portion tion of of our such on people.” own “* * * Delegate Now, sir, Van Winkle: clause, here

reference to the taxation rule; legislature precisely comes defining giving principle it is persons and all to understand other here, there can be is meant what language escape of the whole no from it. The concise, appears there and it to me section is may unnecessary repetition. that no Some very palateable, nec- nevertheless not be but words, essary. species says many no one that in so may a tax from which any spe- other be taxed collected shall less I the Convention will value. trust cies * * *. precisely as it retain this clause stands. ques- point, turning the test I think this is the matter, on this and it is now tion of this proposed de- question Convention to they really that are do want taxes cide whether alike or leave the whole again matter at sea pres- have been under treated as we and be Constitution, unjust propor- an ent tion of by taxes, everybody knows, paid been as has the commonwealth— western section of hung; taxed, sir, pay that are for slaves runaway slaves; pay rewards for taxed to propor- not taxed in themselves then slaves * * * their value. tion to * “* * imagine system I cannot uniform’, Con- ‘equal and the called can be may depend question of it is not a vention language here —not because these words superflous they them simply want —that get they rid It is want to stricken out. because principle. question And if is a mere

words, beg then I to let the Convention stand, precisely words and we what shall know this section There can be no mistake means. (Italics it if in.” about these words- are left .supplied.) “* * * -Delegate here are so Lamb: words no misunderstand- clear, precise- so that there ing meaning,-and man as well as a common lawyer say exactly is their effect. can what * * “* * * Delegate goes Then the sentence Dille: second further, proper, I it is a. little think long especially contended for that have so we principle of it it in one view contended for —not clearly every ex- view—and more but Having presses for the first our sentiments. portion history time in the had of our of the state so, upon opportunity clearly an do we fix to legislature prohibition they that shall not any any power in the discretion or exercise they may they may possess, conceive that that any upon species any way, violate principal. this fundamental It to me we seems ought ought provision, to have that and we to impress, it, only upon people so our cumstances, our but legislature any they may that not under cir- any species prop- to reference * *

erty, principle; that violate *. fundamental “Hence, I am in favor of the it section as stands; really I think it is that ought ought to have and we in that we to abide legislature might detail for fear at period history disposed some future in its feel species proper violate in reference to to some grand' ty taxation principle this and fundamental throughout be shall uniform the entire every property according on kind State to (Italics supplied.) value.” “* * * regard Paxton: Chairman to this sec- clause, species ‘no ond one from may a tax be collected shall taxed be higher’ another, gentlemen I can assure commit- I am concerned that so far as bag meal in the concerned, no cat there is tee is just make simply intended about it. is, the first it specific, I think more that much alike taxed that all shall declaration possibly be according cannot to value. There plain. that, any it is so misapprehension about v ^[*] v

iji ij? this; single forgot simply I “A remark is any not in manner restrict does this section privi- legislature imposition on taxes in the anything property. leges legislature manner, pleases, or else that is not any perfect liberty tax in shape form, by any it name or they please, provided they do it what conformity principle; I think to which exception (Italics supplied.) no can be taken.” “* * * Delegate place, I In the second Sinsel: pro- shall taxed in understand is, portion to its value. That if one horse $5, $5, tax it on and if worth another is worth $125, every tax it on And on so with $125. species property. Well, other the mode of ascertaining valuation, as I understand legislature section, prescribe is to —how done and who shall be shall do it and so on. sir, part Well, in the now first of the second sentence, ‘no from which higher a tax than value.’ I be collected shall be taxed presume clause never would have this Constitution had entered into it not been present clause there is a that Constitu- Virginia opposition which was direct tion of suppose principle; and I committee to remove all doubt from the to mind wished their common reader the most proportion value, no be taxed to its should cow, horse, sheep, hog, it was matter whether * * *” might (Italics sup- it be. or whatever slave plied.) * * “* you If want to

Delegate Van Winkle: confer bene- is to constitution make a hope fits we it, to derive from then make equal privileges purview its and don’t give you deny to one another; what to don’t impose a burden you on one that don’t im- pose on proportion. another in only That is the just rule; fair and and if there is cat in meal, I should like to know where it lies. The cat trying must be in pay to make one more than proportion his fair any- if it lies where.” Delegate Brown County, of Kanawha soon to become a Judge Court, of this an offered Amendment as a sub- stitute for which, adopted, if would have read: “ equal Taxation shall be and uniform throughout State on all real both personal according value; prop- to but erty educational, scientific, used for literary, religious purposes may by charitable law exempted be from taxation.” Delegate Brown’s Amendment was defeated vote of thirty interesting enlightening to seventeen. Delegate compare pertinent Brown’s Amendment provisions Virginia Constitution of state, was in effect in that and in what State is now the Virginia, beginning of West until after the of War Between IV, The States. Section Article of the Vir- ginia provided Constitution that: “Taxation shall be equal throughout commonwealth, and uniform propor- than slaves shall be taxed in tion to its which shall man- be ascertained in such prescribed by ner as IV, law.” Section provided: “Every age slave who has attained the years twelve shall be assessed with a tax to and exceeding that assessed on land of the value three age hundred dollars. Slaves under not be shall subject taxation; property may and other taxable exempted from taxation majority the vote of a the whole number of members elected to each house of general assembly.”

If this Court ambiguity had found in Section Article language, con- X, undertaken to construe its as is done, surely by appellees there that it has would tended have been some reference to the Journal of House Extraordinary Delegates, Virginia Legislature, West Session, that in which is recorded action of X, body Section led to amendment of Article By the Tax Limitation Amendment. House Joint Reso- have lution Number there would been submitted to Section, voters this State an Amendment to that following language: power in the shall “The of taxation surrendered, suspended away. never be contracted Legislature just equitable. Taxation shall be The authority taxation, classify shall have for but the rate shall be uniform all of the Legislature adopt pro- same class.” The refused to this posal, and instead substitute for House Joint Resolu- offered, Legislature passed by tion Number 3 was following approved by in the November the voters of this language quoted, inis heretofore State. “property proportion that all shall be taxed in species” provision

to its value” “no one were retained. evaluating

Before of this decisions Court have discussed, light principle heretofore been in the of the decisis, of stare attention should be called to the decision Chesapeake Miller, R. Court in & Co. Ohio April 22, Although W. Va. decided on 1882. no levying question the assessment of involved, case con- taxes was in that did finding provisions strue the of Section Legislature being Act an of the void as in vio- attempted exempt lation of the Section wherein was Chesapeake Railway Company from taxation & Ohio profits company “until the of said shall amount to ten capital company.” cent on the of said refer- With portion perti- ence to that here “* * * nent, the Court said: section Consti- considering declares, first, tution we have been that ‘tax- throughout ation shall be and uniform the state.’ * * real clause, *. But both the second ‘and shows, personal taxed,’ that it was certainly and shall be declare the intent of the the framers of Constitution explicit terms, in property all in the state most that bear the of the Gov- equal should share of burdens its erment, property exempted and no that there should be excepted taxation, specifically in the from unless it was ** declares, third that Constitution *. The itself. clause principle. prop- ‘All taxation shall the valorem be on ad Upon prin- erty personal what real taxed.’ shall be ciple? proportion How be taxed ‘in to its value.’ Shall gives The shall ascertained? clause be fourth n the language, di- ‘to be ascertained answer in clear as any by prevents law.’ The discrimina- rected clause fifth taxing it species of and makes tion in different clear, that and on more taxation be uniform should declaring, principle by ad valorem ‘no one that collected, may shall be from which tax higher taxed other * * State, The also Franklin Ins. Co. v. value.’ See supra. questions In Re: Hancock

In view raised in Association, supra, Savings and Loan Federal Court, Company County Bankers v. Pocahontas Coal holding supra, in the West of the the correctness Company case, decision of Penn Power of the because Nashville, & St. C. Supreme Court of the United States Ry. Browning, al., L. et U. S. decision Browning carefully One case should be scrutinized. case, complaints taxpayer and the of the all rail- other only pertinent, here was companies public utility been discrimi- had roads and against taxing of Tennessee by nated authorities valorem tax- properties for ad such assessed were purposes “while the ation at actual value actual taxpayers two-thirds of other was assessed taxpayer contention, had support In of that value.” county and members of of assessors submitted affidavits intention- equalizers “affiants effect that boards of for tax- ally systematically other assessed * * *” exceeding its value. at an ation amount 75% in the Cir- taxpayer dismissed petition affirmed Court, Supreme Court of Tennessee cuit and the Browning, al., et Nashville, L. v. & St. that action in C. gave opinion, the court (1940). 140 S. W. of that statutes Under the these reasons action:- for its state, Utilities Commission Railroad and Public purposes within that empowered for taxation to assess public utilities. companies named state railroad and other appeal on All reviewed such assessments in this done Board which was Equalization, State case, All confirmed. the Commission’s assessment pur- taxation in Tennessee assessed final, assessors, poses are not local assessments equalizers, all county must be delivered to boards but being such such officials under to assess oath then lists are its true and actual value. The assessment Equalization, which is transmitted to the Board of State by throughout required places the state law to meet at during equalize the assessments of all and “to its session properties state.”, be final in the and its action “shall * * * passed upon and all sub- conclusive to matters ject judicial procedure, may By review.” body Equalization observed that the is the State Board only authority ap- the and one which final has the Tennessee, proving assessments of includ- ing public companies railroad certain In utilities. opinion, county the the said: “If the assessors court making county equalizers the few members boards hearing affidavits on the before Commission assessed at less than actual and did so intentional- systematically, showing ly and there is no whatever that Equalization the members State Board violated by under-assessing property. their oath of office In contrary showing, of a absence it must be assumed that duty. allega- the State Board did their There is neither proof intentionally tion nor Board that State systematically equalize' refused to assessments at actual good validity

