Lingamfelter v. Brown

• Citation: 52 S.E.2d 687
• Decision Date: 15 March 1949
• Docket Number: C. C. No. 747.
• Court: Supreme Court of West Virginia
• Parties: LINGAMFELTER et al. v. BROWN et al.

52 S.E.2d 687

LINGAMFELTER et al.
v.
BROWN et al.

C. C. No. 747.

Supreme Court of Appeals of West Virginia.

March 15, 1949.

[52 S.E.2d 688]Syllabus by the Court.

1. A tax can be levied only for a public purpose.

2. Whether the purpose of a tax is public or private is a judicial question.

3. Section 4, Chapter 5, Acts of the Legislature, Regular Session, 1947, when considered with the other provisions of said statute, levies a tax for private purposes, and is, for that reason, unconstitutional and void.

4. The remaining sections of Chapter 5, Acts of the Legislature, Regular Session, 1947, being dependent upon the validity of Section 4, which is void, are also unconstitutional.

Certified from Circuit Court, Kanawha County.

Suit by Paul L. Lingamfelter against Malcolm M. Brown and others to restrain enforcement of an act providing for the creation of West Virginia State Apple Commission and the imposition of a tax on commercial apples,, on the ground that the act is unconstitutional. The trial court sustained a demurrer to plaintiffs' bill of com plaint and on its own motion certified such ruling to the Supreme Court of Appeals. Judgment reversed.

Spilman, Thomas & Battle and Robert S. Spilman, all of Charleston, and J. O））. Henson, of Martinsburg, for plaintiffs.

Ira J. Partlow, Atty. Gen, Jackson, Kelly, Morrison & Moxley, Thomas B. Jackson and John C. Morrison, all of Charleston, for defendants.

LOVINS, Judge.

This suit, commenced in the Circuit Court of Kanawha County, challenges the validity of Chapter 5, Acts of the Legislature, 1947, Regular Session, providing for the organization, powers and duties of the West Virginia State Apple Commission, and levying a tax on commercial apples in excess of five hundred bushels, grown in West Virginia and "moved into the channels of commerce."

Paul L. Lingamfelter, Laila M. Lingamfelter, L. W. Dellaven, James L. Dillon, Charles Shade, J. Howard Brown, Claude LeDane, Max Miller, Charles Collis, George D. Daniels, Mrs. W. B. Lingamfelter, Martin Shade, Charles Lewis, Cecil DeHaven, Lester Hess, Ray Manor, Edward Basorc, Claude Newkirk, W. K. Ellis, Jack Catrow, C. D. Catrow, O. II. Cushwa, Marvin Ellis, Frank J. Trammell, G. A. Donaldson, Milton Porterfield, L. F. Landis and H. H. Smith, who sue on behalf of themselves and of all others similarly situated and hereinafter referred to as "plaintiffs", are the owners of apple orchards aggregating 1, 782 acres, from which were produced in the year 1947 approximately 342, 500 bushels of apples. The defendants herein are Malcolm M. Brown, J. Howard Rannels, Fred C. Matson, J. Burns Huyett, Sam M. Skinner, Henry W. Miller, Jr., and Edward S. Knight, all of whom are members of and constitute the West Virginia State Apple Commission, hereinafter referred to as "commission", and Ira J. Partlow, Attorney General of the State of West Virginia. Defendants demurred to the plaintiffs' bill of complaint, and the trial court, having sustained said demurrer, on its own motion certified such ruling to this Court.

Chapter 5, Acts of the Legislature, Regular Session, 1947, was enacted February 24.

[52 S.E.2d 689]

1947, effective from passage, and shall be designated herein "statute". The title of the statute is as follows: "AN ACT to amend chapter nineteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article to be numbered article twelve-a, relating to apples; to create the West Virginia state apple commission and to prescribe its powers and duties; to promote the sale and consumption of West Virginia apples by providing for campaigns of education, advertising, publicity, sales promotion and research; to levy an excise tax on apples entering the channels of commerce, to provide for its collection, and to appropriate the revenue derived from it; and to provide penalties for violations of this act."

Section 1 defines a phrase and certain words contained in the statute. Section 2 creates the West Virginia State Apple Commission; prescribes the qualifications of its seven members who are to be appointed by the Governor from a list of fourteen eligible growers of apples supplied to him by the West Virginia State Horticultural Society; fixes the term of each member of the commission; and provides for the election of a chairman and the payment of expenses and per diem allowances from the apple merchandising fund created by the statute.

Section 3 prescribes the duties of the commission and provides that "All funds levied and collected" shall be administered by the commission. The commission is required "to plan and conduct campaigns of education, advertising, publicity, sales promotion, and consumption of West Virginia apples"; is authorized to make contracts and expend the apple merchandising fund; and to "do whatever else may be necessary to effectuate the purposes of" the statute. Section 3 also authorizes the commission to cooperate with other state and federal agencies and with agricultural and horticultural organizations in research "on production, packaging and marketing, advertising, publicity, education and other means of promoting the sale and use of apples and to expend moneys of the apple merchandising fund for such purposes;" and to appoint a secretary and other employees and fix their salaries.

Section 4 levies a tax of one cent per bushel on "all commercial apples grown in West Virginia and moved into the channels of commerce, " exempting therefrom the first five hundred bushels of apples sold in any one crop season.

Section 5 requires reports to be made to the commission by the growers of commercial apples. Section 6 provides for the time and manner of payment of the tax levied by Section 4. Section 7 requires the grower of commercial apples to keep a record of the apples sold by him. Section 8 provides for the collection of the tax, with interest thereon; authorizes the recovery of unpaid taxes by a civil action in the name of the State of West Virginia; and requires the attorney general to institute such actions, in the proper court at the request of the commission.

Section 9 creates the "apple merchandising fund", and provides that all moneys credited to such fund be appropriated by the Legislature for the purposes set forth in the statute. Section 9 also provides that the money be credited on the state treasurer's books and be used "exclusively for the administration and enforcement * * * including the collection of taxes, the payment of personal services and expenses of employees and agents of the commission and the payment of rent, service, materials and supplies necessary to effectuate the purposes and objects" of the statute. Section 9 further provides that any unexpended balance of the apple merchandising fund remaining at the end of each biennium should not be transferred to the general fund of the state treasury.

Section 10 requires that warrants be drawn for the expenditures made by the commission. Section 11 provides that any false report made by a grower of the quantity of apples sold by him in any period shall be a misdemeanor. Section 12 requires all state and county law-enforcement officers to assist in the enforcement of the statute.

The last section of the statute, Section 13, is as follows: "If any clause, sentence or section of this article shall for any reason be adjudged by a court of competent jurisdiction to be invalid, such adjudica-

[52 S.E.2d 690]

tion shall not affect, impair or invalidate the remainder thereof, but shall be confined in its operation to the clause, sentence or section of this article directly involved in the controversy in which said adjudication shall have taken place."

The plaintiffs' bill of complaint, having set forth the enactment of the statute and the substance of its provisions, alleges that the defendants, except the defendant Part-low, have been appointed from a list furnished the Governor of this State in accordance with the provisions of the statute; that the persons so appointed are now performing the duties of said commission and exercising the powers conferred on it by the statute; that, on or about the 1st day of December, 1947, the commission demanded that the plaintiffs and other growers of commercial apples make the reports required by the statute on the forms prescribed by the commission covering the 1947 harvest; and that the commission demanded the growers of commercial apples to pay one-half of the tax levied...