City of Fairmont v. Pitrolo Pontiac-Cadillac Co.

308 S.E.2d 527, 172 W. Va. 505

• Court: West Virginia Supreme Court
• Decided: October 17, 1983
• Docket: CC935
• Status: Published

Opinions

MILLER, Justice:

The issues in this certified case arose when the City of Fairmont filed suit against Pitrolo Pontiac-Cadillac and Acme Land Company to collect delinquent fire service fees. The defendants sought to defeat the collection by claiming that the City fire service charge was an ad valorem tax and violated the provisions of Section 1 of Article X of the Constitution of West Virginia. While this case was pending in the circuit court, we issued our opinion in Hare v. City of Wheeling, 171 W.Va. 284, 298 S.E.2d 820 (1982), where we said in its single Syllabus:

“Where certain ordinances of the City of Wheeling impose upon owners of property a police service charge based upon the value of property, as determined from the land books and personal property books of the Ohio County Assessor, such ordinances impose, in fact, an ad valorem tax upon property, and where, without regard to the police service charge, property within the City of Wheeling is taxed to the maximum amount permitted under W.Va. Const., art. X, § 1, known as the ‘Tax Limitation Amendment,’ and W.Va.Code, ll-8-6d [1949], such ordinances violate that constitutional provision.”

The circuit court held that the ordinance was unconstitutional under Hare. It also concluded that the ruling in Hare was applicable as against the City’s argument that Hare should not be made applicable to delinquent taxes accruing prior to the date of the Hare opinion. We agree with the circuit court’s decision on both issues.

There is no argument that the maximum levy provisions of Section 1 of Article X relate to ad valorem taxes on real and personal property.¹ Hare, supra; Appalachian Power Company v. The County Court of Mercer County, 146 W.Va. 118, 118 S.E.2d 531 (1961); Bee v. City of Huntington, 114 W.Va. 40, 171 S.E. 539 (1933); Finlayson v. City of Shinnston, 113 W.Va. 434, 168 S.E. 479 (1933).

We are asked to distinguish the Hare case by characterizing the tax in this case as a service fee rather than a property tax. The City argues that Hare did not recognize the distinction between a service fee and a property tax. Because W.Va.Code, 8-13-13, authorizes imposition of fees for municipal services, the City claims that its fire service charge should be sustained as a fee and not as a property tax. Furthermore, the City suggests that there are differences between a fee and a property tax. First, a fee is usually imposed for some specific purpose, and in the present case it is for fire protection. Second, a property tax ordinarily creates a lien and is not enforceable against the taxpayer personally; whereas, a fee does not create a lien and may be enforced personally.

This issue of property tax versus service fee was raised in Hare, although not as extensively argued, and we stated: “The issue before this Court, therefore, is whether the police service charge promulgated by the City of Wheeling was a fee not precluded by the Tax Limitation Amendment, or whether the police service charge was, in fact, an ad valorem tax upon property enacted in violation of the Tax Limitation Amendment.” 171 W.Va. at 288, 298 S.E.2d at 825. We then proceeded to cite Dawson v. Kentucky Distilleries & Warehouse Co., 255 U.S. 288, 41 S.Ct. 272, 65 L.Ed. 638 (1921),² and Hukle v. City of Huntington, 134 W.Va. 249, 58 S.E.2d 780 (1950), to the effect that the character of a tax is determined not by its label but by analyzing its operation and effect, and concluded:

“It is without question that the police service charge in this action is, in fact, an ad valorem tax upon property. The ordinances were imposed upon the owners of property within the City of Wheeling, and the amount to be collected was directly related to the assessed value of that property. Pursuant to Ordinance No. 7278, the value of property for purposes of the ordinances was to be determined from the land books and personal property books of the Ohio County Assessor.” 171 W.Va. at 290, 298 S.E.2d at 826.