value. The faith of such officers and the * * *” presumed. of their are actions In contrast to the applicable State, provided statutes in effect in this it is by law in Tennessee that the action of the State Board Equalization, making final assessments the value companies public of railroad and certain purposes, for taxation utilities “is made final and con- open clusive statute and not is to review courts certiorari, on not, where the Board has with reference assessment, jurisdiction exceeded its or acted * * *” illegally affirming fraudulently. cer- Supreme tiorari Appeals Tennessee, Court of Supreme rejected Court of the United States the tax- payer’s against claim that the assessment it “violates guarantees pro- Fourteenth Amendment in its of due equal protection laws, cess and the offensive is opinion, to the Commerce Clause.” In the Justice Frank- “* * * Supreme furter said: But the Tennessee petitioner’s did not deem evidence sufficient overcome presumption reviewing in the exercise of its function, equalized the Board had ac- assessments in cordance with the command of state law. We should be reject question reluctant on such a the state court’s foundation, determination as there without * * *” enough repudiation. in the record to warrant its pertinent opin- This further is made in the observation *“* * emphasized Company ion: It must be singled no claim makes out from among public corporations service for discrimina- grievance tion. Its asserted common to the whole is put class. We must to one side therefore all those cases petitioner by relied on the which invoked the Fourteenth against par- Amendment discriminations invidious to a * * *” taxpayer. that ticular should be noted opinion Supreme the of neither the Court Tennessee opinion any Frankfurter there nor of Justice refer- species” ence to the “no one Tennessee Constitution, any Taylor nor is there mention of Louis Co., supra, ville & N. R. decided in 1898. Penn West taxpayer in the complaint of the it had discriminated Company been

Power case was property had been against individually, real in that its per cent one hundred purposes at taxation assessed property in value, other owners such whereas of its eighty per only cent at assessed Brooke had been property, and the Assessor such apparent County flatly It seems testified. so Browning Supreme Court case decision in the of this way affected the decision in no the United States Company case, applying, Penn Power in the West Court did, only Amendment to the de- the XIV this Court as language Perhaps in the two decisions used cision. casting mentioned, Court, doubt heretofore of this holding Penn Power Com- in the West validity of the case, Supreme decision in pany of the Court’s view case, supersensitive Browning indicative of the reac- involving questions of in some cases tion of this Court Amendment to the Federal Con- under the XIV taxation Supreme stitution, the decisions interpreting it. It would seem that such States United and, major contributing dicta, per- factor awas cases, provisions haps, decision in some while X, Article of our Constitution were but Section gentle breeze, ignored. if it blew from the Even Potomac, as if had was treated it hurricane force. If taxpayer an doubt that individual there could recourse, clearly where was shown that without was ad property had been assessed for valorem taxation his value, per actual cent of its at one hundred his neighbor’s property like kind had been assessed for eighty per value, fifty purpose per cent of or such cent, percentage, provisions lesser under the or some X, Constitution, 1, Article of our or of the XIV States, Constitution of the United Amendment alarming true, and, indeed. If that were that would Constitution, of our under Section if such long taxpayer no relief could obtain so class, type, species, or same assessed at one actual cent of its while hundred 382 types, classes, species, or were at one- assessed

half of 1, its then Section would be completely emasculated. J., Pages Decisis, 197,

In 17 M. appli- Stare 185 to Virginia Virginia cable West cases are collected and upon. commented Reference is made to of the cases cited, specific there but only attention will be directed to a few. The rule of stare apply decisis not where does the former decisions have misapplied misunderstood or contrary Simpkins law or are White, reason. v. “* * * 43 legal W. Va. 27 E.S. 361. principle no right.” is ever settled until it is settled Weston v. Ral “* * * ston, 48 W. Va. 36 E.S. 446. it is better to right, than to be consistent with the errors of a hun years.” Lovings dred & Co., R.W. v. 47 W. Va. Norfolk 582, 35 S. E. 962. “Whenever decision of this Court found, is consideration, on careful illogical, to be opposed public policy, supreme subversive of the law of land, public welfare, sovereignty and the * * * people, it duty is solemn of this Court to dis approve it and end evil influences.” Ralston v. Wes ton, Syllabus W. Va. E. S. 826. The 5th Hinton, Point of Burks 77 Va. “The follows: doc grows trine of stare decisis out of necessity uniform and settled rule of and definite basis for contracts and business transactions. If a decision wrong, only it long when has been so the rule of action, time and application its continued as the right parties, rule of between demand the sanction of its error, applies.. this doctrine apply does not questions of the organic construction of law.” This not, by quoting Court does syllabus point of this case, necessarily adopt that extreme view as its own. question brought A law to the attention Court, passed upon it, nor cannot be considered as involving question. the same Ry. Southern Co. v. Chil drey, 113 Va. strong S. E. 221. Obiter dicta or expressions opinion, in an language where such was not necessary case, to a decision of the will not establish a Martin, Chesapeake & O. R. Co. v. 154 Va. precedent. Many of Court 629. of the decisions this 143 S. E. Virginia Supreme Appeals are and of the Court Page support state- in Footnote in cited “* * * expressions, every opinion, in are ment: General in connection with the case in to be read and considered go expressions they beyond are used. If which these ought may case, they respected, not to be but control very judgment subsequent point is in the suit when * * *” Phrases, involved for decision. See also Words and retrospective 39A, Decisis. Stare decisis Vol. Stare infallibility synonymous are not terms. omniscient judgment judg- of this that the final is the Court of Kanawha must ment Circuit imposes the reason that it a reversed for discriminate taxpayer of taxation that is forbidden burden X, Article of the Constitution of this State. Section authority have the to fix the does not assess- This Court may that it be relieved of that ment its so discrimination, but such is statute invested in the pur- and the case will be remanded for that trial court pose. provisions of of the Con- The Section unambiguous. Particularly stitution, is are clear and relating taxing provisions that true as to to the personal, pertinent real and which are plain, simple case. before this Court issue language exempt provides from proportion “shall taxed in No taxation its value. from which a tax be col- higher taxed lected shall be “species”

property of value.” word defined Dictionary sight, New International as: “A in Webster’s shape, form, particular sort, appearance, kind, a outward * * *.” The word “class” is there defined quality, or as: things, group persons, qualities, activities, “A or hav- attributes; set; ing kind, characteristics or a common variety.” species, description, composed or general usage simple that were words hundred ago years present meaning time. Their as well as

was the same as it determined is now. If it should be provisions this Section of Constitution ambiguous, language unclear, were resort should be had to the or inter- rules of construction pretation, compelled this Court would be to reach meaning. conclusion same as to its The constitutional legislative history Section, decisions jurisdictions construing of other identical or sim- courts provisions language ilar constitutional and the used in inevitably would demand the same determi- this Section Judge ably nation. Johnson construed the Section Chesapeake supra, Miller, & R. Ohio Co. v. heretofore observed. only ambiguity

