91 W. Va. 423 | W. Va. | 1922
■This proceeding by mandamus, at the instance of the State Tax Commissioner, against the assessor of Payette County,
The statute involved requires valuation by the assessor of all real and personal property in his county, for purposes of taxation, at its true and actual value, determinable by the price for which it would sell upon usual terms of sale, and not the price it would bring at forced sale. It also vests power and authority in the State Tax Commissioner to order a reassessment, in case of neglect, failure or refusal of any assessor to make such valuations, and to appoint one or more special assessors to make such reassessment. In such case, the statute confers upon the special asessors all the power and authority now vested by law in assessors and makes their assessment the basis for action by the board of review and equalization and the levying bodies, subject to revision by appeal as provided in other sections of said chapter.
In the return to the alternative writ, its allegations of failure and refusal on the part of the respondent to assess the real estate in his county, agreeably to the requirements of law are denied, but the denial is accompanied by an admission that the valuations of real estate in said county for 1922 are the same as they were for the year 1921, except in those instances in which the lands have been enhanced in value by improvements made thereon since the assessments for the year 1921. Non-compliance with the orders and directions of the State Tax Commissioner, as to the basis of valuation, is admitted, and it is also admitted that the respondent refused to deliver to the special assessor the land books, blotters and other books and papers necessary to the work of reassessment.
Against the validity of the statute, several provisions of the State Constitution are invoked; namely, Secs. 1 and 2 of Art. IX, Sec. 6 of Art. IV and Art. V. In addition thereto, the Fifth and Fourteenth Amendments of the Constitution of the United States are relied upon. These constitutional guaranties and limitations are appealed to only in respect of the
Secs. 1 and 2 of Art. IS of the State Constitution do no more than provide for the election of one and not more than two assessors in each county and the appointment of .one or more assistant assessors with the advice and consent of the county court. Not a word is found in them respecting powers and duties of the assessor. Sec. 6 of Art. IY merely provides for removal of officers for certain specified causes, in such manner as may be “prescribed by general laws, and for their continuance in their respective offices until their successors are elected or appointed and qualified, unless so removed.
It is extremely doubtful whether the exclusive right and power claimed could arise by implication, from the mere
The conclusion here foreshadowed is sustained by the rule of contemporaneous and practical construction by the Legislature. By an act passed December 27, 1873, almost contemporaneously with the beginning of government under the Constitution of 1872, the assessment' of all of the real estate in every assessment district in the State was placed in the hands of commissioners appointed by the State Auditor, on the recommendations of the county courts. Acts 1872-3, Ch. 220. A reassessment of real estate was provided for, in like manner, by Ch. 32 of the Acts of 1882. A third reassessment by commissioners appointed by the Board of Public Works was provided for by Ch. 36 of the Acts 1891, and a fourth by such commissioners, by Ch. 21 of the Acts of 1899. Not until January 1, 1909, more than 35 years after the adoption of the present Constitution, was any assessor in the State allowed to value land for the purposes of taxation, or to make up the land books. Such valuation was first authorized by Ch. 4 Acts, 1904, to take effect January 1, 1909. The valuations were made by commissioners, under special acts of the Legislature, and the land books were made up by the clerks of the county courts, under provisions of general law.
