41 W. Va. 81 | W. Va. | 1895
A motion was instituted on 7th day of September, 1885, in the Circuit Court of Ohio county, where the seat of government then was, in the name of the state against the Baltimore & Ohio Railroad Company, to recover certain taxes for the years from 1873 to 1879, both inclusive, to be distributed to the county of Jefferson ; and, the court having sustained a motion to quash the notice and dismiss the motion, the state appeals.
The briefs of counsel are able and exhaustive, ami upon them an' elaborate discussion might bo made ; but, in view of firmer decisions of this Court, I regard this unnecessary. The controlling question is, can the state maintain any suit for these taxes, or must it confine itself to the means of collection pointed out by statute? The following opinion of Judge Paul in the Circuit Court will, I think, fairly present the legal questions involved:
“Section 67 of chapter 29 of the Code provides that taxes and levies charged against railroad companies, if not paid to the auditor within a time specified therein, shall be certified to the sheriffs of the different counties through which the i’oad passes, for collection, in the same manner as other taxes and levies are collected by them; that is to say, in the manner prescribed by chapter 30 of the Code, which never included a suit, action or motion. Under these circumstances, it seems to me that the decisions of the Supreme Court of Appeals of this State in Board of Education, etc. v. Old Dominion, etc., Manuf’g Co., 18 W. Va. 441, and Hinchman v. Morris, 29 W. Va. 673 (2 S. E. 863) are absolutely conclusive against the right of plaintiff'to institute any of the proceedings in question. In the former of these cases it was held: ‘The levying of a tax is a matter solely of statutory creation, and, if specific means for its collect
“(1) That since the Code of 1868 took effect the property of railroad companies in West Virginia has been assessed upon the plan provided in section 67 of chapter 29 of that Code—a plan differing widely from the methods upon which every other taxable subject has been assessed, and which depends upon the theory that a railroad is to be considered and treated as an entirety. And he mentions several points of difference between this method and the ordinary methods of assessing property. But, before considering these points of difference, with respect to the method itself, it may be observed : (a) That it did not originate with the legislature of West Virginia. In Norfolk & W. R. Co. v. Supervisors of Smith Co. 87 Va. 526 (12 S. E. 1009) it is said : ‘Prior to the adoption of the present constitution of Virginia, no authority was ever conferred by law, either constitutional or statutory, upon the several counties, to levy taxes upon the property of railroad companies within their limits. The uniform policy of the legislature has been to treat a railroad as an entirety, to be taxed as such, and has been opposed to fragmentary assessments and levies by the counties, respectively; and for the obvious reason that any such'mode of assessment and levy would be necessarily destructive of the cardinal principle of equality and uniformity of taxation prescribed by the constitution.’ The principle of equality and uniformity of taxation has always been retained in the constitution of this state. See Article X, s. 1. And (b) that this method never included the collection of taxes assessed against a railroad company, unless they were voluntarily paid by the company ; other
“(2) The record does not disclose the ground on which the action of this court in overruling defendant’s motion to remove these cases to the Circuit Court of the United State was based, or that of the latter court, in remanding them to this court. But I am unable to see how the ques
“(8) The defendant, by its acceptance of the acts of the general assembly of Virginia passed March 28th, 1837, and March 6th, 1847, may have agreed that its stock, property, and profits within that commonwealth ‘should be subject to general taxation in like manner and on the same footing with other similar companies within’ that state. But that agreement, it seems to me, should not be construed as giving the state a right of action against the defendant for taxes assessed thereunder, when it possessed no such right with respect to taxes assessed against ‘other similar companies.’