The that attaches to this Section arises from certain former decisions of All this Court. have opinion heretofore and the been discussed in each has quoted usually been herein to an extent that is de- Clearly what sirable. was said in some of those cases in conflict with that is the decision of this Court in the pure others, instant case obiter dictum. In is if what was said that is inconsistent with what is here held recognized rising dignity becoming as to the cases, predicated upon law decisions were accepted decisions dicta in former and it was con- trolling question. dicta, But without whether decision or impelled is to strike Court down is whatever con- those former tained in decisions of this Court that inis Therefore, with the decision in conflict this case. following disapproved as, only are cases insofar in- as, they sofar are conflict with the decision of this Bridge in the instant case: Charleston & S. Co. County Court, 658, Kanawha 41 1002; W. Va. 24 E.S. v. Christopher James, 665, 122 813; Va.W. 12 S. E. 2d Savings In Re: Hancock Federal & Loan Associ ation, 426, 543; 125 E. W. Va. 25 S. 2d In Re: Tax As Against Savings sessments Charleston Federal and Loan 506, Association, 513, 126 W. Va. 30 S. E. 2d 324 U. S. 182, 624, 857; 65 89 ed. S. Ct. L. Pocahontas Bankers County Court, Coal Co. v. 135 W. Va. E.S. 2d Bank 801; Against The National In Re: Tax Assessments Plan Virginia Wheeling The Morris Sav- West ings Company, S. E. 2d and Loan 137 W. Va. Against 655; The Southern and In Re: Tax Assessment Dickinson, al., et Company, C. Va. Land Charles W. 555. 100 S. E. 2d principal or the sole of these either four cases validity Act an issue before the Court was the Legislature directing which the value the manner in type ascertained a certain should against it. laying These for the of an ad tax valorem passed pursuant were in Section Acts X, proportion to taxed in that “shall be its value directed law.” to be ascertained as finding the Act valid in each of action Court in approved. cases, those cases the trial In two other taxpayer had court was affirmed in its decision prove been dis- failed his had assessed proportionately property. are Those to other decisions approved. to the con- likewise The other case related validity struction income tax law then of the state effect, “property” provisions and did not involve ap- too Section Article of the Constitution. proved. accept cannot of those We the view principles contrary cases would have been decided be- herein discrimination enunciated if evidence of in species property tween clear as it of had been as case, taxpayer solely this the had relied the and Í, X, “property” provisions pre- of Section Article thus question senting precise to that has been the Court passed upon respect judgment in this case. Our for the perspective Judges participated in and those who Judges decisions, particularly who wrote and reject suggestion any to opinions, is that we must such contrary. the United Amendement to Constitution The XIV years Section adopted 1868, five after in States was many X, time State At that Article of our Constitution. provisions “equal uniform” and Constitutions contained relating including Several, ours, to taxation. contained provisions specific relating more and restrictive taxing construing process” “property”. “due “equal protection provisions the XIV laws” Amendment, consistently Supreme held Court has taxpayer complaint that a no of discriminate has valid property long under state law as he taxation so is treated taxpayer only as all others in his “class”. It is when the against is discriminated that he within his own class may successfully protection invoke the of the XIV Supreme adopted phrase Amendment. The Court “equal conception uniform” this describe equality taxpayer case, of taxation. The this ex- in ample, expect could no under the XIV Amendment relief Court, Supreme or in the of the United alike, States. It and all others are “class” taxed ;i.e., upon an assessment of at one hundred their per cent of its actual value. In reference taxation generally, Constitution State, guarantees protection much least that taxpayer. provides equal It that “taxation shall be However, regard and uniform.” with to “all personal”, gets both spe- real and our Constitution more provides cific and property” restrictive. that “all ex- cept specifically exempted pro- be “shall taxed portion Furthermore, to its value.” so that there shall misunderstanding it, no about there is the further that: “No from which may a tax higher be collected shall taxed only value.” The limitation which places upon Legislature this Section imposing any except kind of taxes taxes is “equal that such taxation Thus, shall be and uniform.” as to privileges, franchises, license taxes taxes on incomes, cetera, may be, et is, there classification graduation taxes, such sometimes in what some degrees. Arslain, consider Alderson, extreme etc. v. Occupa- W. Va. 30 S. E. 2d 533. Business and Code, 11-13, amended, tion Tax example. is an But altogether. Legisla- is a different matter The designate duty the manner power to ture has the “species” different or actual of kinds in which the value property may ascertained, but when such value of species property must of ascertained, all has been equally proportion value. taxed to its necessary imposition of an Four elements are to taxpayer; property (2) taxable (1) tax: A ad valorem value; (4) property; (3) a rate an of assessment its State, is on the the rate based unit of valuation. pro- on each one hundred Under dollars valuation. amended, property Code, 11-8-5, divided visions of is pursuant classes, noted, four to the into as heretofore The constitutional Tax Limitation Amendment 1932. provide the rate of amendment and the statute upon property the different shall not taxation classes upon designated money each hun- exceed a one sum property. dred The assessed value such dollars property appellant I falls where maxi- in Class fifty hundred mum rate on each dollars as- is cents complaint for in that sessed valuation. no cause has upon property regard imposed all for the same rate was year of that for the What 1957. class Kanawha clearly complains of, taxpayer the evidence complaint valid, shows that his its year upon for an value taxed assessed actual value of whereas other except money less was taxed an assessed value property. the Tax Limita- the actual of such Neither legislation Amendment, enabling pur- enacted tion nor the “species”. it, “classify” property by purported to to suant I, There are different Class several and, course, many in the of 1932 of Section other three classes. Amendment except change purport did to not designated properties prohibit taxing of certain guarantee destroy above rates. not fixed It did proportionate the “no taxation taxing species” provision. empower'any official Nor did it Legislature could or the do indirection what it purposes directly. wholly do farm A horse used placed rate I for bank in Class a share of stock are both of purposes. If the and the assessed value actual value seriously con- dollars, each is four one would hundred no required pay maxi- the tend that the farmer could be fifty of mum rate of on horse while the owner cents his twenty-five paid only of bank cents on the share stock property. his could the same discrimination Nor upon by assessing practiced his at its the farmer horse the of actual value of four dollars while share hundred if both was assessed at two hundred dollars. But stock at one- the horse and the of stock were assessed share half of their the maximum rate of actual fifty placed each, a the of cents hundred was on amount money exactly same if both tax derived would be as twenty- were assessed at their actual value and a rate of imposed By five cents a both. follow- hundred ing procedure, taxing the latter authorities would complying mandatory legislative with constitutional and any importance. if taxpayer law that is of Whether one is taxed twice as much as the by im- other virtue of the position high rate other, of by twice as as the an or high other, by assessment twice as as the it is forbidden Section Article Furthermore, Constitution. materiality it is of no whether species different of property happens to fall one or the other Code, 11-8-5, “classes” of taxing official, as amended. If a legislative sanction, even without tax can now the owner species property high of twice as as the owner of property equal another by fixing valu'e assessed value of the of the former at double the value of the latter, when the actual properties identical, of both there is no reason why such an official could have achieved same prior evil result assessing by Amendment of 1932 properties equally placing and then a rate on one large twice as taxpayer as the other. The in the instant being case taxed higher, year 1957, for the than the owners of all County, in Kanawha ex- cepting the owners money, of other stock bank an arbitrarily unequal assessment unequal rather than an rate. or different The Constitution forbids this kind owners discrimination between gatherer tax- comes at the value whether the tax through payer it is door the back door. And the front or property or taxpayer much forbidden whether owns property. what amount And it matters not small happens kind or he to own. amend, alter, power have

This does not repeal any this State. Constitution prerogative unto people That a the have reserved that is though, power alone. It within our themselves amending paramount duty, prevent our from to others repealing any organic or part the law this State except provided in the the document itself. manner may State, It people after be the of this will of the ninety-six years, pertinent provisions of Section changed removed therefrom should be altogether. so, opportune. If There was re- the time is cently created, functioning, a now Commission and is possible purpose on re- Constitutional Revision whose subsequent of the and the vision Constitution Mr. Frank- Amendments It Justice thereto. majority expressing furter was of a sentiment Ry. people Nashville, & St. L. of this State in C. Browning, al., supra, has et when he “This Court said: previously advert to narrow had occasion to uniformity cramping state provision of these sometimes re- their inflexible clauses, doubt that and has left no taxing powers upon state were strictions conception of that meritorious to be insinuated into Equal equality Protection Clause was which alone Maybe people Maybe not. The designed to assure.” so. prior experiences Rev- Virginia had bitter some George a King III olutionary considered what War with sys- They conception” of found taxation. “meritorious upon unequal unpalatable it cast an burden in that tem representa- without it. least bear those <abld “Taxation losing King very val- principal of the tion” was cause Virginia kingdom. at first part uable of his State abhorred, endured, finally prin- later embraced this ciple. political power seems while the and most property of the taxable was concentrated in the eastern part state, of the it was the consensus of the inhabitants gatherers of the western counties that the tax con- were public only secrated performing officials when their dut- beyond ies pass it came to foothills. So that in 1863 she lost her counties, western primary and one of the causes flexibility “equal was the of the and uniform” of the it, wealthy Constitution of that state. Under part owners of the eastern of the state did not pay upon taxes proportion their “in to its value.” The burden of ad valorem taxation fell heaviest owners, small farmers, the mer- chants and part the householders of the western of the people state. The Virginia, of the new State of West very who had unhappy been indeed with the “meritorious conception equality” Virginia Constitution, de- got manded and into their new Constitution some “nar- row cramping” provisions relating sometimes property taxation, day they and to this have never been changed. removed or people If the of this State demand process” themselves a “equal little more “due protection laws”, regard taxation provided by than is the Constitution the States, United that is a exclusively matter power within their of de- termination. It ais matter that is of no concern of the Supreme States, Court of the any United there- Justice of, person except or other a citizen of this State. is evident people that wary of this State are still publican Levi the and all of his official even successors day. unto this

