Charleston Transit Company v. Condry

86 S.E.2d 391, 140 W. Va. 651

• Court: West Virginia Supreme Court
• Decided: March 18, 1955
• Docket: CC819
• Status: Published

Opinions

Lovins, President:

This declaratory judgment proceeding was instituted in the Circuit Court of Kanawha County by the Charleston Transit Company against Joseph P. Condry, individually and as Commissioner of the Department of Motor Vehicles of the State of West Virginia. The plaintiff and defendant will be hereinafter so designated.

The question at issue here is whether the municipalities of Charleston, South Charleston and St. Albans have a lawful right to levy and collect a seat mile tax or tax in lieu thereof for the operation of passenger buses wholly within the corporate boundaries of the three municipalities, or should such seat mile tax or tax in lieu thereof be paid to the State of West Virginia.

The plaintiff files its petition alleging the facts hereinafter stated. The City of Charleston filed an intervening petition. The defendant demurred h> the petition of the plaintiff. The plaintiff demurred to' an intervening petition of the City of Charleston. The trial court overruled the demurrer of the defendant but refused to rule on the demurrer of the plaintiff to the intervening petition filed by the City of Charleston. Questions arising on the ruling of the trial court on the demurrer of defendant were certified.

The petition of the plaintiff alleges that prior to 1933, it operated a system of electrically propelled trolley cars and occupied a portion of certain streets in the three municipalities with tracks and other appliances. Under the franchise authorizing the operation of the trolley car system, the plaintiff was required to pay certain fees, charges and taxes for the operation of such system.

In 1933 it was apparent that the trolley car system was becoming obsolete and the plaintiff desiring to continue the transportation of passengers by bus, procured the adoption of ordinances in the three municipalities. Such ordinances provided in detail and at some length for the regulation and operation of the buses substituted for trolley cars. Such ordinances provided for the gradual abandonment of the trolley car operation.

The Cities of Charleston, St. Albans and the Town of South Charleston, by ordinances duly adopted on the 24th day of May, 1937, the 23rd day of January, 1939, and about the 28th day of April, 1939, permitted the abandonment of the transportation of passengers by electrically propelled trolley cars and authorized the plaintiff to substitute buses for such purposes. Such ordinances provided for the payment of certain fees, charges and taxes on the basis of a seat mile tax or tax in lieu thereof. Since the year 1939, the three municipalities above mentioned, have permitted the operation of buses for passenger transportation and collected the tax provided for in the respective ordinances.

By a memorandum dated January 6,1954, and addressed to all holders of certificates of authority for the transportation of property or persons for hire, the defendant made demand for the payment of all passenger seat mile tax and registration fees from that date to the Department of Motor Vehicles and directed that passenger seat mile tax and registration fees should be paid to that Department, regardless of the fees which might then, or in the future, be paid to the various municipalities in the State of West Virginia.

The defendant based his demand upon an opinion of the Attorney General of this State dated January 5, 1954, advising him that Section 13, Article 10, of that part of Chapter 129, Acts of the Legislature, 1951, Regular Session, designated as Chapter 17-A, is contrary to the Constitution of this State.

Subparagraph 4, Section 3, Article 10 of Chapter 129, idem, provides in part that, “* * * For transportation of passengers there shall be paid one-thirtieth of a cent for each passenger seat multiplied by the total number of miles that will be traveled over any public highway in this state, or over any streets or alleys within any municipality in this state, by such motor vehicles during the quarter year. * *

That portion of the statute which the Attorney General characterized as unconstitutional in his opinion reads as follows: “The holders of a certificate of convenience and necessity authorizing the transportation of property or person for hire wholly within any incorporated city or town and within its adjacent suburban area not exceeding three miles distant from the city boundary shall pay the fees and passenger seat tax provided for in this article, as. to such operation wholly within such city or town to such city or town instead of to the department of motor vehicles, provided that any such city or town may collect the fee or tax for the operation wholly within such city or town in lieu of but not greater than the fees and taxes provided in this article.”, Section 13, Article 10, of that part of Chapter 129, Acts of the Legislature, 1951, Regular Session, designated as Chapter 17-A. The statute just quoted is similar to a portion of Section 7, Chapter 60, Acts of the Legislature, 1933, Extraordinary Session.

