Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1890-04-01
TUESDAY ............APRGL ], 1890.
The Examption Question.


We stated last week that we had written
70 friend in West Virglnia--a distin-
Cuished lawyer-to refer us ton case when
we supposed had been decided by the SUI
preme Court Of the United States some
years ago touching the exemption features
of the West Virginia Constitution. winch
features are almost identically the same as
the exemption features OF the Constitution
of Virginia. We have not heard from our
West Virginia friend; but Virginia law
yer. whose reputation is equal 10 that
of INV other in the Commonwealth, has
made for US some notes. which so COM
pletely describe in few words the condi-
tion Of the exemption question in Virginia
that we have taken the liberty To avail
ourselves of his memoranda, though these
were intended only for our own eyes and to
aid us in our investigation Of an interesting
question:
There are but two decisions of our Court
of Appeals $50 far as recall them directly
In point-to wit. williamson Us. Massey,
Auditor. 80 Graft. 237. and TO,cn Of DdnciIe
o. Shelton and others. 7G Va. 1925.
In the first of the cases Judge Moncure
did not sit. See 80 Graft, p. 237, foot-note;
The Court sitting in the case was composed
of four members. Judge Anderson. in his
opinion, contended for the broad PROPOSE:
ton that there was no limit TO the power OF
the Assembly to grant exemptions. In that
opinion Judge Christian concurIed. Judge
Staples disserted. aud Judge Burks In
brief statement (see it). while concurring
that the exemption might be granted ia
the particular case. and for the reasons ne
states. declined to express any opinion
whether or not the power OF exemption
under the Constitution is without limita-
ton, and extends to property generally
within the uncontrolled discretion OF the
Legislature Saying further, the Ques-
ton is q very grave one. and III the we"
/ take. need not be decided in the present
case" So in the second case torn Of DdncilIe
vs. Shelton and others. Judge Moncure was
absent (see 76 Virginia, page 3, after title
page, and the note: Judge Moncure did
not sit in any Of the cases reported IN this
volume. He died on the 2ith day of Au-
gust. A. ID. 1921 Nor did Judge Sta
tiles sit in this case, though his absence was
not noted by the reporter. i presume
the orler-book of the Court OF APP
peals will show the fact. There were but
three judges sitting in the case. Judge
Anderson in his opinion reiterated his
views expressed in the first case akA Judge
Burks "concurred III the res'sliS only. and
is therefore not committed to the PROPOSE
ton asserted by Judge Anderson that the
Legislature had unlimited power 10 ex-
empt. So that in both of these cases the
decision that the Legislature was without
restriction IN respect to exemption was the
decision of t,c0 judges only III court constl-
tutionally composed Of five judges.
We throw in here the remark that de-
cisions made under such circumstances
have of course no binding authority as pre-
cedents, and are open for determination
in future cases of tine like character.
We resume our quotations from the notes
of our lawyer-friend. He writes:
The West Virginia case you have in mind
must be Chesapeake and ohio Rdd,ody Com
pdny o.. Miller. auditor, decided 10y. the
West Virginia Court Of Appeals April %,
1882, and reported IN 10Th volume Of West
Virginia Reports. 400. 81 seq. The case IN
yolved the construction of section ] of
Article VIII. of the Constitution Of West
Virginia. which combines substantially
sections l and of Article Y. of the Consti-
tuition of Virginia. and the Court held that
the Legislature had no power TO grant ex-
emptions of property from taxation ex-
cept property used for the purposes men,
toned in the Constitutional VIII, for
educational. literary, &C., purposes. See
and compare the provisions in tho Constl-
buttons Of Virginia and West Virginia. The
opinion of the Court was delivered by
johnson (its president). and concurred in
by the other judges. II refers TO Judge
Anderson's opinion in Williamson Us.
Massey, criticises and disapproves it. The
case was carried by the railway company, on
writ of error TO the Supreme Court of the
United States, where the decree of the
West Virginia Court of Appeals was
affirmed. The case is reported in ia q. >.
Hep, 176 ct seq 1t is to be noted,
however, that the Supreme Court did not
base its decisions on the ground assumed
by the West Virginia Court of Appeals
TO wit. the unoonstihstionaiRy of the exemp-
ton granted to the railway company, but
on the ground that Gwen If the exemption
were VALID the exemption was o personal
privilege granted TO a former company.
which did not pass to the successor Of that
company under the laws of the State.