The Anderson-Newcomb Co.. v. The City Of Huntington.

• Decision Date: 08 September 1936
• Docket Number: (CC 567)
• Citation: 117 W.Va. 716
• Court: West Virginia Supreme Court
• Parties: The Anderson-Newcomb Company et al. v. The Cityof Huntington et al.

117 W.Va. 716

The Anderson-Newcomb Company et al.

v. The Cityof Huntington et al.

(CC 567)

Supreme Court of Appeals of West Virginia.

Submitted September 2, 1936.

Decided September 8, 1936.

(Written opinion filed September 15, 1936)

Municipal Corporations

The taxing power of a municipality depends upon legislative authority, expressed or necessarily implied.

Certified Questions from Circuit Court, Cabell County.

Suit by the Anderson-Newcomb Company and others against the City of Huntington and others. Demurrer to the bill of complaint was overruled, and questions arising on the sufficiency of the bill were certified.

Ruling affirmed.

H. L. Ducker, for plaintiffs.

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

Kenna, Judge:

This suit was brought in the Circuit Court of Cabell County by the Anderson-Newcomb Company, a corporation, and others, against the City of Huntington, its mayor, clerk and director of public safety. The purpose was to procure an injunction inhibiting the defendants from enforcing a consumers' sales tax of one per cent under the terms of an ordinance adopted by the City of Huntington on the 15th day of July, 1936. The defendants appeared and filed their demurrer to the bill of complaint which was overruled, and, upon the joint application of the parties, the trial chancellor certified to this court the questions arising upon the sufficiency of the bill.

The ordinance before us is in all essential respects the same as the ordinance of the City of Bluefield that was before this court in the case of Kresge Co. v. City of Bluefield, 117 W. Va. 17, 183 S. E. 601. As in the Bluefield case, the tax to be collected under the ordinance is "for the privilege of engaging in the business of selling tangible personal property at retail, and of dispensing certain selected services defined in section 6 of this ordinance * * *." It is not contended here, however, as it was in the Bluefield case, that this language brings the tax provided for in the ordinance within the definition of license taxes that the city is authorized by its charter to lay. The main contention in this case is that the city is authorized to lay a consumers' sales tax under the terms of section 6 of chapter 161 of the Acts of the Second Extraordinary Session of 1933 (the charter of the City of Huntington) granting to the city, among other powers, the power "to provide revenue for the city and appropriate the same to its expenses." The further contention is advanced in justification of the ordinance that Code, section 10, article 4, chapter 8, as amended by chapter 66 of the Acts of the Legislature of 1935, which contains practically the same language as that quoted from the city charter, in any event confers the power in question.

Counsel for the city contend that in order to give any meaning at all to the phrase "to provide revenue for the city," it is necessary to adopt the definition of the word "revenue" as found in Webster's New International Dictionary, which is: "The annual or periodical yield of taxes, excises, customs, duties, rents, etc., which a nation, state or municipality collects and receives into the treasury for the public use; public income of whatever kind." According to this definition of the word and according to the contention of counsel, the legislature has granted to the City of Huntington the right to collect "public income of whatever kind" to the full extent that lay within the legislative power, including the right to provide a consumers' sales tax.

On the other hand, counsel for the plaintiffs contend that since the clause in question as it appears in section 6 of the city charter, immediately follows the enumeration of several specific powers of taxation which are granted to the city, a rule analogous to that of ejusdem generis must be applied and the general clause restricted by the specific enumeration. The language in question is as follows: "* * * to levy taxes on persons, property and licenses; to license and tax dogs and other animals, and regulate, restrain, and prohibit them and all animals and fowls running at large; to provide revenue for the city and to appropriate the same to its expenses; * * *." Counsel point out that to give the clause in question the meaning contended for by the City of Huntington and to say that by the use of the word "revenue" the legislature vested the City of Huntington with the same powers of taxation that it could exercise, robs the specific enumeration of taxing powers contained in this section of the charter of all effect and meaning. Counsel for the City of Huntington reply that to fail to accord to the word "revenue" the meaning they contend for, robs that word of all meaning in this connection.

The position of counsel for the plaintiff is that the specific enumerations of taxing powers granted to the

Sept. 1936] Anderson-Newcomb v. Huntington 719

City of Huntington control the general provision granting the city the power to provide revenue. This construction renders the general clause practically without meaning. The position of counsel for the city is that the general clause grants to the city all of the taxing powers that the legislature could grant to it. This position renders the specific enumerations of taxing power practically meaningless.

It is likely that the truth lies between these divergent constructions, and that the legislature meant,...