We are not testimony influenced of the Asses- sor, that, according to the effect to the Tax Commis- appraisal, sioner’s parcels isolated of real in County may vary Kanawha assessment, in as related to actual from nine cent to one thirty hundred per cent. county In a size, any county, this or per- in expected fection is assessor, not of an county court, or a performing in his or approve its duties. We the views Co., Coal expressed by Bankers Pocahontas this Court in Court, supra, City County quoting al. from et v. “Sporadic Gibson, (Va.), E. that: Roanoke 170 S. rule the case deviations from an established petitioner A properties are sufficient. not themselves ap- generally adopted was not plan that must show * * “Though approve plied do not to and: we him. of uniform- standards deviations the constitutional from ity equality, even if there should be we think that from the instances standard deviations a few lands, it would not be assessed valuations similar premise valua- on which to conclude sufficient lands should be reduced.” tions Bankers’ Crozer’s Upon applied conversely ques- The rule must be also. tion, great weight gives also the Court testimony taxing to the correctness of their officials as assessments, In Re: Tax As- reference made to is also Company, Land 143 W. Va. sessments v. Southern E. 100 S. 2d 555. judgment foregoing,

In accordance with the County reversed Court of Kanawha is and this Circuit proceedings, for is remanded to that court further case principles not with herein enunciated. inconsistent

Reversed remanded with directions. dissenting: Haymond, Judge, re-

Believing decision of this as I do that is versing judgment circuit court in case prior contrary evidence, supported unsound, legally logically decisions, inconsistent and is express my emphatically dissent. respectfully I but question beyond there is no The evidence shows general property in Kanawha assessment forty per true value. On at cent and actual of its undisputed evi- contrary clearly appears from merely engaged an effort dence the assessor is properties percentage assess some their value at that comply requirements Chapter in order to with Session, Extraordinary Legislature, Acts First schools, to obtain state aid and that various for types widely per- are different assessed at centages of their value. true and actual For instance uniformly bank per stock is assessed at one hundred value; cent of money its cash on hand and in bank are percentage value; assessed at the same of their accounts sixty per receivable and notes receivable at cent of their value; fifty per value; inventories at cent of their and machinery equipment per twenty cent their original cost. The assessment of real estate is not uni- general ranges per form or nine from cent thirty per hundred and true value. cent of its and actual utterly any general That the evidence fails to establish systematic forty per assessment cent of the true actual value County year in Kanawha for conclusively by 1957 is shown the uncontroverted testi- mony Slack, of John M. then the Assessor of Kanawha County, upon Valley plaintiff, which the The Kanawha Bank, bases its claim to a reduction of the value forty per stock to cent of its true and actual value on the ground that the assessment of the stock hundred at one per cent constitutes an unlawful discrimination to that against plaintiff extent provisions in violation of the of the Constitution of this State equal throughout taxation shall and uniform State, and all personal, both real and shall be proportion taxed in to its value to be di- ascertained as by law, rected that no one from which a tax higher be collected shall be taxed value. plaintiff Called as a witness the assessor was questions gave “Q. asked these Hav- these answers: ing arrived at a method, value the book value what percentage of that you true and actual have as- Q. ? sessed stock A. One per- hundred cent. What centage of you true and actual value have assessed other year Kanawha 1957? A. We

393 cent, attempt per accord- have made an 40 to assess it at Q. ing you effort Bill 3. Have made Senate per County at 100 in Kanawha assess None other cent its true and actual value? A. that, course, I inherited from we

Class might say, procedure past. I if carried on in the Now July may, my I on that conversation with Mr. Brown using throughout that 22 he stated he was book value think, State, exception, I of a bank the entire with the Logan County, and that he had not looked being year proper. factors as we considered last such course, insofar as I know the other banks Then of with- area, capital stock is valued and assessed at in our * * per 100 which is *. Under the book re- cent. 3, actually longer I quirements Bill am no an of Senate expect I aid obtain State schools. I Assessor for if findings follow the mandates have to byat the office of the Tax evaluation arrived State Com- * * money *. hand and Cash on in the bank missioner. cent, per cent, per receivable of appraisal, basing ap- Tax and he is his Commissioner’s praisal upon costs, per 1950 he states is about 25 Q. today’s cent would on Do costs market. less you you assessing are real estate on consider average County per in Kanawha at 100 cent of true Q. I percentage ? A. At actual value do not. about what you you and actual of true value would estimate are as- sessing again go survey it? A. There we back to the Commissioner, Tax the State and he claims it is about per appraisal, per 35 cent his which would be 25 cent than the value Bill less 1957. Senate 3 as refers to However, purposes and actual true value. for of this survey Property the Tax Commissioner’s Evaluation De- using replacement partment depreciation, is costs less they replacement costs, are based 1950 and ac- cording replacement them costs have increased Q. by per from 1950 to 1957 25 some cent. Then would you assessing per were mean that at cent if you actually the 1950 value that assessing would real estate at less than cent the true and actual * * today? Q. say yes. would, A. I it would *. Mr. Slack, arriving value of taxable purposes County determining percent- Kanawha for age schools, you assessed value State aid to do for how the Tax Commissioner know arrived at the value County property? By replacement of Kanawha A. cost Q. depreciation. mean, I they less did examine certain properties properties County? or in Kanawha A. They they spot pieces have checked state that property. However, past thirty days prob- I have many ably fifty people talked to as who have never reported appraiser, property it an on whose was seen they spot (Emphasis supplied). have checked.”

On cross-examination the assessor was asked these “Q. among others, gave questions, these answers: by have also been advised the Tax You Commissioner spot simply obtaining that a check their method of information, you completely by and that were not bound your except my it in assessment? A. Not bound * * Q. percentage purposes. Yes, aid State *. but for figures give spot they you their checks and with particular pieces simply reference to their they opinion, based on information had of the value from know, you which we don’t but which are not sources com- your pletely as to purposes. bound assessment for tax right? only I am bound qualify A. in order to Isn’t * * (Emphasis supplied). State aid. foregoing uncontroverted evidence it ob- From systematic general that there was no vious assessment forty per in Kanawha in 1957 at cent but, contrary, real its true and actual value on the per cent” assessments varied from “9 to 130 estate value; the assessment of real estate not such “at per ap- the Tax than 40 cent of Commissioner’s less praisal” shows that such assessment at least in some more, indicating instances without how much more was any specific forty per case, than in cent of true and its value; uniformly that bank stock at actual was assessed per value; one hundred cent of its and that numerous property per- other classes of were assessed at different centages of their value. Under the evidence has there against plaintiff been no discrimination the favor having stock, other holders of bank been assesed at justifica- per value, cent one hundred of its and there is no reducing plaintiff the tion for stock of the from one general per cent of its or hundred value to nonexistent systematic forty per valuation of cent. In the absence showing general any systematic aof or assessment of property forty per value, at cent of its true and actual plaintiff required the was but es- has failed to dis-

tablish, prejudicial or unlawful there has been no against the plaintiff extent of crimination the per per forty difference cent and between one hundred cent of the true stock. and actual value of its merely systematic plan,”

The evidence to use shows “a language majority, property Ka- assess approximately per forty nawha at of its true cent systematic plan” and actual “A value. assess general systematic does constitute a assessment property and furnishes no basis for determination against plaintiff of discrimination in the valuation property. (Emphasis suplied). and the assessment of its light general undisputed any evidence as- county forty per sessment of in the cent of at value, any prejudicial its true and actual which results in against plaintiff discrimination in the assessment of stock at one hundred cent of its true and actual completely eliminated from this case. The evi- dence an demonstrates utter failure to establish uni- forty per form standard of valuations of cent with which compare plain- valuation at which the stock of the tiff has been assessed and unless such standard is estab- against there can be no unlawful lished discrimination plaintiff higher the assessment of its stock placed upon valuation than that county. Against In Re: Tax Assessments See Charleston Savings Association, Federal Loan 126 W. Va. Savings E. 2d affirmed in S. Charleston Federal Alderson, and Loan Association v. 324 U. S. 65 S. case, though intangi- Ct. 89 L. Ed. 857. In that taxpayer, savings ble a Federal and loan association, approximately thirty per valued at cent more than other of the same class which was approximately seventy per cent valued at of its true and value, sixty were actual notes accounts valued at five seventy per seventy per cent and bonds at cent of their agricultural value, products face livestock and were fifty per purchase value, at cent valued about of their receivable and were valued at about 398 consistently

and uniform held within that and has class upon that a tax is same which of the class business uniform as to that class is not unconstitutional. present

That the decision nu- is in direct conflict with prior involving merous decisions of Court the valid- this ity of upon assessments of based the value of taxes against property challenged tax was assessed surprising judgment, and, my constitutes an entirely disregard salutary principle unwarranted of decisis, clearly of appears cursory stare even a from examination of the cases in which those were decisions rendered. Bridge Company Charleston and Southside Ka Court, 658,

nawha 41 24 S. E. W. Va. error 941, 42 dismissed, S. L. Ed. U. S. Ct. cited approval with in numerous later cases and never criti- departed present decision, cized or from until bridge plaintiff assessment of a toll in the manner required by particular providing a statute method bridges assessing challenged toll and ferries was as viola- provisions tive of the bridge

