Hare v. City of Wheeling, 15635
| Decision Date | 19 October 1982 |
| Docket Number | No. 15635,15635 |
| Citation | 298 S.E.2d 820,171 W.Va. 284 |
| Court | West Virginia Supreme Court |
| Parties | Frank T. HARE, Robert A. Hare, and William Hare Sons Co., a Corporation, on behalf of themselves and all other persons similarly situated v. The CITY OF WHEELING, A Municipal Corporation. |
Syllabus by the Court
Where certain ordinances of the City of Wheeling impose upon owners of property a police service charge based upon the value of property, as determined from the land books and personal property books of the Ohio County Assessor, such ordinances impose, in fact, an ad valorem tax upon property, and where, without regard to the police service charge, property within the City of Wheeling is taxed to the maximum amount permitted under W.Va.Const., art. X, § 1, known as the "Tax Limitation Amendment," and W.Va.Code, 11-8-6d [1949], such ordinances violate that constitutional provision.
Bailey, Byrum & Vieweg, John Preston Bailey and George G. Bailey, Wheeling, for appellants.
John Marshall, III, Wheeling, for appellee.
Higinbotham & Higinbotham and George R. Higinbotham, Fairmont, for amicus curiae, The City of Fairmont.
In this class action this Court is asked to review the constitutional validity of a police service charge promulgated by the City of Wheeling, West Virginia.
This action is before this Court upon the petition of the appellants, Frank T. Hare, Robert A. Hare and William Hare Sons Co., et al., for an appeal from the final order of the Circuit Court of Ohio County, West Virginia. Pursuant to that order, entered on March 29, 1982, the circuit court refused to enjoin the City of Wheeling from taking action with respect to the enforcement and collection of a police service charge promulgated by that city.
By order entered on July 7, 1982, this Court granted the appeal in this action. By order entered on August 5, 1982, this Court, pursuant to W.Va.Code, 58-5-25 [1931], granted the appellants' motion for leave to move to reverse.
This action was argued before this Court on September 29, 1982. By order entered on September 30, 1982, this Court scheduled this action for reargument. By that order the parties were directed to file supplemental briefs. A copy of that order was transmitted to the West Virginia Municipal League and the city attorneys for Charleston, Huntington, Beckley and Buckhannon inviting them to address the issues relevant to this action. No reply to that invitation was received by this Court other than from the City of Beckley which city informed this Court that its ordinances were dissimilar to those involved in this action. On October 8, 1982, the City of Fairmont filed an amicus curiae brief. By letter dated October 6, 1982, the Attorney General of West Virginia indicated that he did not wish to participate in the reargument of this action.
On October 12, 1982, this action was reargued before this Court. This Court has before it the petition for appeal, the motion to reverse, all matters of record and the briefs and argument of counsel.
On April 7, 1981, the City of Wheeling promulgated Ordinance No. 7225 which established an annual police service charge to be imposed upon the owners of buildings and tangible personal property. That ordinance provided, in part, as follows:
An annual charge against the owner or owners of all residental [sic], commercial, industrial or other building or buildings, of every kind and nature and regardless of the type or types of construction, within the City, and against the owner or owners of all tangible personal property situated within the City, of every kind and nature, in the amount of twenty-five-hundredths of one percent of the value of such residential, commercial, industrial or other building or buildings and of such tangible personal property, such value being the value of such property as determined by Council as set forth under Sections 791.02 and 791.03, shall be collected by the Treasurer to partially defray the expense of continuing, maintaining and improving police protection for such residential, commercial, industrial or other building or buildings and such tangible personal property. In no event shall the amount collected from the taxpayer under this article be less than two dollars ($2.00), which amount shall be in all cases a minimum tax for such police protection within the City.
Section 791.02 COUNCIL TO DETERMINE PROPERTY VALUE.
The police service charge provided for in Section 791.01 shall be payable for each fiscal year of the City, which fiscal year commences on July 1 of a given year and ends on June 30 of the following year. The value of all residential, industrial, commercial or other building or buildings and tangible personal property within the City shall be determined by Council on or before July 15 of each fiscal year. A copy of each such determination made by Council shall be placed on file in the office of the City Treasurer within three days after such determination is made and shall be subject to public inspection in that office.
