Douglas Co. v. Commonwealth , 97 Va. 397 ( 1899 )

Hakkisoh, J.,

delivered the opinion of the court.

This writ of error is to a judgment of the Circuit Court of Smyth county, affirming a judgment of the County Court of that county, overruling a motion of the plaintiff in error to correct an alleged erroneous assessment of land in the name of Mrs. Iff. D. Cruger’s estate.

It appears that George Douglas, of the State of New York, departed this life many years ago, intestate, the owner of a large body of mountain land lying in Rich Valley District of the county of Smyth. His heirs at law were George Douglas, William Douglas, Margaret Douglas, Harriet Douglas, and Elizabeth Douglas. After the death of her father, Margaret died, having devised her interest in this land to her four surviving brothers and sisters. Harriet married H. D. Oruger, and Elizabeth married James Monroe. In the year 1846 Monroe and wife instituted a chancery suit for the partition of these lands between the four surviving brothers and sisters. This partition was made, a decree entered confirming the same, and appointing a commissioner for the purpose, who executed deeds conveying to the parties their respective interests. Shortly after this partition, James Monroe and wife conveyed their interest to George W. Hopkins. This tract has no relation to this case, and need not be, further mentioned. The three remaining interests were charged on the land books as follows:

To George Douglas tract Ho. 1........6,054 acres.

To H. D. Cruger tract Hoc 3........6,134 acres.

To William Douglas tract Ho. 4........6,072 acres.

Since the partition,- these three tracts have been charged to the several parties to whom they were then allotted as separate and distinct parcels of land—-Tract Ho. 1, in the name of George Douglas, tract Ho. 4, in the name of William Douglas, although both these parties died in 1862. Tract Ho-. 3 stood charged in the name of H. D. Cruger until his death, in 1867, and after that time it was charged to Mrs. H. D. Cruger until her death, in 1881, when it appeared in the name of Mrs. H. D. Cruger’s estate.

In 1885 the owners of these lands, finding that some five thousand acres of the George Douglas tract belonged to adverse claimants, and, desiring to have the aggregate quantity of land charged to them reduced to the proper amount, arranged with the assessor to drop the “ Cruger ” tract, containing 6,134 acres, from the land books. In 1893 the Douglas heirs conveyed these three tracts of land to the “Douglas Company,” composed of the grantors in said deed. Ho change, however, was made on the land books, and the tax tickets continued to come out in the name of George Douglas and William Douglas, and were paid by the Douglas Company. In 1898 the Commissioner of the Revenue, finding the “ Cruger ” tract to be a, legitimate subject of taxation, dropped from the land books, reinstated the same, and assessed it for the years it had been omitted, at the value of contiguous lands similarly situated.

In Hovember, 1898, the plaintiff in error instituted this proceeding to correct, as alleged, the erroneous assessment of tract Mo. 3, containing 6,134 acres, charged to Mrs. TI. D. Oruger’s estate, claiming that the same had been properly dropped from the land books in 1885, and improperly replaced thereon in 1898, and assessed for the years during which it was omitted.

These are separate and distinct parcels of land—the George Douglas tract being separated by a distance of four or five miles from the Cruger tract—and have always been separately assessed in the names of the several owners who acquired the same under the partition proceedings in 1846. The commissioner is required by section 465 of the Code, as amended by act January 16, 1890, to enter each tract separately upon the land books. The necessity for such separate entry is apparent. Lands being of unequal value, no just or equal taxation could be attained otherwise. It follows that each separate tract of land must bear the burden of taxation upon it, and cannot be relieved from taxation because some other tract is improperly assessed. The party aggrieved must move to have the improper assessment corrected, and for this ample provision is made.

It was not pretended in 1885 that there was any error in the assessment of tract Mo. 3 to the estate of Mrs. IT. D. Oruger, but it was dropped from the tax books solely for the purpose, and as a means of correcting an alleged erroneous assessment of the George Douglas tract.

The action of the commissioner in assessing the Oruger tract of land is alone in controversy in this proceeding, and the validity of that assessment cannot be determined by inquiring whether another tract, separately entered for taxation, has been assessed at more than the acreage actually contained therein. Such a method of equalizing taxes is without warrant, and would be productive of irremediable confusion.

This “ Oruger ” tract of land having been' dropped from the tax books in violation of law was properly reinstated and assessed ■with taxes in 1898. The authority relied on for this act of the commissioner is section 479 of the Code, which is as follows:

“ When the commissioner ascertains that there is any patented land in his district which has not before been entered on his book, or after being entered, has, from any cause, been omitted for one or more years, he shall make an entry thereof, and of the name of the owner; and if there be no reassessment of the value thereof, he shall proceed to make such assessment to the best of his judgment by reference to the assessed value of contiguous lands similarly situated; and shall charge on the land which he so enters taxes at the rate imposed by law, for each year in which the land was not before entered in such book, from the year eighteen hundred and thirty-two inclusive, if the patent emanated before that time, and if it did not, then from the date of the patent, together with the lawful interest on. each year’s tax. Any commissioner failing to make such entry and assessment shall forfeit twenty dollars.”

It is uot denied that the commissioner’s action is authorized hy this section, hut it is contended that it violates the fourteenth amendment of the Constitution of the United States in so' far as it authorizes a commissioner of the revenue to1 assess and charge the valuation of land, for the reason that neither this section nor any other, gives to the land owner any remedy by which he can have this action of the commissioner reversed or reviewed. In support of this contention the cases of Violett v. City of Alexandria, 92 Va. 561; and Heth v. Radford, 96 Va. 272, are cited. These cases do not sustain the contention of plaintiff iñ error, and have no bearing upon the case at bar-Ample provision is made for the land owner to have the action of -the commissioner in a case like this reviewed, and reversed, if wrong. Secs. 567 and 568 of the Code furnish a complete-remedy. Section 567 provides that any person assessed with taxes, aggrieved by an entry in' either the land book or the personal property book may, within two years after the delivery of such book to the treasurer, apply for relief, &c. The remedy thus afforded has been adopted in the case at bar, and the presence of the plaintiff in error in court, contesting the propriety of the assessment in question, is a sufficient answer tO' the objection that the law provides the land owner with no opportunity to review or reverse the action of the commissioner in replacing omitted lands upon the tax books, and reassessing the same for taxation.

It is further contended that the commissioner erred in not entering the land in question in the name of the plaintiff in error, the true owner, as required by section 479. The proof shows that the commissioner was unable, from the records of the county in which the land was situated, to determine the present owner. The Cruger tract, at the time it was dropped from the land books, was assessed in the name of Mrs. II. D. Oruger’s estate as provided by section 492 of the Code, and there being nothing to show that the title had changed hands, it was properly reinstated in the name of that estate. Conceding, however, that the land should have been assessed in the name of the plaintiff in error, the failure to so enter it does not affect the liability of the land for the taxes due upon it. At most, the plaintiff in error could only ask that the error complained of be corrected by the substitution of the proper name.

The third and last assignment of error has been fully covered in considering the first, and need not be further discussed..

There is no error in the judgment complained of, and it must be affirmed.

Affirmed.