City of Huntington v. Chesapeake & Potomac Tel. Co.

Decision Date24 November 1970
Docket NumberNo. 13000,13000
Citation177 S.E.2d 591,154 W.Va. 634
PartiesThe CITY OF HUNTINGTON, etc. v. The CHESAPEAKE AND POTOMAC TELEPHONE COMPANY of West Virginia, etc.
CourtWest Virginia Supreme Court

Syllabus by the Court

1. 'If there be any doubt as to the constitutionality of an act, that doubt should always be resolved in favor of the validity of the act.' Point 2 Syllabus, State v. Furr, 101 W.Va. 178 (132 S.E. 504).

2. 'In considering whether an act of the Legislature is violative of the constitutional requirement concerning its title, the language and title of the act will be construed in the most comprehensive sense favorable to its validity.' Point 2 Syllabus, State ex rel. Graney & Ford v. Sims, 144 W.Va. 72 (105 S.E.2d 886).

3. 'The 'object' of an act of the legislature, as that word is used in section 30, Article VI, Constitution, means the matter or thing forming the groundwork of the act. The act therefore may contain many parts germane to the title, but they must be such that when traced back will lead the mind to the object expressed in the title as their generic head.' Point 1 Syllabus, Moats v. Cook, 113 W.Va. 151 (167 S.E. 137).

4. 'When the principal object of an act of the legislature is expressed in the title, and the act embraces, along with such principal object other incidental or auxiliary objects germane to the principal object, the act is not repugnant to section 30, art. 6, of the constitution, and is valid as to such principal and auxiliary or incidental object.' Point 10 Syllabus, State v. Mines, 38 W.Va. 125 (18 S.E. 470).

5. 'If the title of an act is broad enough to give a fair and reasonable index to all the purposes of the act, it is not necessary to descent to particulars in the title.' Point 1 Syllabus, State ex rel. Hallanan v. Thompson, 80 W.Va. 698 (93 S.E. 810).

6. 'If the title of an act states its general theme or purpose and the substance is germane to the object expressed in the title, the title will be held sufficient.' Point 1 Syllabus, State ex rel. Graney & Ford v. Sims, 144 W.Va. 72 (105 S.E.2d 886).

7. The concluding sentence of Section 3(g), of Chapter 187, Acts of the Legislature, Regular Session, 1967, is germane to the principal object of that statute as stated in the title thereof, and, therefore, the statute is not in this respect violative of the provisions of Section 30 of Article VI of the Constitution of West Virginia.

Huddleston, Bolen, Beatty, Porter & Copen, Amos A. Bolen, Huntington, John J. Cowan, Ralph J. Bean, Jr., Charleston, Frank M. Steadman, Jr., Washington, D.C., for appellant.

E. Henry Broh, City Atty., Huntington, for appellee.

CALHOUN, Judge.

This case is before the Court upon an appeal from a final judgment of the Circuit Court of Cabell County entered on December 11, 1969, in a declaratory judgment action instituted by the City of Huntington, as plaintiff, against the Chesapeake and Potomac Telephone Company of West Virginia, as defendant, to determine whether Chapter 187, Acts of the Legislature, Regular Session, 1967, appearing as Article 12A of Chapter 11, Code, 1931, as amended, is in violation of certain provisions of the Constitution of West Virginia. Hereafter in this opinion reference will be made to pertinent provisions of the several sections of Article 12A as thus enacted in 1967.

After the case was appealed to this Court, the plaintiff was granted leave to move to affirm the judgment of the trial court pursuant to the provisions of Code, 1931, 58--5--25 and Rule IX of the Rules of this Court. In these circumstances, the case was submitted for decision upon the original record, upon typewritten briefs and upon oral argument of counsel.

The primary question presented for decision on this appeal is whether the trial court erred in granting a motion for summary judgment in favor of the plaintiff upon the ground that a provision of Section 3(g) is in violation of a provision of Article VI, Section 30 of the Constitution of West Virginia which is as follows: 'No act hereafter passed, shall embrace more than one object, and that shall be expressed in the title.' The pertinent facts of the case are undisputed. Questions presented for decision on this appeal are solely questions of law.