Constitution. was contended that the be should personal prop- assessed as other real not estate and as erty. rejected recognized This Court contention validity any of the valuation of class where the same class ascer- throughout Points, tained the State in the same manner. syllabus expressed 3 and in that case are language: legislature power “2. pre- The has scribe the method which the valuation of class property may and, ascertained, be where the value throughout the same class is ascertained manner, state in the same re- such valuation can garded uniformity as unconstitutional lack of equality. prescribes 3. what Constitution taxed, legislature prescribes is to be and the the manner taxed, in which it shall be which mode taxation shall property. uniform as A to all classes of 4. tax class, all business of the same which is uniform business, not unconstitutional.” to that kind of as indication There could be no clearer the division recognized valid and constitutional values different with classes into different particular among within if the valuation the classes “equal and uniform, the equal under both class is and provisions Article species” of uniform” and the “no one Constitution, without 1, under one X, the not of Section syllabus other, regard in the to the than the statements Company Bridge case and Southside in the Charleston ‘ class, property as- is of value of the same ‘where/the manner, throughout the same such the certained state for lack regarded as valuation can not unconstitutional be upon all tax bus- uniformity equality,” that “A of and that kind class, of the which is uniform as iness same quoted business, The last of is not unconstitutional.” statement, meaning, any if it means not unconstitu- has the and “equal clause tional under both the and uniform” species” “no one clause of the Constitution. 665, 2d Christopher E. James, 12 S.

In v. Va.W. 813, involving right taxpayer question the of of expenses from tax- to deduct of of certain items business re able then in force but since income under statute discussing meaning require pealed, Court, of X, equal ment of taxation under Article uniform 1, Section “That of the Constitution said: merely property, businesses means toas classes uniformity ‘A tax taxation. or incomes there be shall class, is uniform as upon same business business, unconstitutional.’ to that kind of Court, Bridge County Va. 41 W. Charleston & S. Co. gives recog again 658, quotation 24 S. E. 1002.” That validity of taxes of the asssessment nition equal if the in different classes assessment same class. and uniform within the Against Han Re: Tax Assessments

In the case of Association, Savings Loan Federal cock involving 543, E. 2d valuation Va. S. W. savings and loan association

property of a Federal question assessment of ad valorem taxes and the taxation, whether exempt certain items were from Court, incorporating' majority opinion after in the VIII, provisions identical of Article Section Constitution

present Constitution before was amended throughout equal “Taxation shall be uniform State, personal, and all both real and shall proportion value, taxed as di- be ascertained rected law. No one from which a collected, higher tax shall be taxed ** value; other refer- ring to other classes assessed at less than its language: true and actual “The conten- used this tion that we should reduce assessment associ- property because, contended, ation’s certain classes, estate, particularly real is assessed at something less than its true actual value is without Review, merit. In West Penn Power Co. v. Board 112 442, held, 862, effect, W. Va. 164 E.S. in that a taxpayer property was entitled to have his assessment property reduced to the level at which other the same governmental class was assessed in the same unit. will applies be noted that this decision intangible same appear class. It does not County in Hancock at is assessed less than its true and is, therefore, appli actual value. There no basis for the cation of the rule in Penn laid down the West case. This question Christopher James, was raised in 122 W. Va. v. 665, 813, 816, 12 S. 2d body E. and it was stated opinion requirement and uniform 1, taxation set out in Article of our Constitu merely tion property, ‘means as to classes busi uniformity or nesses incomes there shall be of taxation.’ also, McDonough, 624, See Bistor v. 348 Ill. 181 N. E. 417; People Telephone Co., 303, v. 277 Ill. 36 N. E. 2d (Emphasis 362.” supplied). Re:

In the case of In Tax Against Assessments Savings Charleston Association, Federal Loan 126 506, 513, Va. E. W. 30 S. 2d affirmed Charleston Federal and Loan Association v. Savings Alderson, 324 U. S. 857, involving 89 L. Ed. S. Ct. an assessment of upon savings

ad valorem taxes of certain building associations, and loan associations and and loan by which reductions values fixed the assessor were by the equalization, reversed board of review and by fixed by the values assessor were restored the cir- by Court, cuit court and affirmed the unanimous Judge prepared Fox, opinion, contains several state- pertinent to, and, my judgment, ments which are require should control the decision in this case and a con- contrary majority. clusion to that reached Re- peating previously expressed meaning view of the provision “equal and uniform” of the Constitution ‘equal Court said: “The uniform’ merely our Constitution ‘means that as to classes of uniformity business income there shall be v. Christopher James, of taxation.’ 122 W. Va. E. 2d 816.

S. See also Charleston & Southside Co. County Court, Bridge supra; in re Hancock Savings Association, Federal & Loan 125 W. Va. placed E. 2d 543.” In that case the

S. assessor had higher upon complaining valuation taxpayers placed other valuations just the case at bar the stock of the uniformly plaintiff was assessed with the stock per at hundred banks cent of its true and actual higher value which was than the assessment of accounts sixty cent, receivable and notes receivable at in- fifty per cent, ventories of their true and actual machinery equipment twenty per at cent their original cost, estate, and real to as which there was “gross inequality” thirty at nine to one hundred and per cent of its true and actual value. This Court unani- mously rejected taxpayers the contention of the the higher property assessment of their at the valuation was against unconstitutional discrimination them and held by the assessment as made the assessor to be valid constitutional.

Concerning this Court discrimination question of the a clear us, do not believe we said: “On the record before shown. No contends case of discrimination has been in appellants assessed has been of the plaintiff in The and actual value.” its true excess seriously contend that at not case bar likewise does $6,000,000.00 in ex- is by fixed the circuit court value opinion value of its of the true and actual stock. cess “Appellants would also contains these statements: respective their assets permitted do if to business reported to the assessor. than that were less intervene, a if would such and Federal authorities State above, the assets been stated situation existed. As has originally after appellants were selected of each of to rigid value, taken and care test to its the most against properties guard the fluctuation values securing Clearly, safety and to as relates such assets. type ordi- from the security it a different is therefore, Why, we be nary account. should note or its true asked to an assessment below reduce the value of which merely to other because as uncertain, by cannot be of its character reason is good assessing have, determined, accurately officers arriving faith, adopted plan an value?” a estimated discrimination, opinion finally states: And as to holding goes than this: has been no further What “Our intangible reference with to assessment shown County, types property in Kanawha other than appellants, insufficient establish owned discrimination, justify apply- which would us case ing principles announced in West Penn Power Co. Equalization, supra.” Review and Board of respect Constitu- With tion, opinion statements: “Recent contains these changes brought system, about radical in our tax amendment, adoption tax limitation Section 1 of Constitution, classi- Article X of our where gives suggestion fied, that once has rise to classified, there can be no further distinction as been given there classification. Whether within

403 dependent on the perhaps can be such distinction char- classi- property the four acter of the Each of involved. property purposes tax includes for fications types, ascertainment of value of different very employed. In the na- different are methods things plain- this must be true. The Constitution ture ly says purposes of all for tax gives by directed law’. Who shall be ascertained ‘as law-making authority, Obviously, direction? the sole legislature. building respect and loan fed- to associations, savings types eral and loan as well as legislature given specific direction, has types to other the directions are more and as general. the inherent and do doubt constitu- We give legislature directions, power of the to these tional designed provide keep- long method in they are a as so uniformly, ing property equally tax aim to with by required our Constitution. So far as concerns our Constitution, question we think the State set rest by the decision of Court in Charleston & Southside Bridge County Court, supra. Kanawha case Co. v. That no decided in when there was classification of was purposes, rates, for tax and uniform tax in each (cid:127)taxing district, However, applied property. Sec Constitution, was, X tion 1 of Article as it then provisions respect equality with contained the same present uniformity as those contained in the Consti plaintiff In that tution. case owner of toll legislature bridge provided particular and the had bridges toll method for the assessment of and ferries.” syllabus points quoting After 3 and in the case, Bridge Company opinion continues: “We know any way departs subsequent case which in of no from approval Christopher It was cited with that decision. James, supra. v. later classification of does prin- any departure not, opinion, in our call for from pronounced. they applica- ciples We think are therein system.” present (Emphasis supplied). tax ble to our Company County Pocahontas In Bankers Coal County, McDowell E. 2d Va. S. W. Court, decision, to disturb in a refused unanimous affirmed valuations fixed the assessor which were county the court and the circuit court and which the tax- challenged ground payer the on on that such valuations higher tracts its three of land were excessive and contiguous taxpayers. placed upon those lands of other opinion exceptions In the this Court said: “With certain organic requires of state that ‘taxation law shall throughout State, equal prop- and uniform and all erty, personal, proportion both real shall taxed * * by value to be ascertained as directed law 1, Virginia. of Constitution West adoption of Since the the classification amendment August 10, 1932, Constitution of this on State this Court question considered the has uniform and tax- Christopher James, 665, ation. In v. 122 12 E. W. Va. S. 813, deficiency 2d in which assessment of State income considered, tax was Court in relation to the Consti- requirement equality uniformity tutional in tax- following pertinent pro- made the ation statement: ‘That merely vision means as to classes busi- uniformity or there nesses incomes shall be of taxation.’ foregoing Christopher ap The in the statement case was Association, proved 426, 434, Re: in In Loan 125 W. Va. principle 25 E. upheld S. 2d 543. The same was likewise 506, Assessments, In Re: Tax 126 W. Va. E. 2d S. judgment 513. The in In Re: Tax of this Court Assess ments, supra, Supreme affirmed of the Charleston Federal Sav. & Loan Ass’n. United States. Alderson, 324 U. 65 S. Ct. S. L. ed. 857. jurisdiction law in this established is well uniformity species equality taxes are to a confined taxing than all taxable property rather in a clearly despite statement shows the “no unit." This Court, species” clause of Section in the cited validity uniformity cases, upheld the of taxation with- though particular or class even in a upon property a different value should be within there or or different class if another species, taxation same class was uniform within major- holding of the which is in direct conflict with the ity supplied). (Emphasis in the instant case. Against In Re: The National Tax Assessments Virginia Wheeling