The pertinent portion of Section 7, Chapter 60, idem, was before this Court in Transport Corp. v. Wheeling, 115 , 175 S. E. 219. In that case, in discussing the statute, this Court uses the following language: “Section 7 provides: Tf the proposed operation be wholly within an incorporated city of more than eight thousand population, or design to serve any such city, and its adjacent suburban area, not exceeding three miles distant from the city boundary, then in such case the fees or passenger seat tax provided in section nine and seventeen of this article, as to such operation wholly within such city, shall accrue to and be paid to' such city or town instead of the commissioner; and any such city or town may by public ordinance fix, charge and collect a fee or tax for the operation within the city or town in lieu of, but not greater than, the fee charged in sections nine and seventeen hereof.’ In view of the foregoing, we are of opinion that the city of Wheeling is restricted to the authority conferred by section 7 of the Act in requiring mileage tax on motor vehicles operating over its streets and alleys and that the provision of the ordinance requiring mileage tax on all motor vehicles operating over regular routes or between fixed termini is invalid.” The case of Transport Corp. v. Wheeling, supra, was decided before the adoption of Section 52, Article VI of our Constitution, which reads as follows: “Revenue from gasoline and other motor fuel excise and license taxation, motor vehicle registration and license taxes, and all other revenue derived from motor vehicles or motor fuels shall, after the deduction of statutory refunds and cost of administration and collection authorized by legislative appropriation, be appropriated and used solely for construction, reconstruction, repair and maintenance of public highways, and also the payment of the interest and principal on all road bonds heretofore issued or which may be hereafter issued for the construction, reconstruction or improvement of public highways, and the payment of obligations incurred in the construction, reconstruction, repair and maintenance of public highways.

The defendant relies on Section 52, Article VI, above quoted, as well as Section 6, Article X of the Constitution, which reads as follows: “The credit of the State shall not be granted to, or in aid of any county, city, township, corporation or person; nor shall the State ever assume, or become responsible for the debits or liabilities of any county, city, township, corporation or person; nor shall the State ever hereafter become a joint owner, or stockholder in any company or association in this State or elsewhere, formed for any purpose whatever.”

The grounds of demurrer assigned by the defendant are: That municipalities are not authorized to levy or collect any of the taxes authorized by Article 10 of that part of Chapter 129, Acts of the Legislature, 1951, Regular Session, designated as Chapter 17-A, or any tax in lieu thereof, for the reason: (a) That that portion of Article 10, idem, violates Section 52, Article VI of the Constitution of this State, (b) that the payment to the municipalities of any of the fees or tax imposed or required by Article 10, idem, or any tax in lieu thereof, or other tax imposed or paid in lieu thereof, violates Section 6, Article X of the Constitution.

The trial court overruled the demurrer to the petition as stated above. In a memorandum of opinion made a part of the record, the trial court held that the funds paid to the municipalities should be allocated and used for street purposes.

Upon such ruling, the trial court certified the following questions to this Court: “1. The payment to the municipalities mentioned therein of any of the fees, or taxes, imposed or required by Chapter 17A, Article 10 of the Code of West Virginia, 1931, as amended, [Chapter 129, Acts of the Legislature, 1951, Regular Session], or the payment to the municipalities of an amount in lieu of the fees, or other taxes imposed or required by the above-mentioned section of the Code, is in violation of Article VI, Section 52 of the Constitution of West Virginia. 2. The payment to the municipalities mentioned therein of any of the fees, or taxes, imposed or required by Chapter 17A, Article 10 of the Code of West Virginia, 1931, as amended, [Chapter 129, Acts of the Legislature, 1951, Regular Session] or the payment to the municipalities of an amount in lieu of the fees, or other taxes imposed or required by the above-mentioned section of the Code, is in violation of Article X, Section 6 of the Constitution of West Virginia.”