In 1935, the City of Huntington enacted an ordinance, known as the 'Public Utility Tax,' which imposed a tax upon the gross revenue of certain public utilities. The ordinance has not been repealed. The defendant paid the tax imposed by the ordinance in semi-annual payments from the date of its enactment until about March 1, 1969. At that time, the defendant refused to pay the tax for the period beginning July 1, 1968, and ending December 31, 1968. The defendant notified the officials of the City of Huntington that the collection of the tax by the City of Huntington 'was unlawful and void in view of the enactment of Chapter 187, of the Acts of the Fifty-Eighth Legislature of West Virginia, at its regular session, 1967.'

Chapter 187, Acts of the Legislature, Regular Session, 1967, provides for an annual tax on the incomes of certain carriers. The last sentence of Section 3(g) contains the following provision: 'No county, city, town, village or other political subdivision of the State shall levy a license, net income or any other kind of tax on the business taxed under this article.' The language quoted immediately above forms the basis of the defendant's refusal to pay the tax in question. Article 12A of Chapter 11, which was repealed in 1967, contained no similar prohibition.

Following the defendant's refusal to pay the tax imposed by the ordinance, the plaintiff instituted this action by which it prayed for a judgment declaring Chapter 187, Acts of the Legislature, Regular Session, 1967, to be invalid and unconstitutional.

The plaintiff contends that Section 3(g) of the statute is violative of Article 6, Section 30 of the Constitution of West Virginia, which has been previously quoted in this opinion, on the ground that the title to the act embraces 'more than one object by establishing a tax for the State of West Virginia and, at the same time, denying the political subdivisions of the State the right, not only to impose a similar tax, but denying said political sub-divisions the right to impose any kind of a tax upon the businesses taxed thereunder.' In addition, the plaintiff contends that the statute is violative of Article 3, Section 4 of the Constitution of West Virginia, for the reason that the statute purports to be effective retroactively, thereby impairing the obligations of contracts and other obligations for expenditure of funds based on the city's 1966--67 budget. A third contention asserted by the plaintiff is that the 1967 act in question is in violation of Article 6, Section 30 of the Constitution of West Virginia for the reason that it purports, by Section 4 thereof, to be effective as of January 1, 1967, prior to the time of its enactment, without a two-thirds affirmative vote of the members of both houses of the legislature.

The defendant filed in the trial court an answer to the complaint in which it admitted that an actual controversy existed between the parties but denied that the 1967 act is unconstitutional in any respect and denied that the defendant owed the plaintiff any taxes. In addition to the answer, the defendant filed a counterclaim against the plaintiff in the amount of $84,738.19, being the amount of taxes paid by the defendant, pursuant to the municipal ordinance, for the period from July 1, 1967, through June 30, 1968. The plaintiff replied to the counterclaim by asserting again the same grounds of unconstitutionality of the statute.

Each of the two parties to the declaratory judgment action filed in the trial court a motion for summary judgment. The Circuit Court of Cabell County entered an order by which it denied the defendant's motion for summary judgment and granted summary judgment in favor of the plaintiff. It is from this judgment order that the appeal to this Court was granted.

The title to Chapter 187, Acts of the Legislature, Regular Session, 1967, is as follows:

'AN ACT to repeal article twelve-a, chapter eleven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, and enact in lieu thereof a new article twelve-a of said chapter, relating to an annual tax on incomes of certain carriers.'

In its written opinion, which was made a part of the record by the judgment order entered on December 11, 1969, the circuit court held that the inclusion in Section 3(g) of the language prohibiting any political subdivision of the state from levying 'a license, net income or any other kind of tax on the business taxed' pursuant to the statute was not sufficiently embraced by the language of the title to the act and that, therefore, Section 3(g) was in violation of Section 30 of Article 6 of the Constitution of West Virginia. The trial court did not rule on either of the two questions raised by the plaintiff in relation to the alleged retroactive nature of the 1967 act in question, nor did it rule upon questions raised by the counterclaim asserted by the defendant.

In his written opinion, the trial judge questioned the constitutionality of Section 3(g) of the statute under Article 10, Section 9 of the Constitution of West Virginia, which provides that municipal taxes 'shall be uniform'. In the light of the question thus raised but not decided by the trial court, counsel for the plaintiff asserts in his brief in this Court that Section 3(g) of the statute prevents uniform taxation and provides for 'an arbitrary and capricious classification of business for purpose of taxation by the State and denial of taxation by political subdivisions of the State.'

As we have stated previously, the trial court predicated its judgment of unconstitutionality of Section 3(g) solely upon a provision of Article 6, Section 30 of the...

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