Bank West and The Morris Plan Savings Company, 2d and Loan 73 S. E. Va.W. taxpayers challenged complaining assess- against ad na- ment of valorem taxes company. an The tional bank and industrial loan asses- original made the on the sor assessment basis corporation. in each book value shares stock county court review arrived at a different The considering other relative and factors. methods taxpayers contended that valuation of the shares price be based on a sales method. should This Court re- versed the assessment based on the book value method opinion by and in the which was concurred in of the two judges majority constitute three who the in the case at language: Constitution, “Our bar used this State 1, ‘Subject provides: exceptions to the in this contained, equal taxes shall be and section uniform throughout State, property, the and all per- real both and equal proportion taxed in sonal shall its value to * * by exceptions as directed law be ascertained The application questions have no made the section proceeding. Thus, involved in the instant the ultimate goal ‘equal uniform taxation’.

“Moreover, uniformity required property relates to particular required class. property, of a equally or income of different classes be taxed businesses uniformly. County Pocahontas Bankers Coal Co. v. 174, Court, 801; 62 E. 2d In 135 W. Va. S. Re: Tax As- Against Savings Charleston Federal & sessments Loan 506, al., 513, Association, et W. Va. S. E. 2d af- 182, 624, 857; 89 L. 324 U. 65 S. Ct. ed. Arslain firmed S. 880, 533; Alderson, 126 Va. 30 E. In W. S. 2d Re: Tax Against County Hancock Savings Assessments Federal Association, 543; Loan 125 W. Va. E. 2d S. County Bridge Court, 24 E. Co. v. 41 W. Va. S. 1002.” Against In the of In Re: Tax recent case Assessments Company, The Southern Land decided in 143 W. taxpayers E. Va. 100 S. 2d in which the chal- lenged assessments of ad valorem on taxes lands owned by them in Boone based on true and actual valua- by which, except tions fixed the assessor as to four tracts, by by county were affirmed court and grounds appeal. court circuit on which taxpayers assailed as unconstitutional valuations their as determined assessor and county court, were that the valuations were in excess property; the true and actual value of their they discriminatory were because lower were valuations placed upon adjacent property, similar III because Class property value, per was assessed at 61.75 cent of its property II per Class at 28.45 cent of its and Class IV at 25.85 cent of value in Boone County, county because III Class in that greater percentage assessed at a than the its value counties, same in other and because class taxpayers county of the was taxed higher than other State of value. a unanimous decision concurred in judges joined two who in the decision of the ma- jority bar, rejected in the case the fore- going taxpayers contentions of the and affirmed the cir- upholding challenged cuit court in validity as- opinion sessments. The per- in that case these contains pronouncements concerning meaning tinent effect of “equal both the and uniform” “no species” provisions X, 1, of Article Con- Section stitution of this State:

“Subject governing to the jurisdiction limitations Court, of question before us is raised X, Virginia Section of Constitution, the West which ‘Subject exceptions reads: in this con- section tained, equal throughout taxation shall be and uniform State, personal, and all both real and shall proportion be taxed in to its value be ascertained as which property from species of by law. No one directed higher than taxed shall be collected a tax be * * re V This equal of of taxation, set uniformity of quirement equality Virginia Con X, 1 of the West in Article Section forth 'property, busi stitution, to all classes that as means uniformity of taxation. incomes there shall ness or Equaliza Review and Power v. Board Penn Co. West 862; County, E.S. 112 W. Va. tion Brooke 813; E. 2d James, 12 S. Christopher Va. v. W. County Bridge Kanawha Co. v. & Southside Charleston supplied). Court, (Emphasis supra.” prop- foregoing to all classes of quotation “that as uniformity of

erty, there shall or incomes business Court, conclusively in consider- that this taxation” shows “no ing “equal and the and uniform” both the 1, of the species” provision of Article opinion in the Constitution, quoted in the which were opinion Company and also in the Land case Southern Savings Loan Associ- County Federal Hancock provisions, recognized validity, case, under both ation taxable the valuation of of classifications provided the valuation within types or classes different it and uniform. If did particular class each expressly “all used the terms not have not do so would necessarily imply the existence more classes” which single the valuation class equal and uni- the same to be of which must be of all majority application in the now made form. The species” necessarily of the “no one clause case instant permits only property and “all classes” abolishes single one universal inclusive class existence the valuation for the assessment within every must be the same for kind valorem taxes of ad requirement of all in- property, and universal single in direct and irreconcilable conflict class is clusive foregoing in the series of cases be- utterances with Bridge Company ginning Charleston Southside with Court, 41 W. Va. S. E. Kanawha 408 941, Ed. 704, 42 L.

error dismissed 168 U. S. 18 Ct. S. 1212, 1896, including Re: Tax Assess- decided in Against Company, ments The Southern Land 143 W. Va. 152, 555, 1957, a E. 100 S. 2d decided in which covers period sixty years ninety years one of the six Though existence of none of this State. those cases specific application species” pro- makes “no being cognizant vision, Court, provision this of that upholding validity the constitutional of the assessed valu- particular a ation in class of such when valu- uniform, ation was it did in the as cases of Charleston Bridge Company and Southside v. Kanawha 658, Court, 1002, 41 Va. 24 W. S. E. error 168 dismissed 704, 941, 1212, Re: U. S. S. Ct. L. Ed. and In Tax Against Savings Charleston Assessments Federal Association, Loan 126 W. Va. E. 2d af S. Savings firmed Charleston Federal and Loan Association Alderson, 624, 89 L. 324 U. S. 65 S. Ct. Ed. necessarily considered it to mean no one high- particular a within class should be valued er than in the same class operate prevent it and that did not different valuations in the different classes when valuations same class given equal and If Court were uniform. this had meaning placed upon by the and effect clause now majority necessarily decision case it would have validity reached different conclusion challenged in each of the two cited valuations above during By prior Court, cases. decisions of this period State, two-thirds of the almost existence of this distinguished many judges partic- in which former meaning ipated “equal and in which it clarified the provision of Article it har- and uniform” species” pro- monized with the “no one apparently and avoided the vision irreconcilable conflict present between them which has resulted from the de- give inevitably perplexity and cision and will rise to long in the confusion administration established system of taxation in this State. foregoing in its in the

Inasmuch as decisions the mean required to consider series of cited cases was ing- species” provision of Article effect of the “no one and pro Constitution, quoted X, 1, that and of the Section cases, question opinion in those that in two of vision its manifestly im not one of first in instant case was majority pression though con in even this State question a that nature. sidered it of be equal and uni- provisions “taxation shall be that throughout State, property, both real all form and personal, proportion taxed to its value and shall be in “No one and that be directed law” ascertained may species a tax be collected of from which higher species any of shall be taxed other than value,” part equal of Constitution of have been appeared, each since the formation of State and VIII, just language quoted, in Article Sec- the identical X, 1, 1863, and Article tion Constitution of 1872, 1, adopted present Constitution Section language and in the same Article and the same remains notwithstanding to that Article the amendment di- which authorized the and Section in November 1932 classes for of all into four vision taxable imposed a limita- of taxation and rates of establishment may be levied the rate or amount of the tax which tion on any discus- property. of each The absence class of that “No one sion of the higher taxed a tax collected be

from which shall value;” did any or im- remove not eliminate from the Constitution or contended, pair operation its or effect. It can not with convincing degree any any of sound or show reason judges persuasion Court who the several participated Charleston in the decisions in the cases Bridge County Company Kanawha and Southside v. Court, 658, 1002, 168 41 Va. 24 E. error dismissed W. S. 941, 1212, 704, Power 18 42 L. Ed. West Penn U. S. Ct. S. Company Equalization v. Board Review and Brooke Christopher County, 442, 862, 164 112 W. S. E. Va. 665, 813, James, Re: As E. Tax 122 Va. 12 S. 2d W. Against Savings and sessments Hancock Federal 410 426, 543, Association, 25 2d