“(4) It is urged that these are proceedings by the state itself, and not by county officers—mere agents—as were the proceedings in the two West Virginia cases before cited; and counsel quotes from the opinion of Mr. Justice Strong in Savings Bank v. U. S., 19 Wall. 238, who, after stating that the reason of the common-law rule that where a statute creates a right, and provides a particular remedy for its enforcement, the remedy is generally exclusive ofall common law remedies, was that the statute, by providing a particular remedy, manifests an intention to prohibit other remedies, and that the rule therefore rested upon a presumed statutory prohibition, says : ‘But by the internal revenue law the United States are not prohibited from adopting any remedies for the recovery of a debt due to them which are not known to the laws of Pennsylvania. The prohibitions, if any, either express or implied-, contained in the enactment of 1866, are for others, not for the government. They may be obligatory upon tax collectors. They may prevent any suit at law by such officers or agents, but they are not rules for the conduct of the state. It is a familiar principle that the king is not bound by any act of parliament, unless Ire be named thereiiqby special and particular words’, etc. That decision, however, was based upon the theory that the tax sued for was a debt due the government. It therefore belongs to that class of decisions which the Supreme Court of Appeals of this state refused to follow, because they were against both reason and the
“(5) It is claimed that the statute (Code, c. 31, s. 1; Id. c. 45, s. 50; Id. 49, s. 6) gives a lien on all the real estate of a railroad company for state, county, school, and district taxes assessed thereon, but provided no remedy for its enforcement, and that in such a case equity will enforce the lien. It is believed, however, that neither the statute cited,
“(6) The provision inserted in section 67, chapter 29, that ‘the right of the state, or of any county, or district, or municipal corporation, to enforce, by suit or otherwise, the collection of taxes or levies, heretofore assessed, or the right to which has heretofore accrued, shall not in any manner be affected or impaired by anything in this chapter contained,’ is a mere saving clause, and can have no application to any case in which the right to collect taxes or levies by suit did not previously thereto exist.”
The counsel for the state rests its case on the first three sections of chapter 35 of the Code, providing that the auditor shall cause proceedings to be instituted “to enforce payment of money due the state,” and providing certain processes, and providing that “the action or motion at law may be against any person indebted or liable in any way whatever to the state.” The title of chapter 35 is, “Of the Recovery of Claims Due the State.” The briefs elaborately discuss the character of taxes; that is, whether they are debts, claims, or liabilities. For the state, it is conceded they are not debts, but are claims or liabilities, in the eye of said provisions of chapter 35. Concede this, and it still strikes me as not proving that a suit may be brought for taxes; for that chapter has not for its office to say just what claims or liabilities shall be the subject of suit, but supposing the existence of a claim or liability of a character bearing an action, it prescribes how and where the proceeding for its recovery shall take place. Its purpose is to designate in what court, and by what form of procedure, the state shall move, when it has a demand of a kind to warrant any legal procedure. When we have a given demand before us, wo look elsewhere to see if it may be made the subject of an action. Looking, then, over the field of our law, we find no law authorizing a suit for taxes until chapter 22, Acts 1887, which gives the state a suit in equity to enforce the lien of taxes on land, but we do find two decisions of this Court deciding in the clearest manner that taxes can not be made the subject of suit for their recovery,
A recent case in North Carolina [Commissioners v. Murphy, 107 N. C. 36 (12 S. E. 122)] holds that the mode of collection being given by statute, no suit lies. The case of Louisville Water Co. v. Com. (Ky.) (12 S. W. 300) decided in 1889, presents this view strongly. It has been held by this Court that a tax is not a “debt,” within the legal meaning of the term, and therefore assumpsit can not be maintained upon it, as is done in some states where it is regarded as an indebtedness. “It comes upon the citizen in in o Hum, and its payment rests upon the duty lie owes to the state in return for the protection extended by it to him. The exercise of the power of taxation is legislative in character, while the collection of taxes, when once authorized by the lawmaking power, is ministerial. The one is legislative, and the other is executive. Neither is a judicial act, and one department of the government should be careful not to encroach upon the domain of another. It is true, the judiciary may be called upon by the legislature to enforce the collection of taxes in a judicial way, but it has not done so in this State, save as to railroads, when suit has been authorized to recover them ; and this exceptional case inferentially says that this remedy can not be resorted to in other cases. The collection of taxes depends, and properly so, upon the remedies afforded by statute.” This is most pertinent and appropriate to the case at bar. We have seen that our Court of Appeals (Board of Education, etc. v. Old
