Killen v. Logan County Com'n

• Decision Date: 02 July 1982
• Docket Number: No. CC931,CC931
• Citation: 170 W.Va. 602,295 S.E.2d 689
• Court: West Virginia Supreme Court
• Parties: , 42 A.L.R.4th 627 Ray KILLEN, as President, Logan County Board of Education, etc., et al. v. LOGAN COUNTY COMMISSION, etc., et al.

Page 689

295 S.E.2d 689

170 W.Va. 602, 42 A.L.R.4th 627

Ray KILLEN, as President, Logan County Board of Education, etc., et al. v. LOGAN COUNTY COMMISSION, etc., et al.

No. CC931.

Supreme Court of Appeals of West Virginia.

July 2, 1982.

Dissenting Opinion July 15, 1982.

Concurring Opinion Sept. 3, 1982.

Syllabus by the Court

1. The first step in the valuation process is a democratic exercise in which each taxpayer swears what he deems to be the "true and actual value" of his property.

2. To ensure citizen participation, it is the duty of each county commission to provide the necessary personnel to see that every taxpayer is called upon by the county assessor or deputies. If the county commission fails to provide the assessor with sufficient staff to complete this initial step, the tax commissioner is empowered by statute to appoint special assessors to complete the task. W.Va.Code § 11-3-1.

3. The term "value," as used in article 10, section 1 of the West Virginia Constitution, means the "worth in money" of a piece of property--its market value.

4. Any system which encourages or permits the setting of assessments at lower than 100 percent of "true and actual value" violates article 10, section 1 of the West Virginia Constitution.

5. The present system of equating assessments which are 50 percent of property's appraised value with "true and actual value" does not achieve the constitutional requirement of equal and uniform taxation.

6. The percentage ratio scheme found in W.Va.Code § 18-9A-11 results in fractional assessment in violation of the West Virginia Constitution.

7. The tax commissioner's appraisal should be presumed to be correct and the assessed value should correspond to the appraisal value in the usual case.

8. An objection to any assessment may be sustained only upon the presentation of competent evidence, such as that equivalent to testimony of qualified appraisers, that the property has been under- or over-valued by the tax commissioner and wrongly assessed by the assessor. The objecting party, whether it be the taxpayer, the tax commissioner or another third party, must show by a preponderance of the evidence that the assessment is incorrect.

9. To maintain the integrity of the appraisal system, it is incumbent upon the county assessor and county commissioners to inform the tax commissioner of all challenges made to assessment values based on claims of over- or under-appraisal by the tax commissioner.

10. It is the tax commissioner's duty to ensure that assessment occurs at market value. The tax commissioner must see that county officials are complying with the constitutional and statutory requirements of full value assessment. W.Va.Const. art. 10, § 1; W.Va.Code §§ 11-3-1; 18-9A-11.

11. It is the duty of the tax commissioner to proceed with all deliberate speed to develop an up-to-date appraisal for each assessment year for all the 55 counties. The tax commissioner has a duty to appoint the necessary special assessors and appraisers to accomplish this end. W.Va.Code § 18-9A-11.

12. County assessors are not involved in the process by which a levy rate is established and approved. The assessors mechanically apply the approved levy rates to the total assessed value of the county to determine the amount of tax owed. This duty is ministerial in nature.

13. Fifty-five sovereign entities do not exist within the sovereign state of West Virginia. Rather, 55 geographically-defined governmental organizations exist to carry out the purpose of state government. The counties are subdivisions of the state, and county officials and governments are generally subject to supervision by state officials acting for the state government.

W. Bernard Smith, Logan, for plaintiffs.

G. Thomas Battle and David B. Shapiro, Charleston, Edward I. Eiland, Logan, Ernest Hays, II, Bluefield, for Amherst Coal Co.

Jacquline A. Kinnaman, Charleston, for amicus curiae W.Va. Educ. Ass'n.

Alice Green, Charleston, for amicus curiae W.Va., for Fair and Equitable Assessment of Taxes.

Jane Moran, Williamson, for amicus curiae Tug Valley Recovery Center.

