Hukle v. City of Huntington, C

• Decision Date: 04 April 1950
• Docket Number: No. C,C
• Citation: 58 S.E.2d 780,134 W.Va. 249
• Court: West Virginia Supreme Court
• Parties: HUKLE et al. v. CITY OF HUNTINGTON et al. C. 758.

Page 780

58 S.E.2d 780

134 W.Va. 249

HUKLE et al. v. CITY OF HUNTINGTON et al.

No. C. C. 758.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 17, 1950.

Decided April 4, 1950.

Syllabus by the court.

1. 'A municipality has no inherent power to levy taxes; it can do so only by virtue of the authority delegated to it by the legislature. Its powers are limited, and the statute vesting it with power to tax must be strictly construed and strictly followed; in construing the statute all doubts should be resolved against the city and in favor of the taxpayer.' Opinion, City of Fairmont v. Bishop, 68 W. Va. 308, 313 .

2. Opinion in the case of Alderson et al. v. City of Huntington et al., W. Va., , decided March 1, 1949, is modified.

3. Generally, the requirements of an ordinance governing procedure for the adoption of another ordinance cannot be waived, suspended or repealed by motion.

Marcum & Gibson, Huntington, for plaintiffs.

H. L. Ducker, Huntington, for defendants.

LOVINS, President.

C. B. Hukle; Mrs. C. B. Hukle; J. F. Walter; Beverly Amusement Company, a Corporation; Westmoreland Amusement Company, a corporation; Palace Amusement Company, a corporation; Third Avenue Theater Company, a corporation; The Greater Huntington Theater Corporation, a corporation; and A. & M. Corporation, plaintiffs, all of whom are owners and operators of moving picture theaters in the City of Huntington, filed their bill of complaint in the Circuit Court of Cabell County against the City of Huntington, a municipal corporation; W. W. Payne and Robert L. Smith, mayor and clerk, respectively, of said municipal corporations; and Jack N. Waldeck, Frank L. Perry, C. C. Jameson, J. E. Stark, Jack Gillespie, George Snider, Russell D. Pollard, Herman S. Rice, Daryl Steinbrecker, Ancil C. Smith, Dr. R. C. Curry, H. C. Hundley, and George Osgood, members of the council of said municipal corporation.

The purpose of this suit is to invalidate and enjoin the enforcement of an ordinance levying an 'amusement tax' in the City of Huntington. Plaintiffs attack the ordinance on three grounds: (1) That the City of Huntington had no authority by general law of this State or under its charter, being Chapter 161, Acts of the Legislature, Second Extraordinary Session, 1933, to enact or enforce such ordinance; (2) that the ordinances levies and assesses a consumers' sales tax and not a privilege or license tax; and (3) that the action of the city council in adopting said amusement tax ordinance is in violation of Section 4, Chapter 2 of the municipal Code.

The material and pertinent parts of the ordinance are:

'Sec. 1:

'For the privilege of engaging in the business of furnishing public amusement or entertainment conducted for private profit or gain as hereinafter defined within the corporate limits of the city, the city hereby levies and authorizes the collection of an admission and amusement tax of two cents for each person attending any public amusement or entertainment conducted within the corporate limits of the city for private profit or gain.

'Sec. 2. * * *

'(3) 'Taxpayer' shall mean a person, firm or corporation engaged in the business of furnishing any public amusement or entertainment conducted within the corporate limits of the city for private profit or gain.

* * *

* * *

'Sec. 10.

'This article shall apply to persons who attend public amusements or entertainments conducted for private profit or gain, or on passes.'

Other sections of the ordinance provide for liens, the enforcement of such liens, and reports to be made by taxpayer; and impose certain duties upon the city tax collector. In our view these are not material or necessary for the purposes of this opinion. It suffices to say that the provisions of the ordinance are sufficient to include the business of operating a moving picture theater.