When we turn to the pertinent provisions of the City of Fairmont Ordinance No. 524, we believe that the tax is an ad valorem tax and not a service fee. Section 2 of the ordinance imposes and assesses on all residential, commercial, industrial, or other buildings within the city, the amount of fifty-five cents per one hundred dollars of the value of such buildings.³ This section also prescribes the same rate of tax for all tangible personal property, goods, and chattels. The value according to the ordinance is “that as fixed for tax purposes by the Assessor of the County, or by the Board of Public Works of the State.”⁴

Under Section 3 of the ordinance the tax is collected in two semiannual installments.⁵ The first is due. and payable on October 1 and the second on April 1 of each year.⁶ This section further states that the tax “shall be collected in the same manner as municipal taxes are collected under the statutes of the State by the Sheriff of the County.”⁷

The distinction between an ad valorem tax and other taxes has been discussed in a number of cases. In re City of Enid, 195 Okl. 365, 158 P.2d 348 (1945), contains a lengthy review of various authorities which have considered the question and the court concluded:

“In the early case of Society for Savings v. Coite, 73 U.S. 594, 6 Wall. 594, 18 L.Ed. 897, it was pointed out that whenever a property tax was imposed by law, provision was made that the value of the property be ascertained by appraisement and that the tax be assessed upon the appraised value of the property. The essential difference between an ad valo-rem tax and any form of privilege tax is that the ad valorem property tax is based upon the value of the property, tangible or intangible. Pacific Gas & Electric Co. v. Roberts, 168 Cal. 420, 143 P. 700. See, also, Commonwealth v. Columbia Gas & Electric Corporation, 336 Pa. 209, 8 A.2d 404, 131 A.L.R. 927. Other authorities to the same tenor and effect as those hereinabove cited are collected in the following annotations: 89 A.L.R. 1432, 110 A.L.R. 1485, 117 A.L.R. 847, 128 A.L.R. 894, 103 A.L.R. 93. See, also, 26 R.C.L., sec. 19, p. 35; 33 C.J.S., Excise, p. 110.” 195 Okl. at 369, 158 P.2d at 352.

In Callaway v. City of Overland Park, 211 Kan. 646, 651, 508 P.2d 902, 907 (1973), the court made this distinction:

“The term ‘excise tax’ has come to mean and include practically any tax which is not an ad valorem tax. An ad valorem tax is a tax imposed on the basis of the value of the article or thing taxed. An excise tax is a tax imposed on the performance of an act, the engaging in an occupation or the enjoyment of a privilege. (See 15A Words and Phrases, p. 150.)” (Emphasis added)

The Maryland Supreme Court used this general definition of a property tax in Weaver v. Prince George’s County, 281 Md. 349, 357-58, 379 A.2d 399, 403-04 (1977):

“The consensus of opinion appears to be that a property tax is a charge on the owner of property by reason of his ownership alone without regard to any use that might be made of it, Bromley v. McCaughn, 280 U.S. 124, 136, 50 S.Ct. 46 [47], 74 L.Ed. 226 (1929); Dawson v. Kentucky Distilleries Co., 255 U.S. 288, 294, 41 S.Ct. 272 [275], 65 L.Ed. 638 (1921); Flint v. Stone Tracy Co., 220 U.S. 107, 152, 31 S.Ct. 342 [349], 55 L.Ed. 389 (1911); Herman v. M. & C.C. of Baltimore, 189 Md. [191] at 197, 55 A.2d 491; ...

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“Finally, the property tax and the excise tax may be differentiated by the methods used to impose them and to fix their amount. Thus, it has been held that where a tax is levied directly by the Legislature without assessment and is measured by the extent to which a privilege is exercised by a taxpayer without regard to the nature or value of his assets, it is an excise. Where, however, the tax is computed upon a valuation of the property and is assessed by assessors, and where the failure to pay the tax results in a lien against the property, it is a property tax, even though a privilege might be included in the valuation. Montgomery County, Maryland v. Maryland Soft Drink Association, Inc., 281 Md. 116, 127-28, 377 A.2d 486 (1977); Walker v. Bedford, 93 Colo. 400, 26 P.2d 1051, 1053 (1933); City of De Land v. Florida Public Service Co., 119 Fla. 804, 161 So. 735, 738 (1935). See Society for Savings v. Coite, 73 U.S. (6 Wall) 594, 610, 18 L.Ed. 897 (1868).”

See also Solvang Municipal Improvement District v. Board of Supervisors of Santa Barbara County, 112 Cal.App.3d 545, 169 Cal.Rptr. 391 (1980); Gulf Fertilizer Co. v. Walden, 163 So.2d 269 (Fla.1964); Continental Illinois National Bank and Trust Company of Chicago v. Zagel, 78 Ill.2d 387, 36 Ill.Dec. 650, 401 N.E.2d 491 (1979); Thomas v. City of Elizabethtown, 403 S.W.2d 269 (Ky.1966); Joslin v. Regan, 63 A.D.2d 466, 406 N.Y.S.2d 938 (1978), aff'd, 48 N.Y.2d 746, 422 N.Y.S.2d 662, 397 N.E.2d 1329 (1979); 71 Am.Jur.2d State and Local Taxation § 20 (1973).