The Court of Appeals of Kentucky, in the case referred to, adds, in relation to the subject of taxes: “Their speedy and prompt collection is necessary to the life of the state. The interest of the citizen demands that it should be done with as little expense as possible. If resort can be had to the courts, in the absence of statutory provision, then delay, expense, and abuse will certainly follow. But then it may be said that it is only in cases where there is no remedy, or it is ineffectual, that the right to sue for taxes should be implied. We are aware that it has been held by some courts, and said by some text writers, that if no specific remedy be given by statute, or only an imperfect or inadequate one, then it is but reasonable to infer that a remedy by suit was intended by the legislature. This Court has, however, never assented to such a rule. Public policy, in our opinion, forbids it. Its adoption would burden the courts with litigation, and be likely to lead to abuse of such a character as not only to unjustly harass the citizen", but injure the state greatly more than it would suffer by the loss of taxes from its non-adoption. It would tend to confuse the powers of the different departments of the government, and there would be no limit to its exercise. If one delinquent could be sued because he had made a fraudulent transfer of his property, or another for some other reason, upon the ground that there is no remedy, or adequate one, the state, in the end, would be the sufferer. Besides, it would violate a policy which has prevailed in this State from its earliest history. It is true, it has been said by this Court, in some cases, that wherever a legal liability exists the law raises a promise and assumpsit lies ; that if a right be created. and no remedy appointed, the usual remedy for that
It seems to be a general rule that, when a statute at the same time creates a liability and gives a remedy, that remedy is exclusive. End. Interp. St. § 465.
As mentioned above, the very fact that never, until 1887) did the legislature give a suit for taxes, is quite strong to show that no suit lies; and this is stronger when we reflect that Board of Education, etc. v. Old Dominion, etc. Manuf'g Co., was decided in 1881; and, though session after session of the legislature was held, no action was given, except in one instance, to enforce a lien on land— showing that it was not intended to grant it further. The lawmakers did not overlook the subject, for in 1887 they considered it.
Distress was the remedy in this state and had been in the old state, from its foundation. The legislature of the old state did not give the remedy by suit. Its courts did not recognize such suits. Strange, if it existed, that the long lapse of judicial history does not show it. The Virginia cases cited do not sustain it. Lipscomb v. Littlepage's Adm’r, 1 Hen. & M. 468, was a case where a party had promised the Sheriff to pay, if indulged. Mayo v.
The absence of remedies in the courts in the two states, through all their history, is easily explained. The remedies given by statute were better, more speedy, and efficacious. These were, sale of laud for its taxes, and distress of personalty, without exemption. Why fill the courts with suits, burden the state with endless delays of litigation and burden the citizen with costs? If a railroad company defaults in payment of taxes, every wheel upon its tracks may be stayed, every particle of its movable property be taken, and its power to earn revenue taken away. What more drastic remedy can the wit of man devise? It is urged that the statute commands the railroad to pay, and this begets an obligation, and therefore action lies. Grant there is obligation, and it can be enforced; but the same statute points out the means of enforcement, and excludes a suit.
An assignment of error alleges that it was error to dismiss the motion absolutely, and that a clause of “without prejudice” should have been inserted. This is not contended for in the brief, and seems to be waived. If the case made by the plaintiffs pleading show no cause of action, and the plaintiff do not or can not amend, the dismissal ought to be absolute. The suggestion in the petition would require a saving clause in every case, and would keep open litigation forever. The notice and motion showing no ground of action, it would not bar another suit, if there could be one, giving other facts making good cause of action. Where no cause of action is shown, it is improper to insert a saving clause, and would be ground of reversal because it takes from the party what he is entitled to—final
Judgment affirmed.