Inequality in the valuations made under the Act of 1872-3, with reference to counties, due to adoption of different bases, having been discovered, the Act of 1882 made the Board of Public Works a board of equalization, with power to raise or lower the average valuation in any county in which they
Notwithstanding the constitutional provisions relied upon by the respondent and the requirement of uniformity by Sec. 1 of Art. X, as to real and personal property, the Legislature withheld from assessors the assessment of real estate, for a period of more than 35 years, commencing with the adoption of the Constitution, and dealt with the subject in such manner as to it seemed necessary to obtain proper valuations, to the end that the constitutional mandate requiring taxation to be equal and uniform should be complied with as nearly as possible. In addition to this long period of legislative construction acquiesced in generally by the assessors as well as the land owners, there is a judicial affirmance of its correctness in Clark v. County Court, 55 W. Va. 278. Mercer was one of the counties in which the reassessment under the act of 1899 was avoided. By way of pretended compliance with the requirements of the act, a commissioner made up a book in which he merely copied the valuations of the preceding year. To these valuations, the board of equalization added 25%, for the purposes of taxation for the year 1900. Relief from this addition, applied for in the County Court, on the ground that it was illegal and void, was denied. On an appeal to the Circuit Court, it was allowed and this court reversed the judgment of the Circuit Court. Obviously, that decision is directly in point and determines the question now under consideration, adversely to the contentions of the respondent. Although the opinion does not proceed upon the theory of validity of the addition made by the board of equalization, it necessarily
The legislative purpose in the enactment of the statutory provision in question is obvious. It was prevention of the inequality in assessments, which was formerly corrected by the state board of equalization, after completion of the assessments in all of the counties. To permit land to be valued at one-half of its actual value in some counties and its full value in others would make property owners contribute unequally to the burdens of state government, in violation of the mandate of Sec. 1 of Art. X of the Constitution. In providing a state board of equalization under the old system of decennial reassessments, the Legislature endeavored to comply with that mandate, for the inequalities were flagrant, glaring and destructive of the private constitutional rights of tax-payers. Now that the assessments of real estate are made annually and completed barely in time for the levying of the taxes each year, the former method of equalization is either impracticable or inexpedient, wherefore the Legislature has merely devised and ordained, by this provision, a similar method for accomplishment of the same purpose. It has vested a directing and supervising power in a state official of wide, thorough and special experience in all matters of taxation, whether state or local in their nature. The Legislative power over the subject cannot be denied merely because it has invoked a preventive, instead of what is substantially a corrective, method, nor because it exerts the power through one man instead of a commission or tribunal composed of several, nor because that man is a permanent
Although there may be in some of our decisions language
That an assessor is not a judicial officer, within the meaning of the Constitution is clear. He is not mentioned in Art. VIII, dealing with and defining the judicial department. The office is provided for in Art: IX, creating local executive and administrative officers, and not a word in that article signifies intent to vest in it any judicial function or power. ' It is no doubt within the legislative power to make the matter of taxability and valuation subjects of judicial cognizence, but it need not do so at the inception of the procedure for taxation. The subjects are not inherently judicial in the sense that all preliminary steps involve the performance of judicial functions. Award of a judicial inquiry as to the validity of an assessment, on either ground, after it has been completed or even later satisfies the requirement of due process of law. Webb v. Ritter, 60 W. Va. 193, 230; State v. Harman, 57 W. Va. 447; State v. Jackson, 59 W. Va. 558; State v. Swann, 46 W. Va. 128; Wiant v. Hays, 38 W. Va. 681; King v. Mullen, 171 U. S. 404. Whether it is wise or expedient to postpone the inquiry until that stage of the proceeding is a question lying exclusively within the province of the Legislature, in the absence of a constitutional guaranty or limitation restricting its powers. No such guaranty or limitation is found in the Constitution, nor is there a suggestion of legislative intent,’ in any of our statutes, to impart any
Prom these conclusions, it necessarily follows, that the federal and state guaranties of due process of law are not violated by the procedure authorized by this statute. Nor does it abridge or deny any constitutional or statutory right of the respondent.
If, as the return assumes, an assessor proceeded against in the manner prescribed by the statute, may successfully resist the State Tax Commissioner’s interference, by refutation of the charges of neglect, failure and refusal to perform his duty, the effort to do so is futile in this case, by reason of omissions disclosed and admissions made in the return filed. It makes no claim of assessment in Payette County, on the basis of values in other counties. We judicially know the real estate of that county is. of the same general character and has the same elements of value as that of many other counties. The writ charges refusal of the respondent to cooperate with the relator and the other assessors in an effort to effect equality and uniformity in valuation, by assessments at true and actual value, and the return admits refusal to comply with the directions of the relator, which presumptively are the same as those given to the assessors of the other 54 counties of the State and obeyed by them. This amounts virtually to an admission that the assessments in Payette were made by the respondent on a basis different from that adopted in the other counties. While claiming to have assessed the real estate according to true and actual value, the return virtually admits that no assessment of it
Being of the opinion that the statute is valid and that the respondent’s return fails to show due performance of duty, the court, without deciding whether interference could be defeated by disclosure of full performance of duty by the respondent, awarded a peremptory writ, requiring him to deliver the books and papers of his office, to the special assessor, for use in the reassessment ordered.
Writ awarded.