Analyzing the ordinance, it is apparent that it closely resembles the general State ad valorem property tax for real and personal property. The City utilizes the assessments made by the county assessor and the State Board of Public Works for the general property tax to determine the value of the property subject to the City’s tax. The tax payments are required to be made semiannually and the due dates are the same as the State property tax. The sheriff is empowered to collect the City tax, the same as the State tax. The rate of tax is fifty-five cents for each one hundred dollars of value which is based on the traditional ad valorem property tax concept, the value of the property. The only difference is that under the State act a lien is imposed on real property for the taxes assessed. W.Va.Code, 11A-1-2. A State statute⁸ provides as does the ordinance⁹ that delinquent taxes are debts that may be sued upon.

We do not view the absence of a provision for a lien right in the ordinance to be controlling in identifying whether the ordinance is a property tax. Nor do we believe that a critical distinction can be made over the fact that only buildings are assessed under the ordinance rather than the entire fee. The essential characteristic of an ad valorem tax, as its name suggests, is that the tax is levied according to the value of the property. Also, assessment on a regular basis is a common characteristic. How or who determines the value of the property is not a critical element in analyzing whether the tax is an ad valorem tax.

The City argues that property owners having buildings are the logical class of users of fire protection and, therefore, the charge being based on the value of their buildings is an eminently fair way of apportioning it for fire service. We have no quarrel with this abstract proposition. If we were dealing with an apportionment issue, the argument would make good sense. The issue here, however, is not one of apportionment.¹⁰ This case involves the question of whether our constitutional limitation on maximum rates for ad valorem property taxes has been exceeded. As in the Hare case, it is admitted that the City is already at the maximum levy rate authorized by W.Va.Code, ll-8-6d, which is the statute allocating to municipalities their maximum share of the levy rates established in Section 1 of Article X of our Constitution.¹¹ Consequently, we are compelled to conclude that no matter how fairly apportioned an ad valorem property tax may be, if its amount exceeds the constitutional levy limits prescribed by Section 1 of Article X of the Constitution of West Virginia, it is void.¹²

An argument is also made that the Hare decision, involving as it did a police service fee, can be distinguished from the fire service charge in the present case by following McCoy v. City of Sistersville, 120 W.Va. 471, 199 S.E. 260 (1938). In note 7 of Hare, we discussed McCoy and several related cases and began by stating: “Prior decisions of this Court have not directly addressed the validity of a municipal ordinance, promulgated pursuant to W. Va. Code, 8-13-13 [1971], in terms of whether such ordinance constituted an ad valorem tax upon property in excess cf the limitations established by the Tax Limitation Amendment.” 171 W.Va. at 288, 298 S.E.2d at 825.

The primary issue in McCoy involved the constitutionality of certain municipal fees including a fire service charge under Section 9 of Article X of our Constitution which requires that municipal statutes shall be uniform.¹³ Most of the ordinance was declared unconstitutional. The fire service charge was held constitutional because the Court found it to be uniform since “the owners of the buildings and chattels may be fairly said to be users of the services provided for their protection.” 120 W.Va. at 478, 199 S.E. at 263. The Court’s discussion of the impact of Section 1 of Article X was at best ambiguous: “If the assessed value were used, and the fee assessed, a serious question would have been raised as to a violation of the limitation amendment.” 120 W.Va. at 478, 199 S.E. at 263.¹⁴

The argument that McCoy can be read to sanction an ad valorem tax on buildings to support a charge for fire services under W.Va.Code, 8-13-13, is unfounded. There can be no question that buildings affixed to the land are a part of the realty and, therefore, can be taxed as real property. Mr. Klean Car Wash, Inc. v. Ritchie, 161 W.Va. 615, 244 S.E.2d 553 (1978); State Road Commission v. Curry, 155 W.Va. 819, 187 S.E.2d 632 (1974); see also Whited v. Louisiana Tax Commission, 178 La. 877, 152 So. 552 (1934). Even in those situations where structures are deemed fixtures, they constitute personal property and are still taxable. Blair v. Freeburn Coal Corporation, 163 W.Va. 23, 253 S.E.2d 547 (1979). The ultimate fact still remains that if the owners of property are required to pay the government a sum based upon the value of the property, this is an ad valorem tax. Once an ad valorem tax is found to exist under a municipal ordinance and the municipality is already at the maximum ad valorem rates prescribed by law, such additional ad valo-rem tax violates Section 1 of Article X of our Constitution.