Loan 125 S. E. W. Va. Against In Re: Tax Assessments Charleston Federal Savings Association, E. Loan Va. S. W. Savings 2d and Loan affirmed in Charleston Federal Alderson, Association v. S. 65 Ct. U. S. clause, species”

L. Ed. the “no one were unaware of ignored existence, or full and com- misunderstood its meaning plete effect, all or of those rendering sound, just jurists capable were less question correct decision involved than able distinguished judges majority constitute the who contrary, inescapable On this case. the conclusion judges gave who decided the above cited cases provisions studied consideration to 1, adopted and after mature deliberation the species” the “no one clause view did not render prop- invalid unconstitutional different valuations of erty of different classes if the assessment of taxes within of the each different classes and uniform. was pertinent particular It is make mention seven prior majority decisions of this which the the Court in required disapprove case at bar was in order reach the conclusion that the assessment of stock the the plaintiff at one hundred cent of and its true actual species”'clause value was violative of the “no cases, Constitution. In the first of these Charleston and Bridge Company Southside v. Kanawha Court, 658, 1002, 41 Va. 24 W. S. E. error 168 dismissed U. S. 704, 941, 1212, 18 S. 42 Ct. L. 1896, Ed. in the decided opinion by Judge in English, which was written de- the by cision was concurred in the other three members Judges Holt, this Court who Dent, were Brannon and al- though Judges separate Brannon Dent and filed con- curring opinions. case, In Christopher the second v. James, 665, 122 813, Va. 12 1940, W. E. 2d S. decided in opinion in by Judge which was written Maxwell, the by decision was concurred in the four other members Judges this Court Riley, Hatcher, who were Kenna case, Fox. In the third In Against Tax re: Assessments Savings Hancock Federal Association, and Loan 125 W.

411 1943, opinion in 543, 426, in E. decided 25 2d Va. S. con- Judge Fox, by the decision was was written this Court who by in four members curred two of remaining Judges two with the and Lovins were Kenna filing-separate Judges dissent- Riley and Rose members ing case, Tax Assess In Re: opinions. In the fourth Savings Against and Loan Federal ments Charleston 513, in 506, affirmed Association, E. 30 S. 2d W. Va. Savings Loan Association v. Federal Charleston 857, 624, de Alderson, 182, L. Ed. U. 65 S. Ct. S. by 1944, opinion in which was written cided in by Judge Fox, concurred decision was Judges Riley, were of this who four members case, Rose, Bankers Poca- In the fifth Kenna and Lovins. Company County Court McDowell hontas Coal 1950, County, decided in E. 2d 135 Va. 62 S. W. Lovins,- Judge by opinion in which written was by other four members decision concurred was Haymond Fox, Riley, Judges this Court who were case, In Re: Tax Assessments Given. sixth Against Virginia Bank West at Wheel National ing Company, Savings Loan and The Plan Morris decided 137 W. Va. E. 2d S. Given, Judge

opinion the de- in which was written the other four members of cision concurred Haymond Judges Lovins, Riley, this Court who were cases, finally, Browning. in the seventh these And Against Land The Southern In re: Tax Assessments 555, in 152, decided Company, E. 2d S. W. Va. Judge 1957, by Riley, opinion the was written in which by mem- the the other four was concurred in decision Given, Judges Haymond, who were bers of this Court cases, Browning are In those which and Ducker. seven forty judges disapproved, of fifteen the nine this now of 1863, the of State have Court since formation this for the that the held or entertained view classifications types different or valuation of taxable of classes provisions of were and the valid constitutional under 1, VIII, the of 1863 and Article Section of Constitution X, 1, present of Article Section Constitution equal throughout “taxation shall be and the uniform State, property, and personal, both real and be shall proportion taxed its value be as di- ascertained by species rected law. No one of from may higher a tax any be collected shall be taxed than provided species equal value,” other of the of particular valuation within each and class was uniform equal. Now the views of all and conclusions these for- present judges summarily mer and this Court are dis- approved rejected majority by and con- decision of a sisting judges, participated of three two of whom concurred in the decision in re: Tax Assess- the case of Against ments The Company, Southern Land 143 W. Va. 100 S. opinion E. 2d in which states that (the “Subj (limitations, governing j to the ect urisdiction Court,the question X, by before us is raised Virginia Constitution, West which reads: ‘Subject exceptions contained, in this section tax- ation equal shall be throughout State, and uniform property, and all personal, both real and shall taxed proportion to its value to be ascertained as directed law. No one from which a tax higher be collected shall be taxed * * equal requirement This equality uniformity taxation, Arti- as set forth in cle Virginia Constitution, Section 1 of the West means as to all classes of business or incomes uniformity there shall be I can taxation.” not concur approve majority the decision of the which ac- complishes surprising wholly and to me unwar- ranted result. history incorporation in the Constitution of species”

1863 of “no one reason against adoption support the and do not militate majority case. Prior conclusion reached in this State the Con- to and at time of formation Virginia IV, in Article Sections 22 stitution of provisions: contained these “Taxation shall throughout commonwealth, and uniform propor- taxed in be than shall other slaves man- in such ascertained tion to its which be shall “Every slave by And may prescribed law.” ner as age years as- shall be attained the twelve who has exceeding as- tax to and not with a sessed dollars. of three hundred on land of the value sessed taxation; subject age not be under shall Slaves exempted from tax- and other taxable majority by number of of a of the whole ation the vote general assembly.” of the elected to each house members limitation on the valuation of slaves constitutional This exemption other provision for from taxation of and the by majority the whole the vote of a taxable general elected to each of members house of number inadequate unequal representation assembly inhabitants the western counties in each house of the Virginia subjected sup- policies which them to the by bitter ported the eastern counties violent and caused people to the western counties dissatisfaction were fewer the eastern coun- where there slaves higher pay required other them to taxes ties types personal property paid upon than the taxes among inequalities These were their owners. slaves separation the main causes that led to the of the western of the commonwealth and re- and the eastern sections in the formation of this State 1863. See Vol. sulted Proceedings of the First Constitutional Debates Virginia, Ill, pages 5 and Convention of West and Vol. purpose proponents page main 55. The causing species” incorporation clause in “no one as disclosed the debates of Constitution convention, prevent constitutional limi- par- the value for the assessment of of a tation of taxes type or of all ticular exclusion types such as the limitation Virginia in the the valuation slaves Constitution undying provoked opposition. their bitter and had opinion of the Convention were of members Some species” “no one clause did not affect that the the mean- ing “equal effect of the and uniform” clause but provision. See Vol. repetition

amounted to mere Ill, Proceedings Debates and the First Constitutional Brown, Virginia, Convention of Mr. of West remarks page Stuart, Mr. page of Mr. remarks remarks Paxton, Smith, pages page 56 Mr. remarks of Sinsel, page remarks of Mr. and remarks of Mr. Irvine, pages 64 and 74. It is clear that it not the adoption intention of those who voted for the of the “no species” it instrument clause that would ever be the reducing or afford means of the value of all taxable property every naturally type different or class brought by systematic plan” lowest valuation about “a forty property per specified to at cent assess other percentage value, prohibit- of its true and actual and of ing property assessment other at classes differ- provided ent valuations in valuation each class is Precisely result, however, and uniform. has accomplished by majority been the decision of the in this case. species”

If the “no one clause is now to be used to re- property recognized duce the valuation of all to the level systematic plan” property “a specified to assess at a percentage of its true and actual value to the exclusion of different valuations of different property classes of equal and class, which, which are uniform within each majority decision, I understand the is the result requires, plaintiff the value which stock of the reduced, forty per should be to cent of its true and twenty per actual but instead to cent of its true and “systematic plan” actual value to conform to the fol- lowed County assessor of Kanawha who has actu- ally machinery equipment assessed at a valuation upon twenty per original based cent of their cost. And principle necessarily apply this must “equal under the and uniform” clause property valuation of every in county of State. my opinion present inevitably decision will re- uncertainty

sult confusion and in the valuation property property of utilities operate own public county service more than one State. If corporation operates several and in in Kanawha property the valuation of its counties this State “syste- county in that must be reduced to conform to the plan” forty its matic cent of to assess at subjected un- true and actual value or it will be an constitutional discrimination if its assessed percentage above that true and actual value. If its county systematic in some other where “a plan” sixty per assess cent of its true actual value exists its must be assessed at subjected percentage and it will an be to unconstitutional county any in discrimination that if it is assessed at greater percentage of its true and actual But if value. County its Kanawha is and must be asessed forty per at cent of true its its and actual value and county “systematic in another the to conform to plan” sixty per is and must be assessed cent of true and actual the taxation of its which “equal equal the and uniform” clause and must be throughout equal uniform the be uni- State will not and provision and under that be form will invalid because express provision, that clear violation of and for mani- festly be an assessment can not constitutional and valid species” one clause it under the “no if is violative of “equal and uniform” clause of the same Article and fact, of the In under decision Constitution. Section majority, any utility in several “equal State, comply of this to with counties requires which uniform” clause taxation to be uniform, any county “throughout but State,” be reduced in valuation must lowest valua- in Kanawha which to ma- tion of as twenty chinery equipment true cent of their percentage value based that of their and actual on original cost. pointed out, present decision, in- heretofore