The trial court however did not rule on the demurrer of plaintiff to the intervening petition of the City of Charleston and any question raised on such demurrer is not before us.

The plaintiff, in brief and argument, raises a number of questions as bearing on the questions certified, viz: (a) That even though the Constitution is applicable to municipalities, there is no requirement that municipal ordinances contain a provision requiring allocation of funds derived from such taxes to be used and appropriated for street and highway purposes; (b) that a provision requiring such allocation should be read into the ordinance passed by the three municipalities if necessary to sustain their constitutionality; (c) that this Court in construing Section 13, Article 10, Chapter 129, idem, should consider Section 13, even though it may be held unconstitutional.

We do not think that any of the foregoing subsidiary questions require discussion. The conclusion we reach on the questions certified obviates discussion and determination of such questions.

We are authorized to notice and discuss questions which fairly arise upon the record. Baier v. City of St. Albans, 128 W. Va. 630, 637, 39 S. E. 2d 1.

We prefer to decide the questions certified upon the constitutionality of Section 13, Article 10, of that part of Chapter 129, Acts of the Legislature, 1951, Regular Session, designated as Chapter 17-A. Section 13, Article 10, Chapter 129, idem, is a clear, definite, certain statement of legislative intent and requires no construction or interpretation. The legislative intent, as indicated by such statute, is clear in that it permits the municipalities to impose and collect a seat mile tax or tax in lieu thereof for the operation of passenger buses wholly within the corporate boundaries. No authority will be found in Article 10, Chapter 129, idem, for the collection by the state and payment into the state treasury of the funds derived from taxes assessed on the intra-urban operations of passenger buses. If Section 13, idem, is a valid legislative enactment, the taxes must be paid to and used by the municipalities, and the authorities of this state have no concern in the levy or collection of such tax on intra-urban operation of passenger buses.

Is Section 13, Article 10 of Chapter 129, idem, violative of Section 52, Article VI and Section 6, Article X of the Constitution of this State? Before specifically passing on those questions, it is necessary to say that Section 9, Article X of the Constitution confers upon the Legislature power to authorize the authorities of the cities, towns and villages to assess and collect taxes within their territorial jurisdiction. The three provisions of the Constitution here considered should be read together. Section 9, Article X, of our Constitution reads as follows: “The Legislature may, by law, authorize the corporate authorities of cities, towns and villages, for corporate purposes, to assess and collect taxes; but such taxes shall be uniform, with respect to persons and property within the jurisdiction of the authority imposing the same.”

Section 52, Article VI, of the Constitution has been given a contemporaneous construction or interpretation for ten years or more by the people and the courts. We do not feel that we should disturb or overthrow it since such construction or interpretation is not plainly wrong. State v. Harden, 62 W. Va. 313, 323, et seq., 60 S. E. 394. See Simms v. County Court, 134 W. Va. 867, 61 S. E. 2d 849. The same principle is likewise applied to statutes, though as above noted, the construction of the statute is not involved here. See Brandon v. Board of Control, 84 W. Va. 417, 100 S. E. 215; Ballard v. Vest, 136 W. Va. 80, 65 S. E. 2d 649; State v. County Court of Kanawha County, 137 W. Va. 127, 70 S. E. 2d 260; Fidelity Mut. Life Ins. Co. v. Sims, 140 W. Va. 49, 82 S. E. 2d 312.

There is another appropriate principle of constitutional law, long established- and followed in this jurisdiction. Statutes will not be held violative of the Constitution except in the clearest cases and where it is necessary to a decision of the controversy. Bridges v. Shallcross, 6 W. Va. 562, 569, et seq. “Unless the question is free from doubt, it is the duty of the courts to uphold legislative acts as constitutional.”, Booten v. Pinson, 77 W. Va. 412, 428, 89 S. E. 985. See Road Commission v. County Court, 112 W. Va. 98, 163 S. E. 815; Cosner v. See, 129 W. Va. 722, 42 S. E. 2d 31. Lingamfelter v. Brown, 132 W. Va. 566, 573, 52 S. E. 2d 687.