McGRAW, Justice:

This case comes to us upon a certified question from the Circuit Court of Logan County. The Logan County Board of Education and its president filed an action there seeking review of a decision by the Logan County Board of Equalization and Review which approved assessment values set by the Logan County assessor. The question certified to this Court is whether W.Va.Code § 18-9A-11 (1977 Replacement Vol.), which allows assessors to value property at 50-100 percent of its appraised value, violates the state constitution's guarantee of "equal and uniform taxation throughout the State ...." W.Va.Const. art. 10, § 1. ¹ The trial court held that the statute was unconstitutional. We affirm that ruling.

The issue in this case is clear. W.Va.Code § 18-9A-11 purports to authorize county assessors to assess property at 50-100 percent of the appraised value determined by the state tax commissioner pursuant to the same statute. Article 10, section 1 of the West Virginia Constitution declares that "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." (Emphasis added.) The respondents, the Logan County Board of Education and its president, argue that assessment of property at a fraction of its appraised value is unconstitutional because the 50-100 percent provision results in unequal and non-uniform assessment, and thus unequal and non-uniform taxation. The petitioners, individual property owners who intervened in the case below, contend that the 50-100 percent provision represents a legislative recognition that differences of opinion exist as to the value of property. In their view, the statute does not result in percentage assessment. We conclude that the 50-100 percent provision does result in fractional assessment and therefore violates article 10, section 1 of the West Virginia Constitution.

I.

It is axiomatic under the American republican form of government that "the representatives of the people must impose the taxes the people are to pay." 1 T. Cooley, The Law of Taxation § 21 at 84 (4th ed. 1924). This fundamental principle of government comes from England and precedes the American Revolution. It was recognized that imposition of taxes was a legislative power, and the sovereign could not levy taxes except as authorized by the representatives of the realm. Id. "No taxation without representation" subsequently became a rallying cry in the American colonies' fight for independence from the British crown, as evidenced by the list of grievances set out in the Declaration of Independence. That historic document condemned the British monarchy "[f]or imposing Taxes on us without our Consent."

The framers of the United States Constitution recognized the fundamental requirement of representative taxation in the organic law of this country when they gave sole authority "to lay and collect taxes" to Congress. U.S.Const. art. I, § 8. Similarly, the West Virginia Constitution vests in the Legislature the power to impose taxes. W.Va.Const. art. 10, §§ 1, 5, and 9. Thus, except as limited by the constitution itself, see, e.g., W.Va.Const. art. 10, §§ 1a, 1b, and 10, the authority to impose general state taxes is a legislative power.

Article 10 of the West Virginia Constitution is both a grant of power to the Legislature to tax and a limitation upon that power. The limitation consists of a specific application of equal protection principles to a particular area of governmental action--taxation. The basic and fundamental premise of the provision is that "equal and uniform taxation" be the rule and not the exception. This requirement is emphasized further by language prohibiting the taxing of one species of property "higher than any other species of property of equal value." See generally In re Assessment of Kanawha Valley Bank, 144 W.Va. 346, 109 S.E.2d 649 (1959).

Article 10, section 1 further mandates that property subject to taxation be valued as "directed by law." Thus, the Legislature must prescribe a system or method by which property is valued. Such a system must accomplish the constitutional requirement of "equal and uniform taxation." These provisions have been fundamental State law since 1863 when the citizens of West Virginia adopted their first constitution.

In 1932, the people amended article 10, section 1 by ratifying what was popularly called the "Tax Limitation Amendment." That amendment established four classes of property and fixed maximum rates at which each class of property could be taxed. These rates ranged from $.50 to $2 per hundred dollars of valuation depending on the property's classification. ² The amendment also authorized the Legislature to prescribe rates which could exceed the specific maximums. The people tempered this grant of authority by imposing several conditions on enactment of such "excess" levies. First, additional rates could be imposed for no more than three years at a time. Second, 60 percent of the voters had to approve the levy. Third, the added levy rate could be no more than 50 percent of the maximum rate. ³

Pursuant to section 1, the Legislature has prescribed the method of valuation and the levy rate for classes of property. ⁴ Over the years, the Legislature has responded to tax reform efforts and to increased revenue needs by enacting a variety of tax statutes. Some relate exclusively to property assessment and taxation while others also deal with financial support of public schools. See, e.g., W.Va.Code §§ 11-1-1 to 11-8-33 (1974 Replacement Vol. & Cum.Supp.1981); 18-9A-1 to -20 (1977 Replacement Vol. & Cum.Supp.1981).

Valuation of property, establishment of the levy rate, determination and payment of taxes and distribution of revenue is a complex process which depends upon...