Finally, the City argues that we should hold that Hare is prospective only thus enabling the City to collect delinquent fire service fees that have accrued before the date of the Hare decision. This we decline to do since the circuit court in the present case found the City’s ordinance to be unconstitutional under Hare — a finding that we have confirmed. We have utilized principles of retroactivity in certain cases when we have created new principles of law which have marked a clear departure from our prior law. E.g., LaRue v. LaRue, 172 W.Va. 158, 304 S.E.2d 312 (1983); Sitzes v. Anchor Motor Freight, Inc., 169 W.Va. 698, 289 S.E.2d 679 (1982); Bond v. City of Huntington, 166 W.Va. 581, 276 S.E.2d 539 (1981); Ables v. Mooney, 164 W.Va. 19, 264 S.E.2d 424 (1979); Bradley v. Appalachian Power Company, 163 W.Va. 332, 256 S.E.2d 879 (1979). These new legal principles have resulted in the main from this Court’s traditional power to create and modify common law principles. We have pointed out that this is a power traditionally exercised by other appellate courts. See Morningstar v. Black and Decker Manufacturing Company, Inc., 162 W.Va. 857, 253 S.E.2d 666 (1979).

However, where a statute or an ordinance is declared unconstitutional, a different rule applies. It is generally held that when a statute or ordinance is declared unconstitutional, it is inoperative, as if it had never been passed. E.g., Shirley v. Getty Oil Company, 367 So.2d 1388 (Ala.1979); Kozlowski v. Kozlowski, 80 N.J. 378, 403 A.2d 902 (1979); Stanton v. Lloyd Hammond Produce Farms, 400 Mich. 135, 253 N.W.2d 114 (1977); Sadler v. Connolly, 175 Mont. 484, 575 P.2d 51 (1978); 16 Am.Jur.2d Constitutional Law § 256 (1979). In Morton v. Godfrey L. Cabot, Inc., 134 W.Va. 55, 63 S.E.2d 861 (1949), we recognized this rule in Syllabus Point 2, which was based on Norton v. Shelby County, 118 U.S. 425, 6 S.Ct. 1121, 30 L.Ed. 178 (1886). In Morton v. Godfrey L. Cabot, Inc., supra, we also recognized the qualification to this absolute rule as set out in Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371, 374, 60 S.Ct. 317, 318, 84 L.Ed. 329, 332-33 (1940), where the United States Supreme Court stated: “It is quite clear, however, that such broad statements as to the effect of the determination of unconstitutionality must be taken with qualifications. The actual existence of a statute, prior to such a determination, is an operative fact and may have consequences which cannot justly be ignored.”

In the present case, we conclude that the City may not proceed to collect delinquent fire service taxes because its ordinance has been found to be unconstitutional.¹⁵

Although we have concluded that the City may not pursue delinquent fire service taxes accruing before the date of Hare, this does not mean that the City is liable to the taxpayers for taxes paid pursuant to the ordinance which has been found to be unconstitutional. The general rule is that, ordinarily, in the absence of any statutory right permitting recovery, a voluntary payment of a tax made under a statute which is later declared unconstitutional cannot be recovered.¹⁶ E.g., Little v. Bowers, 134 U.S. 547, 10 S.Ct. 620, 33 L.Ed. 1016 (1890); Berry v. Daigle, 322 A.2d 320 (Me.1974); State v. Silas, 92 N.M. 434, 589 P.2d 674 (1979); Coca-Cola Company v. Coble, 33 N.C.App. 124, 234 S.E.2d 477 (1977), cert. granted, 293 N.C. 159, 236 S.E.2d 703, aff'd, 293 N.C. 565, 238 S.E.2d 780; Stroop v. Rutherford County, 567 S.W.2d 753 (Tenn.1978); National Biscuit Co. v. State, 134 Tex. 293, 135 S.W.2d 687 (1940); 72 Am.Jur.2d State and Local Taxation § 1087 (1974).