As cogently pointed out by an eminent writer on the question of constitutional law, provisions contained in a Constitution should be applied by the courts according to thve common understanding and everyday requirements of life, since the people who voted for it must have so understood it. “The people make them, [constitutions] the people adopt them, the people must be supposed to read them, with the help of common-sense, and cannot be presumed to admit in them any recondite meaning or any extraordinary gloss.” 1 Story on the Constitution, Fifth Edition, Section 451.

When the language used in Section 52, Article VI of the Constitution is considered, it is persuasive that such Section applies only to the state funds and the use and appropriation thereof by the legislature rather than by municipal councils. Such words as “statutory refunds”, “legislative appropriation” and “appropriation” are found in Section 52, Article VI of the Constitution. Those words may be applied to actions by common council but common understanding and acceptation confines such terms to the state legislature rather than municipal offices. See II Am. Jur., Constitutional Law, Section 79. We think that the purpose of the people of this state in adopting Section 52, Article VI of the Constitution, was to prevent diversion by the legislature of funds derived from the sources named in the constitutional provision to purposes other than the construction, reconstruction, repair and maintenance of public highways; and the payment of interest and principal on road bonds theretofore or thereafter issued.

It is well known that for many years it has been the practice of municipalities of this State to levy taxes connected with the use of streets other than seat mile taxes or tax in lieu thereof. This practice has prevailed before and since the adoption of Section 52 of Article VI of the State Constitution. We do not think that the people of this State, by the adoption of such constitutional provision intended to innovate upon or change that practice.

Since Section 52, Article VI, of the Constitution, does not in terms apply to municipal taxes or municipal finance, we hold that under the plenary power of the legislature, as well as the direct authority conferred on that body by Section 9, Article X of the Constitution, the enactment of Section 13, Article 10, of that part of Chapter 129, Acts of the Legislature, 1951, Regular Session, designated as Chapter 17-A, is a valid and constitutional exercise of legislative power.

The defendant contends that Section 13, Article 10, Chapter 129, idem, violates Section 6, Article X of the Constitution, in that it extends the credit of the state to municipalities. There is no merit to such contention. The funds raised by the taxes imposed by the municipalities are municipal funds and are not, nor have they ever been, state funds. They never accrued to the state. Hence, it follows that the credit of the state has not been extended to the three municipalities, nor has the state assumed or become responsible for the debts of such municipalities.

Of course, if the funds belonged to the state and were appropriated by the legislature for payment of local debts, Section 6, Article X of the Constitution, would, in all probability, apply and prevent such appropriation, as was held in the case of Charleston v. Sims, 132 W. Va. 826, 54 S. E. 2d 727. See Berry v. Fox, 114 W. Va. 513, 172 S. E. 896.

■ In instances where there is a duty of the state such as was disclosed in the case of Kenny v. Webster County Court, 124 W. Va. 519, 21 S. E. 2d 385, the state may use funds in effectuating that purpose. The same principle was stated in State v. Sims, 129 W. Va. 694, 41 S. E. 2d 506, where the police power of the state, in advancing the cause of public aviation, was invoked.

There is no requirement in the applicable constitutional or statutory provisions requiring that the ordinances passed by the three municipalities levying a seat mile tax or tax in lieu thereof, as authorized by Section 13, Article 10, of that part of Chapter 129, Acts of the Legislature, 1951, Regular Session, designated as Chapter 17-A, be allocated to roads or street purposes. The trial court was in error in its ruling to that effect. The funds derived from seat mile tax or tax in lieu thereof levied by the three municipalities of Charleston, South Charleston and St. Albans may be used by the municipal authorities of the three municipalities for general purposes or for road or street purposes as their discretion may dictate.

Accordingly, the ruling of the trial court holding Section 13, Article 10, of that part of Chapter 129, Acts of the Legislature, 1951, Regular Session designated as Chapter 17-A constitutional, is affirmed. But, insofar as the ruling of the trial court which requires that the named municipalities allocate by ordinances the funds derived from seat mile tax or tax in lieu thereof to street or road purposes, such part of the ruling is reversed.

Affirmed in part; reversed in part.