In conjunction with Ordinance No. 7225, the City of Wheeling on June 16, 1981, promulgated Ordinance No. 7278. The purpose of Ordinance No. 7278 was to determine property values in the city in order that police service charges could be established. That ordinance provided, in part, as follows:
Section 1. The City Manager is hereby authorized and directed to expend funds of the City of Wheeling in the amount of Two Thousand Five Hundred Dollars, ($2,500.00) with Harold P. Armbrecht, Assessor, Ohio County, Wheeling, West Virginia, for a complete set of 1980 Land and Personal Property Books for use in billing 1980-81 City Police Service Charges and Fire Service Charges to be charged to Treasury/Contractual Services--Assessor's List.
Section 2. The assessments set forth in the aforesaid Land and Property Books as they relate to property within the City of Wheeling are hereby determined to be the value of all residential, industrial, commercial or other building or buildings and tangible personal property within the City, pursuant to Section 791.02 and 793.02 of the Code of the City of Wheeling.
Also, on June 16, 1981, the City of Wheeling promulgated Ordinance No. 7283. That ordinance raised the minimum police service charge from $2.00 to $10.00.
In February or March, 1982, the City of Wheeling began billing property owners for the police service charge. In March, 1982, the appellants commenced this action. The validity of the police service charge was upheld by the circuit court by order entered on March 29, 1982.
In challenging the validity of the police service charge, the appellants in this appeal contend that, because some users (property owners) and not all users of police services are liable for the police service charge, the charge violates the provisions of W.Va.Code, 8-13-13 [1971]. The appellants further contend that, because the police service charge is directly related to assessed property values within the city, the charge is, in fact, an ad valorem property tax and, as such, is in violation of W.Va.Const., art. X, § 1. That constitutional provision is known as the "Tax Limitation Amendment." In addition, the appellants raise other grounds challenging the validity of the police service charge.
The City of Wheeling, on the other hand, contends that the ordinances in question establishing the police service charge are lawful and that the final order of the circuit court should be affirmed. 1
Inasmuch as this Court is of the opinion that the police service charge violates W.Va.Const., art. X, § 1, the Tax Limitation Amendment, the remaining issues raised by the appellants need not be addressed.
The Tax Limitation Amendment was ratified on November 8, 1932. That amendment imposes limits beyond which property may not be subjected to taxation within this State. 2 That amendment provides, in part:
Subject to the exceptions in this section contained, taxation shall be equal and uniform throughout the State, and all property, both real and personal, shall be taxed in proportion to its value to be ascertained as directed by law. No one species of property from which a tax may be collected shall be taxed higher than any other species of property of equal value; except that the aggregate of taxes assessed in any one year upon personal property employed exclusively in agriculture, including horticulture and grazing, products of agriculture as above defined, including livestock, while owned by the producer and money, notes, bonds, bills and accounts receivable, stocks and other similar intangible personal property shall not exceed fifty cents on each one hundred dollars of value thereon and upon all property owned, used and occupied by the owner thereof exclusively for residential purposes and upon farms occupied and cultivated by their owners or bona fide tenants one dollar; and upon all other property situated outside of municipalities, one dollar and fifty cents; and upon all other such property situated within municipalities, two dollars; and the legislature shall further provide by general law, for increasing the maximum rates, authorized to be fixed, by the different levying bodies upon all classes of property, by submitting the question to the voters of the taxing units affected, but no increase shall be effective unless at least sixty percent of the qualified voters shall favor such increase, and such increase shall not continue for a longer period than three years at any one time, and shall never exceed by more than fifty percent the maximum rate herein provided and prescribed by law; and the revenue derived from this source shall be apportioned by the legislature among the levying units of the State in proportion to the levy laid in said units upon real and other personal property.... 3
In response to the Tax Limitation Amendment, the West Virginia Legislature enacted W.Va.Code, 11-8-1, et seq....
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