City of Moundsville v. Steele

• Decision Date: 26 November 1968
• Docket Number: No. 12734,12734
• Court: West Virginia Supreme Court
• Parties: CITY OF MOUNDSVILLE, a Municipal Body, etc. v. Carr STEELE.

Page 430

164 S.E.2d 430

152 W.Va. 465

CITY OF MOUNDSVILLE, a Municipal Body, etc. v. Carr STEELE.

No. 12734.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 10, 1968.

Decided Nov. 26, 1968.

Syllabus by the Court

A city ordinance providing for a charge or assessment of twenty-five cents per front foot for special street improvement, maintenance and services imposed upon the users of the services, who were defined in the ordinance to be the occupiers of improved premises abutting the streets and avenues in the city, is a reasonable classification and charge for such services in conformity with the provisions of Code, 8--4--20, as amended, and Code, 8A--5--8, as amended, and does not violate the uniformity provisions of Article X, Section 9 of the Constitution of West Virginia which relates only to taxes on persons or property, usually called ad valorem or general taxes.

Gall & Madden, John T. Madden, G. Charles Hughes, Moundsville, for appellant.

Goodwin, Mead & Goodwin, Charles P. Mead, Wheeling, for appellee.

BERRY, President:

This is an appeal by the City of Moundsville from a final judgment of the Circuit Court of Marshall County dated January 18, 1968, affirming a judgment of the Common Pleas Court of Marshall County in favor of the defendant dated July 10, 1967 which held that an ordinance of the City of Moundsville setting up fees and charges to provide additional revenue for continuous maintenance and improvements of street service within said City was unconstitutional. The case was submitted for decision of this Court upon arguments and briefs at the September Regular Term, 1968.

There is no dispute with regard to the facts involved in this case. A stipulation was entered into by the parties and submitted to the Court on the following facts:

'1. The City of Moundsville is a municipal corporation chartered under the provisions of Chapter Fifty-Six (56) Acts of the Legislature 1937 commonly known as and referred to as 'Municipal Home Rule Law.'

'2. On October 18, 1959, and annually thereafter, the City of Moundsville has enacted an ordinance, commonly referred to as 'Front Foot Tax,' providing for collection of a fee for continuance, maintenance and improvement of the essential service of street maintenance and services within the City of Moundsville, levied against the users of said services, defined in said ordinance to be the occupiers of improved property abutting the streets and avenues within said city. The defendant, Carr Steele, has occupied since the 1st day of July, 1959, improved property abutting 61 feet on Tomlinson Avenue in Moundsville, more commonly known as 204-Tomlinson Avenue. Said ordinance and reenactments provide for assessment of 25 cents per front foot for each fiscal year.

'3. The parties agree that the original enactment of the ordinance and subsequent re-enactments were in accordance with the Charter of the City of Moundsville and the laws of the State of West Virginia as set forth in Chapter 8A of the Official Code, State of West Virginia and further stipulate that the copies of the ordinances as reflected in the attached certificates of publication labeled Exhibits A, B, C, D and E are exact copies of the ordinances adopted by the Council of the City of Moundsville as aforesaid.

'4. The parties further stipulate that the City of Moundsville, a municipal corporation in its enforcement of the Front Foot Tax Ordinance, identified in paragraph 2 of this Stipulation, assessed an assessment of 25c per front foot against the occupiers of improved property abutting on the streets and avenues of the City and that if made no front foot assessment under the provisions of said Ordinance against the owner of unimproved property abutting on the streets and avenues of the City.'

The pertinent parts of the Ordinance in question are as follows:

'* * * Be it ordained by the Council of the City of Moundsville, West Virginia:

'Section 1. That in the judgment of the Council of the City of Moundsville, the public health, safety, welfare and well-being of the citizens thereof demands the continuance, maintenance, and improvement of the essential service of street maintenance and services within the City of Moundsville, and the public revenue of the City of Moundsville is not sufficient, having regard to other necessary costs and expenses, for the purpose of providing street maintenance and services within the said city; and therefore it appears under the provisions of Chapter 8A, Article 5, Section 8, of Michie's West Virginia Code of 1955 (Chapter 56, Acts of Legislature of 1937) that in order to provide additional revenues for the continuance, maintenance and improvement of the street maintenance and services within the City of Moundsville it is necessary that there be imposed upon the users of such services such rates, fees and rentals as are required to pay a part of the cost of the special service of street maintenance and services. The proceeds and revenue from such rates, fees and rentals from the users of such special service shall be used and expended in the continuance, maintenance and improvement of the special service of street maintenance and service and the facilities required therefore within the City of Moundsville and for no other purpose or purposes.

'Section 2. The special service of street maintenance and services shall be rendered on all public street and avenues of the City of Moundsville.

'3. The users of said special services are declared to be the occupiers of the premises abutting the streets and avenues, of the City of Moundsville, whether as proprietors or tenants.

'Section 4. There shall be, and is hereby imposed, levied and assessed for the fiscal year July 1, 1959 to June 30, 1960, upon each user of said special service as defined in Section 3, Twenty-Five (25) Cents, per front foot of improved property abutting on the street and avenues of the City of Moundsville.

'Section 5. The collector and treasurer of said City, hereinafter sometimes called 'Collector' shall forthwith ascertain said users and their respective number of feet of improved premises abutting said streets, and their respective assessments at the rate mentioned in Section 4; provided that in cases of improvements occupied by more than one tenant, or by the proprietor and one or more tenants, the assessment attributable to the premises shall be apportioned among the occupiers according to the rental value of the portion occupied by each. * * *'.

The sole issue involved in this case is whether the Ordinance in question which excluded unimproved property from the imposition of the charge or fee was legal and constitutional. The parties agreed that the Ordinance was in accordance with the Charter of the City of Moundsville, and that the City had the authority to charge such fee for services as defined in the Ordinance. The question is over the classifications to which the fee is applied.

The authority for such Ordinance is found in the Municipal Home Rule Law in West Virginia Code 8A--5--8, as amended, in the following language:

'A city shall have power to charge and collect reasonable rates, fees and charges for municipal services other than those rendered as fire and police protection, subject to the provisions of chapter twenty-four ( § 24--1--1 et seq.) of the official Code of West Virginia, as amended. In the case of police power services, which may be mandatory upon those served, the charge shall be based upon and shall not substantially exceed the...