Nuckols v. Athey

• Decision Date: 20 October 1964
• Docket Number: No. 12340,12340
• Court: West Virginia Supreme Court
• Parties: Jack NUCKOLS, Commissioner, etc. v. Lora D. ATHEY.

Page 344

138 S.E.2d 344

149 W.Va. 40

Jack NUCKOLS, Commissioner, etc. v. Lora D. ATHEY.

No. 12340.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 17, 1964.

Decided Oct. 20, 1964.

Syllabus by the Court

1. A court has a duty to attempt to find a proper basis for upholding the validity of a legislative enactment when its constitutionality is challenged in a legal proceeding pending before such court, but also a duty to declare such legislative enactment invalid when it is clearly unconstitutional.

2. The constitutionality of a legislative enactment may be determined in a civil action instituted pursuant to the statutes and court rules of this state pertaining to declaratory judgments.

3. A resident of this state who transports her used automobile to another state, who there trades it to a resident of the latter state as a part of her purchase from him of a new automobile, and who thereafter transports the newly purchased automobile to her home in this state, is engaged in interstate commerce within the meaning of Article I, Section 8 of the Constitution of the United States.

4. A nondiscriminatory tax may be imposed by the legislature of this state upon the privilege of effecting a certification of title of a motor vehicle which was purchased in another state but which has been transported into this state, has ceased to be in transit and has become a part of the common mass of property within this state.

5. Chapter 17A, Article 3, Section 4 of the Code, 1931, as amended, which imposes a tax upon the privilege of effecting certification of titles to motor vehicles, to the extent that, by amendment of that statute in 1959, it undertakes to impose a greater burden of taxation in relation to motor vehicles purchased outside this state than in relation to motor vehicles purchased within this state, discriminates against interstate commerce in such a way as to conflict with Article I, Section 8 of the Constitution of the United States and, in that respect and to that extent, it is unconstitutional and void.

6. 'A statute may contain constitutional and unconstitutional provisions which may be perfectly distinct and separable so that some may stand and the others will fall; and if, when the unconstitutional portion of the statute is rejected, the remaining portion reflects the legislative will, is complete in itself, is capable of being executed independently of the rejected portion, and in all other respects in valid, such remaining portion will be upheld and sustained.' Point 6 Syllabus, State v. Heston, 137 W. Va. 375 .

Atty. Gen. C. Donald Robertson, Asst. Atty. Gen. Thomas B. Yost, Charleston, for appellant.

Steptoe & Johnson, Charles W. Yeager, Charleston, Buckmaster, White, Mindel & Clarke, George W. White, Jr., Baltimore, Md., for appellee.

CALHOUN, Judge.

This case is on appeal from the final judgment of the Circuit Court of Kanawha County entered in a declaratory judgment action instituted in that court to test the constitutionality of a portion of Chapter 17A, Article 3, Section 4 of Code, 1931, as amended, which statute deals with motor vehicles. The portion of the statute which is pertinent to this case is as follows:

'* * * A tax is hereby imposed upon the privilege of effecting the certification of title of each vehicle in the amount equal to three per cent of the value of said motor vehicle at the time of such certification. If the vehicle is new, the actual purchase price or consideration to the purchaser thereof shall be the value of said vehicle; if the vehicle is a used or second-hand vehicle, the present market value at time of transfer or purchase shall be deemed the value thereof for the purpose of this section: Provided, however, that if said motor vehicle is purchased in the state of West Virginia, so much of the purchase price or consideration as is represented by the exchanbe of other vehicles on which the tax herein imposed has been paid by the purchaser shall be deducted from the total actual price or consideration paid for said vehicle, whether the same be new or second-hand; if the vehicle be acquired through gift, or by any manner whatsoever, unless specifically exempted in this section, the present market value of the vehicle at the time of the gift or transfer shall be deemed the value thereof for purposes of this section. * * * The total amount of revenue collected by reason of this tax shall be paid into the state road fund and expended by the state road commissioner for matching federal aid funds allocated for West Virginia. * * *' (Italics supplied.)

The italicized words were added to the statute by Acts of the Legislature, Regular Session, 1959, Chapter 101, Article 3, Section 4. The assertion of unconstitutionality relates to the language thus added by the 1959 amendment.

