City of Newport News v. Warwick County ( 1932 )

Epes, J.,

dissenting.

While I concur in the conclusion reached by the court that the land and buildings, the assessment of which for the year 1929 is here called in question, were taxable for that year, I do not concur in the views expressed by the court as to why this is true. . I am also not in accord with several of the other holdings of the court in this cause. I shall not undertake to point out all. the views of the court with which I do not concur, but feel that I should point out some of them.

My view is that the land and buildings, the assessment of which is here in question, were taxable because the city of Newport News was receiving a substantial “revenue or profit” from the use thereof to a material extent for purposes other than the rendering of service to the people within its corporate limits.

I do not construe “revenue or profit” as used in section 183 of the Constitution to mean net revenue or net profit. I think profit is there used in the sense that it is used in the expression rents and profits, or the expression mesne profit, and not in the sense that it is used when it is said that a business corporation made a net profit in a given year. If this be true, it is not necessary to inquire whether the city received a net revenue or a net profit from the operation of its water works system or not. However, did I deem it pertinent to inquire whether the city made a net profit from the operation of its water works system, I could not concur with the court in the use of the formula prescribed by it for determining net profits.

Section 183 of the Constitution, both as it read prior to the amendment of 1928 and as it now reads, is composed of (1) an introductory paragraph declaring that “the following property and no other shall be exempt from taxation” except as (unless) otherwise provided in the Constitution; (2) seven paragraphs lettered from (a) to (g), inclusive, enumerating the classes of property which shall be exempt from taxation, and (3) following these lettered paragraphs, certain other paragraphs in one of which appears the language which is quoted by the court in its opinion following the paragraph indicator (g). Neither before nor after the amendment of 1928 has the language quoted by the court as following the paragraph indicator (g) been any part of paragraph (g). I am of the opinion that this language both before ¿nd since the amendment of 1928, has been applicable to all the property mentioned in all the paragraphs lettered (a) to (g), inclusive.

Having reached the conclusion that the land and buildings here in question were taxable, I think that the petition for the correction of the assessment thereof was filed too late, and cannot now be corrected.

Three tracts of land are here involved. When the commissioner of the revenue came to assess these lands in 1929, in each case he valued the land without improvements at a specified sum, and the improvements thereon at a specified sum, and extended the total as the assessed value of the tract of land and improvements. In no case did he designate what he included as land or what he included as improvements. This petition was not filed until after the two years allowed by statute for filing a petition for the correction of an assessment of lands.

It is true that the commissioner has assessed these tracts of land and the improvement thereon, at substantially the same amount at which the Corporation Commission had theretofore assessed both the real and personal property of the water company whose property was acquired by the city. It may be that when he did this he over-valued the land and the improvements thereon, i. e., the real estate with which the city is assessed. But, if so, we have here merely an erroneous assessment, erroneous because of the over-valuation of the property with which the city is assessed. The commissioner has not assessed the city with any personal property. The fact that land properly assessable at $5,000 has been assessed at $6,000, because the commissioner found on it $1,000 of personal property which he erroneously assumed constituted a part of the improvements on the land, is not the assessment of the owner with real estate valued at $5,000 and personal property valued at $1,000. It is the erroneous assessment of the land at $6,000, when its correct assessed value is $5,000.

My conclusion, then, is that the judgment of the trial court should be affirmed without modification thereof.