We, therefore, affirm the circuit court’s rulings on the certified questions to the effect that the ordinance is unconstitutional and that the City may not seek to collect its delinquent fire service charges.

Rulings on Certified Questions Affirmed.

1 . The maximum tax limitations contained in Section 1 of Article X are:

"[T]he aggregate of taxes assessed in any one year upon personal property ... shall not exceed fifty cents on each one hundred dollars of value thereon and upon all property owned, used and occupied by the owner thereof exclusively for residential purposes and upon farms occupied and cultivated by their owners or bona fide tenants one dollar; and upon all other property situated outside of municipalities, one dollar and fifty cents; and upon all other such property situated within municipalities, two dollars.”

2 . Dawson v. Kentucky Distilleries & Warehouse Co., supra, is relied on in the present case by the City but, if anything, it seems opposite to the City’s position. The tax in Dawson was "50 cents a gallon upon all whiskey either withdrawn from bond or transferred in bond from Kentucky to a point outside that State.” 255 U.S. at 289, 41 S.Ct. at 273, 65 L.Ed. at 644. Justice Brandéis, speaking for a unanimous court, concluded that it was a property tax since "[t]o levy a tax by reason of ownership of property is to tax the property.” 255 U.S. at 294, 41 S.Ct. at 275, 65 L.Ed. at 646.

3 . The complete text of Section 2 is:

"LEVIED: There is hereby imposed and assessed upon the respective owner of all residential, commercial, industrial or other buildings of every kind and nature regardless of the type or types of construction, situate within the City, the amount of Fifty-Five Cents ($.55) per One Hundred Dollars of the value of such residential, commercial, industrial or other buildings, the value being that as fixed for tax purposes by the Assessor of the County, or by the Board of Public Works of the State, and where no value has been fixed then the value shall be determined and fixed by the Finance Director. In order to determine such value when no value has been fixed for tax purposes as aforesaid, the Finance Director may make or cause to be made such reports, investigations and surveys as may be requisite.

"There is hereby imposed and assessed upon the respective owners of all tangible personal property, goods and chattels located within the City, the amount of Fifty-Five Cents ($.55) per One Hundred Dollars of the value of such personal property, as aforesaid, the value being that as fixed for tax purposes by the Assessor of the County, or by the Board of Public Works of the State, and where no such value has been fixed then the value shall be determined and fixed by the Finance Director, In order to determine such value when no value has been fixed for tax purposes as aforesaid, the Finance Director may make or cause to be made such reports, investigation and surveys as may be requisite.”

The language in this section is essentially the same as contained in the original Ordinance No. 221, except that as to the amount of the tax which has been increased by amendments from an original twenty cents per one hundred dollars of value to the fifty-five cents per one hundred dollar value.

4 . Under the state property tax provisions, county assessors set the value of all real and personal property. W.Va.Code, 11-3-1. See generally Killen v. Logan County Commission, W.Va., 295 S.E.2d 689 (1982). The property of public service corporations is valued by the Board of Public Works. W.Va.Code, 11-6-11.

5 . The complete text of Section 3 is:

"COLLECTIONS: The rate and fees levied and assessed by this Ordinance shall be collected from each user in two semi-annual installments; the first of such installments being due and payable on October 1st of each year and a like installment being due and payable on April 1st of each year. Such rates, fees and rentals imposed, levied and assessed pursuant to this Ordinance shall be collected in the same manner as municipal taxes of the City are collected under the statutes of the State by the Sheriff of the County, provided that the City shall reimburse and pay such Sheriff for the costs of such collections so made; provided further, however, that such rates, fees and rentals as are levied and imposed against property otherwise exempt from taxation, or otherwise not collected by said Sheriff, shall be collected by the City Treasurer.”

6 . Under the State property tax statutes, real and personal property taxes are payable semi-annually by October 1 and April 1 or they become delinquent. W.Va.Code, 11A-1-13.

7 . Under the provisions of W.Va.Code, 11A-1-4, sheriffs of each county are authorized to collect State imposed real and personal property taxes and they must remit the municipalities’ shares under W.Va.Code, 11A-1-15.

8 . W.Va.Code, 11A-2-2, provides:

"Taxes are hereby declared to be debts owing by the taxpayer, for which he shall be personally liable. After delinquency, the sheriff may enforce this liability by appropriate action in any court of competent jurisdiction. No such action shall be brought after five years from the time the action accrued.”