Lora D. Athey, the defendant, is a resident of Keyser, Mineral County, West Virginia. On or about October 20, 1961, she went to Cumberland, Maryland, and there purchased a 1962 Cadillac automobile. The full purchase price was $5,535.77, but the defendant traded to the seller a 1960 Cadillac automobile for which she was given an allowance of $3,835.34, leaving a balance of $1,700.43. She paid a tax to the department of motor vehicles in the sum of $166.07, representing three per cent on the full purchase price, for the privilege of effecting a certification of title in West Virginia, pursuant to the provisions of the statute previously quoted.

By a letter dated September 17, 1962, and written pursuant to the provisions of Code, 1931, 11-1-2a, as amended, the defendant applied to the plaintiff, Honorable Jack Nuckols, commissioner of motor vehicles, for a refund of the sum of $166.07, the full amount of the tax paid by her; or, in the alternative, for a refund of the sum of $115.06, representing the amount of the tax computed on the value of the automobile which she traded to the Maryland dealer. The commissioner by letter declined to make a refund. By a subsequent letter, the defendant demanded that the commissioner institute a declaratory judgment action against her in a court of competent jurisdiction, pursuant to the provisions of Code, 1931, 11-1-2a, as amended, to determine whether the tax or any part of it was unlawfully collected.

Pursuant to the demand made by the defendant, the commissioner instituted a declaratory judgment action in the Circuit Court of Kanawha County for the purpose of having a determination whether the method of computing the tax as prescribed by the statute is in violation of the 'equal and uniform' provision of Article X, Section 1 of the Constitution of West Virginia or in violation of the 'commerce clause' of Article I, Section 8 of the Constitution of the United States. The defendant filed an answer in which she admitted the truth of all factual allegations of the complaint. There being no factual dispute, the defendant moved for summary judgment on the pleadings.

In granting summary judgment in favor of the defendant, the trial court held that the words, 'if said motor vehicle is purchased in the state of West Virginia,' appearing in the statute, are repugnant to and in violation of Article I, Section 8 and the Fourteenth Amendment of the Constitution of the United States, and also repugnant to and violative of Article X, Section 1 of the Constitution of West Virginia; that such language is, therefore, void and of no effect; that the provisions of the statute are separable so that the remainder of it remains effective; and that the defendant is entitled to a refund of the sum of $115.06, representing the tax computed on the value of the automobile which she traded to the dealer in Maryland. From the judgment of the circuit court embodied in an order dated January 7, 1964, the commissioner has been granted an appeal to this Court.

It is firmly established that a court has a duty to attempt to find a proper basis for upholding a legislative enactment when its constitutionality is assailed, but also a duty to declare it invalid if it is clearly unconstitutional. State ex rel. Slatton v. Boles, Warden, W.Va., 130 S.E.2d 192; Tanner v. Premier Photo Service, Inc., W.Va., 125 S.E.2d 609; State v. Schoonover, 146 W.Va. 1036, 124 S.E.2d 340; Appalachian Power Co. v. The County Court of Mercer County, 146 W.Va. 118, 118 S.E.2d 531; Board of Education of Wyoming County v. Board of Public Works, 144 W.Va. 593, 109 S.E.2d 552; State ex rel. Winter v. Brown, 143 W.Va. 617, 103 S.E.2d 892; Kanawha County Public Library v. The County Court of Kanawha County, 143 W.Va. 385, 102 S.E.2d 712.

The constitutionality of a statute may be determined in a declaratory judgment action. Robertson v. Hatcher, W.Va., 135 S.E.2d 675; W. C. Farley v. Graney, 146 W.Va. 22, pt. 2 syl., 119 S.E.2d 833; Appalachian Power Co. v. The County Court of Mercer County, 146 W.Va. 118, 118 S.E.2d 531; Board of Education of Wyoming County v. Board of Public Works, 144 W.Va. 593, pt. 1 syl., 109 S.E.2d 552.

In Vaught v. Bailey, State Road Commissioner, 115 W.Va. 317, 175 S.E. 783, this Court held that the consumers sales tax statute (Code, 1931, Chapter 11, Article 15, as amended) cannot be applied to the purchase of an automobile outside this state and that the payment of the consumers sales tax on the purchase price of such an automobile cannot be required, as a prerequisite to the right of the purchaser to have the automobile registered in this state. See also 15 C.J.S., Commerce, Section 112b, page 467. By way of dictum, the Court indicated in the Vaught case that a tax statute such as that involved in this case would be regarded as valid if nondiscriminatory in its provisions. Thereafter, in 1951, the legislature enacted the statute referred to previously herein which imposes a tax 'upon the privilege of effecting the certification of title' to a motor vehicle registered under the laws of this state.

Taxes of this character, which are referred to as use taxes, are in force in...