As harmonizing “equal provision and uniform” stead species” provision in Article the “no one Section apparently Constitution, has rendered them apparent repugnant an irrecon- to each other and created accomplishing un- cilable conflict between them. majority necessary result, dis- unfortunate has regarded elementary an canon of constitutional con- requires apparent struction if there is an provisions repugnancy between different constitutional duty possible. it harmonize them if is the court to Jur., Law, In 11 Am. the text Constitutional Section construing “In a constitu- contains these statements: provision, duty re- it is the of the court to have tional necessary, instrument, course to the whole if to ascertain meaning provision, particular the true intent and apparent repugnancy and if there is an between different provisions, possible. the court should harmonize them if require rules of construction constitutional law construed, possible, two sections be so if not to repugnancy, stand, create a but that be allowed both given C.J.S., and that effect to each.” In Con- Law, in these stitutional rule is discussed general ascertaining pur- terms: “In both the intent and pose, meaning, part as well as the of a or a constitution thereof, pos- should construed as a whole. As far as sible, each should be as to construed so harmon- giving others, ize with all the with a view to effect every provision each and far so as it shall be con- sistent with a construction the instrument as a whole.” Harden, In 715, State v. Va. 58 E. Court S. this W. point syllabus ascertaining held in the 3 that “In the people adopting intention of the in a constitution all parts considered, every of the constitution must ar- be ticle, section, clause, phrase effect, and word allowed some parts, clauses, phrases harmonized, and all and if words possible. part ignored, disregarded, No in it word can be meaningless purpose effect, treated as or denied and un- less there be repug- irreconcilable contradiction and nancy.” Berry Fox, In 114 W. Va. 172 S. E. quoting Cooley’s from Limitations, Constitutional 8th Edition, 1, page Vol. this Court said that an amend ment to the provisions must, constitution and all its other possible, if be harmonized. See also Flesher v. Board of Department Virginia Affairs, Veterans’ Review, West E. 2d 890. 138 W. 77 S. Va. present de- that, the emphasized until be

It should consistently cision, have prior the decisions of this and binding authority followed to be been considered be prior are to decisions found adhered to unless such expressly By dis- plainly utterly unsound. erroneous or cited approving prior this Court the seven decisions of dissenting opinion, the ma- and referred earlier this jority salutary departed estab- from that well has adopting set principle. the reasons lished Instead of by those Court in forth and conclusions reached this present decisions, majority de- sustain its seeks to citing by relying upon decisions cision numerous jurisdictions disregard courts rule that in other only persuasive but such decisions should accorded ignore controlling unwilling to force and effect. I am apply the de- decisions of this Court and instead to jurisdictions contrary cisions courts of other disposition case consideration Court. my present requiring judgment, decision

types regardless natural diversities them, placed single, and all between in a universal percentage given inclusive class and to be the same taxes, accom- for assessment of ad valorem plishes amazing and heretofore unheard of result of completely abolishing any permanently classification separate different kinds of into and dis- categories assessing purpose tinct valorem ad against inherently types taxes different State; accomplished by a bare this result judges majority consisting Court in the of three of this face of a well considered heretofore unbroken line of opposite cases and en- in which this Court reached an decision, tirely present different Under the conclusion. money, notes, indebtedness, wells, bills and oil evidence of stock, live- equipment, shares systems and railroad mines, house- merchandise, coal machinery, stock, farm 418 furniture, jewelry, steamboats,

hold automobiles, race- horses, kinds, poodle dog pets real estate and even given percentage must be the same not of value and can placed separate be classes, despite or distinct natural them, equally differences between or valued and uniformly any within the class in which some or foregoing belong directly properly items and for the they assessment of the ad valorem taxes to which are subject under the law of this State. I can not do and previously subscribe to such of, unheard chaotic utterly impractical system innovation taxation in this State. previously present

As logical- indicated the decision is ly legally inconsistent and unsound. The assessed valu- ations in the Bridge cases Charleston and Southside Company Court, 658, v. County Kanawha 41 24 W. Va. 1002, E.S. 704, 941, error dismissed 168 U. S. 18 Ct. S. 42 L. 1212, Ed. Against In Re: Tax Assessments Han cock Savings Association, Federal and Loan 125 426, Va. 543, W. 25 S. E. 2d In Re: Tax Assessments Against Savings Charleston Federal and Loan Associa tion, 506, 126 513, W. Va. 30 S. E. 2d affirmed Charleston Savings Federal Alderson, and Loan Association 182, U. S. Re: S. Ct. 89 L. Ed. and In Na Virginia, Bank tional Va. West W. S. E. constitutional, 2d can not be valid as this Court cases, time held them be those and at same as violative of invalid and unconstitutional the “no one they species” provision must as applied be under that as valuation plaintiff and, by the stock of in this case the same norm, the valuation that stock can not valid and constitutional, cases, as it is the above under cited be- uniformity of its within that class of cause time same be invalid unconstitutional under species” provision majority applied “no one its decision of the case. In brief instant an assessed property for the valorem valuation of collection ad “equal taxes can not be valid and under the constitutional applied provision, heretofore and uniform” Court, unconstitu- invalid and and at the same time be species” provision of Article tional under the “no one applied as now of the Constitution of this State majority this case. decision of cited For the stated and under authorities reasons quoted from in I adhere to this dissent would former decisions of Court and affirm action assessing plaintiff circuit court in the stock one hundred cent of its true and actual value $6,000,000.00.

I Judge am authorized to state that BERRY concurs expressed dissenting opinion. views in this ex rel. Delores Jean Harmon

State et al. George Utterback, (No. 11032) May 1959. April 1959. Decided Submitted notes cent of value; the assets mately seventy per the face cent eighty-eight eighty-five companies from loan of small by the the contention face As to cent of their value.

Notes

at 100 accounts at notes cent, way per you at and the deter- receivable about they supported, trust, are deed of is how mine Question by security County forth.” so Commis- Slack, “Mr. are all banks in Kanawha sioner: according using you to this same rule are assessed on Q. Valley Bank? A. On book value? The Kanawha Yes. they I I know are. have Mr. A. So far as Gaten’s word myself I they per- have not looked at it have been. sonally they advises me are but he assessed at book Q. you percentage know what Do value. true and Frankly, at? A. I livestock assessed actual value don’t. Q. Q. very very A. It is low. Then as I Is it low? under- per stand, you have used less than 100 cent of true and Yes, property. value in other classes A. in the actual per cent. inventories we assess inventories at 50 case machinery equipment per at 20 We assess cent of using original find that cost. We this method we figure up nearer the with same that the Tax Com- come arriving pur- his values State aid uses missioner for Q. estate, percentage poses. And real what of the true inequal- course, gross and actual value? A. Of we have according ity there, Tax our to the State Commissioner something per like cent. 9 to 130 real runs from estate placing I As far as know we are real estate on per the Tax books at not than 40 cent of Commis- less Q. appraisal, qualify in order to State aid. sioner’s you per consider not less than 40 cent of true Would cent value? A. No. State and actual

accounts notes eighty per value, five cent of their face this Court found types these of various of differences valuations property did not an discrim- constitute unconstitutional prejudice complaining taxpayer. ination to the of the Against In Re: Tax See also Assessments The Southern Company, Land E. 2d 555. Va. 100 S. Hav- W. ing general existing any failed to establish a standard of systematic forty per at of cent assessment true actual its which to determine degree against plain- or extent discrimination tiff in the bank at one hundred assessment of its stock per value, plaintiff not cent of and actual is its true entitled to a of its reduction in assessment stock cent, per percentage from one hundred at which mythical, admittedly assessed, to other bank stock is imaginary forty per fancied or cent of its standard of true and actual value. hundred at one as all bank assessed Inasmuch stock is per value and as its assess- true and actual cent its percentage value is discrimina- at that of its ment among tory equal but and uniform members owners, ad- should have class of and held hered to and followed its former decisions court on as fixed the circuit valid the assessment per and actual cent of the true of one hundred basis $6,000,000.00. value of the stock of the stock of the invalidating the assessment imaginary standard an to conform to plaintiff failure its forty cent of property at of valuation erroneously, and, ignored refused I think this Court recognize validity of prior which decisions follow equal uniform within are which assessments though other and property even type or class same property are not taxed types or classes different partic- within the provided taxation valuation same Until the decision equal and uniform. ular class Court, under Article this case this validity of State, upheld the has Constitution particular property in class taxation

Case Details

Case Name: Re: The Assessment of Shares of Stock of the Kanawna Valley Bank

Court Name: West Virginia Supreme Court

Date Published: Apr 28, 1959

Citation: 109 S.E.2d 649

Docket Number: 10952

Court Abbreviation: W. Va.