9 . Section 13 of the ordinance states:

"PENALTIES, DISCOUNT: The rates and fees assessed pursuant to the provisions of this Ordinance shall be a debt due the City and may be collected by proceedings instituted in courts of appropriate jurisdiction, or in such manner as provided by West Virginia Code 8-13-15. A penalty of ten per cent (10%) of the rate or fee shall be added for any default for a period of thirty (30) days or less in payment of such rate or fee, and for each succeeding thirty (30) days elapsing thereafter before payment there shall be an additional penalty of one and one-half percent (l‘/2%). Provided, that a discount of two and one-half percent (21/2%) shall be allowed on the first semiannual installment payment due April 1st if paid thirty (30) days prior to the said date each year, and a like discount of two and one-half per cent (2%%) shall be allowed on the second semiannual installment payment due October 1st if paid thirty (30) days prior to the said date each year.”

10 . This was the issue in City of Moundsville v. Steele, 152 W.Va. 465, 164 S.E.2d 430 (1968), where we upheld under W.Va.Code, 8-13-13, a paving fee based on a lineal front foot assessment against the claim that it violated the uniformity provisions of Section 9 of Article X of the Constitution of West Virginia. Such an assessment not being based on value would not violate Section 1 of Article X.

11 . In Hare v. City of Wheeling, 171 W.Va. at 288, 298 S.E.2d at 824, we said:

“In response to the Tax Limitation Amendment [Section 1 of Article X], the West Virginia Legislature enacted W. Va.Code, 11-8-1, et seq. The purpose of that article is generally to provide the maximum rates, within the restrictions of the Tax Limitation Amendment, for levies which may be laid upon property by the various taxing units of the State. Taxing units are defined in W. Va.Code, 11-8-4 [1933], municipalities constituting one such unit. Property is classified for levy purposes by W.Va.Code, 11-8-5 [1961], and the aggregate of taxes imposed upon the different property classifications by the taxing units is established by W. Va.Code, 11-8-6 [1939]. The specific levies permitted to be imposed by each taxing unit, such levies to be within the aggregate levy, is provided by W.Va.Code, ll-8-6a through W. Va.Code, 11-8-7. The maximum levy which may be imposed by municipalities is provided by W. Va.Code, ll-8-6d [1949].” (Footnotes omitted)

12 .Although not an issue here, we recognize that Section 1 of Article X provides for 50% excess levies and that other constitutional provisions also have an impact on the maximum levy rates. W.Va. Const, art. X, §§ 7, 8 & 10.

13 . Section 9 of Article X states:

“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.”

14 . The full text on this issue from McCoy is:

"The ordinance as to fire protection provides for an assessment on buildings and chattels. Giving to the statute, and the ordinance adopted thereunder, a liberal construction, the owners of the buildings and chattels may fairly be said to be the users of the services provided for their protection. True, these assessments are based on the value of the buildings and chattels, but no reference is made to the assessed values on which levies are laid, nor is the entire value of real estate in particular made the basis of the assessment, but only the buildings located thereon. If the assessed value were used, and the fee assessed, a serious question would have been raised as to a violation of the limitation amendment, and as the matter stands, the validity of the assessment as to personal property remains in doubt, the only saving feature being that the assessment as to this class of property is not based on the assessed value for tax purposes. On the whole, we conclude and hold that the proposed ordinance as applied to fire protection should be upheld.” 120 W.Va. at 478, 199 S.E. at 263.

15 . In Blankenship v. Minton Chevrolet, Inc., 164 W.Va. 446, 266 S.E.2d 902 (1979), we dealt with a somewhat related problem, the enforceability of judgments rendered by justices of the peace prior to our decision in State ex rel. Shrewsbury v. Poteet, 157 W.Va. 540, 202 S.E.2d 628 (1974). In State ex rel. Shrewsbury v. Poteet, supra, we had held that the justice of the peace fee system created a pecuniary interest in justice. We held in Blankenship v. Minton Chevrolet, Inc., supra, that the judgments entered prior to the date of State ex rel. Shrewsbury v. Poteet, supra, were not void ab initio but voidable. In the present case, it is not prior judgments obtained by the City which are at issue, but its right to continue to prosecute and collect delinquent fire service taxes accruing prior to the date of the Hare opinion.

16 . We are aware of no statute in this State authorizing recovery for payment of municipal taxes under an unconstitutional ordinance.