Mullens v. The City Of Huntington

• Decision Date: 22 September 1936
• Citation: 117 W.Va. 740
• Court: West Virginia Supreme Court
• Parties: S. Mullens et al, Partners, etc., v. The City of Huntington, A Municipal Corporation et al.

117 W.Va. 740

S. Mullens et al, Partners, etc.,

v.The City of Huntington, A Municipal Corporation et al.

Supreme Court of Appeals of West Virginia.

Submitted September 15, 1936.

Decided September 22, 1936.

(Written opinion filed October 6, 1936)

Taxation

a tax imposed by the city of ECuntington 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."

Suit by S. Mullens and others, partners, etc., against the City of Huntington and others for an injunction. Demurrer to the bill of complaint was sustained and relief sought denied, and application was made to the Supreme Court of Appeals.

Injunction denied.

Russell W. Morris, for plaintiffs.

J. Frank Eaton and E. L. Hogsett, for defendants.

Woods, Judge:

S. Mullens, H. U. Mullens, and L. J. Mullens, partners, etc., engaged in the selling of merchandise at retail in the city of Huntington, seek to enjoin the collection of a certain tax under section 2 (c) of a municipal ordinance enacted September 16, 1935, providing for the imposition of "business, privilege and occupational taxes upon the exercising of certain privileges" in said municipality. The circuit court having sustained a demurrer to the bill of complaint and denied the relief sought, application was made to this Court, which, on September 20, 1936, likewise denied the injunction.

By section 2 (c), aforesaid, there is levied upon every person engaging or continuing within the municipality in the business of selling at retail (horticulture, etc., excepted), any tangible property whatsoever, real or personal, a tax equivalent to one-fourth of one per cent of the gross income of the business (less certain deductions, section 3); which tax, according to section 10, is in addition to all other licenses and taxes levied as a condition precedent to engaging in said business. And, according to the last-mentioned section, a person exercising such privilege "may exercise the same for the current tax year upon condition that he shall pay the tax accruing under" said ordinance.

The validity of so much of the ordinance as affects the plaintiffs is challenged on the following grounds, to-wit: (1) that the charter does not expressly, or by necessary implication, authorize the levy of such a tax as therein provided; and (2) that the legislature is prohibited, by section 9, Article X, Constitution of West Virginia, from delegating authority to enact such an ordinance to a municipality. It is argued, however, on behalf of the city that the ordinance, as well as the statute (Chapter 33, Acts First Extraordinary 1...