Chapter 2, Section 4 of the municipal Code of the City of Huntington reads as follows: 'All ordinances to be submitted for approval or disapproval of the City Council shall be filed with the Clerk of the Council not less than five days before such submission.' The ordinance here considered was filed with the clerk on the 25th day of July, 1949; was passed on the 28th day of July, 1949; and by its terms became effective on August 1, 1949. The council of said city, by motion, waived and suspended the provisions of Section 4 of Chapter 2 above quoted, and passed the amusement tax ordinance approximately three days after it was filed with said clerk.

The Circuit Court of Cabell County overruled defendants' demurrer to the bill of complaint; granted an injunction inhibiting defendants, their agents, servants and employees until the further order of that court from attempting to enforce the provisions of said ordinance; and, upon its own motion and the joint application of the parties, certified the following questions, which certificate was docketed by this Court:

'1. Whether or not the City of Huntington, a Municipal Corporation of the State of West Virginia, by its charter or by any law of the State of West Virginia, had lawful power and authority to pass, enact and enforce the ordinance attempted to be adopted on July 28, 1949, entitled 'Amusement Tax Ordinance'.

'2. Whether said so-called 'Amusement Tax Ordinance' creates a privilege or license tax, or creates what is, in effect and by its terms, a consumers' sales tax.

'3. Whether or not the Common Council of said City of Huntington had power and authority by motion to set aside or suspend the operation of its then existing ordinance requiring all proposed ordinances to be filed in the office of the City Clerk, five days prior to the consideration thereof by the Council, and to consider and enact said 'Amusement Tax Ordinance', on July 28, 1949, the same having been filed in said Clerk's office on July 25, 1949.'

Questions (1) and (2), above quoted, involve the same considerations and will be discussed together. We first advert to the general principles relative to the powers of a municipality. In the case of Hyre v. Brown, 102 W. Va. 505, 135 S.E. 656, 49 A.L.R. 1230, this Court made an excellent statement, relative to such powers, in point 2 of the syllabus, which reads as follows: 'A municipal corporation possesses and can exercise only the following powers: (1) Those granted in express words; (2) those necessarily or fairly implied in or incident to the powers expressly granted; (3) those essential to the accomplishment of the declared objects and purposes of the corporation--not simply convenient, but indispensable.' See St. Mary's v. Hope Natural Gas Co., 71 W. Va., 76, 76 S.E. 841, 43 L.R.A., N.S. 994; Kresge Co. v. City of Bluefield, 117 W. Va. 17, 183 S.E. 601; Brackman's Inc., v. City of Huntington, 126 W. Va. 21, 27 S.E.2d 71; State ex rel. Crouse v. Holdren, 128 W. Va. 365, 367, 36 S.E.2d 481. The Hyre case is also authority for the proposition that the power of a municipality must be denied if any reasonable doubt exists whether the corporation is possessed of such power. Applying the rule laid down in the Hyre case and followed by this Court in other cases, we must examine with strictness the authority of the City of Huntington to adopt the ordinance here considered.

The decision of this case is controlled by determination of the question whether the ordinance levies and assesses a consumers' sales tax, or a gross sales tax. In Kresge Co. v. City of Bluefield, supra, this Court considered the distinctions between a consumers' sales tax and a gross sales tax, and held an ordinance of the City of Bluefield levying a tax similar to the State consumers' sales tax invalid. The City of Huntington adopted an ordinance essentially similar to the one considered by this Court in the Kresge case, and this Court, in the case of Anderson-Newcomb v. City of Huntington, 117 W. Va. 716, 188 S.E. 118, held the tax so levied invalid.

In the case of Mullens v. City of Huntington, 117 W. Va. 740, 188 S.E. 120, this Court held: 'A tax imposed by the city of Huntington on the privilege of engaging in the business of selling at retail, the same being levied on the gross sales of the business, held to be within the power, conferred by charter, 'to license, tax, regulate or prohibit theatres * * * and other things or business on which the state does or may exact a license tax.'' Therefore, we conclude...