Killen v. Logan County Commission
This text of 295 S.E.2d 689 (Killen v. Logan County Commission) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinions
McGRAW, Justice:
This case comes to us upon a certified question from the Circuit Court of Logan County. The Logan County Board of Education and its president filed an action there seeking review of a decision by the Logan County Board of Equalization and Review which approved assessment values set by the Logan County assessor. The question certified to this Court is whether W.Va.Code § 18-9A-11 (1977 Replacement Vol.), which allows assessors to value property at 50-100 percent of its appraised value, violates the state constitution’s guarantee of “equal and uniform taxation throughout the State _” W.Va. Const. art. 10, § l.1 The trial court held that the statute was unconstitutional. We affirm that ruling.
The issue in this case is clear. W.Va. Code § 18-9A-11 purports to authorize county assessors to assess property at 50-100 percent of the appraised value determined by the state tax commissioner pursuant to the same statute. Article 10, section 1 of the West Virginia Constitution declares that “taxation shall be equal and uniform throughout the State, and all property, both real and personal, shall be taxed in proportion to its value to be ascertained as directed by law.” (Emphasis added.) The respondents, the Logan County Board of Education and its president, argue that assessment of property at a fraction of its appraised value is unconstitutional because the 50-100 percent provision results in unequal and non-uniform assessment, and thus unequal and non-uniform taxation. The petitioners, individual property owners who intervened in the case below, contend that the 50-100 percent provision represents a legislative recognition that differences of opinion exist as to the value of property. In their view, the statute does not result in percentage assessment. We conclude that the 50-100 percent provision [606]*606does result in fractional assessment and therefore violates article 10, section 1 of the West Virginia Constitution.
I.
It is axiomatic under the American republican form of government that “the representatives of the people must impose the taxes the people are to pay.” 1 T. Cooley, The Law of Taxation § 21 at 84 (4th ed. 1924). This fundamental principle of government comes from England and precedes the American Revolution. It was recognized that imposition of taxes was a legislative power, and the sovereign could not levy taxes except as authorized by the representatives of the realm. Id. “No taxation without representation” subsequently became a rallying cry in the American colonies’ fight for independence from the British crown, as evidenced by the list of grievances set out in the Declaration of Independence. That historic document condemned the British monarchy “[f]or imposing Taxes on us without our Consent.”
The framers of the United States Constitution recognized the fundamental requirement of representative taxation in the organic law of this country when they gave sole authority “to lay and collect taxes” to Congress. U.S.Const. art. I, § 8. Similarly, the West Virginia Constitution vests in the Legislature the power to impose taxes. W.Va.Const. art. 10, §§ 1, 5, and 9. Thus, except as limited by the constitution itself, see, e.g., W.Va.Const. art. 10, §§ la, lb, and 10, the authority to impose general state taxes is a legislative power.
Article 10 of the West Virginia Constitution is both a grant of power to the Legislature to tax and a limitation upon that power. The limitation consists of a specific application of equal protection principles to a particular area of governmental action— taxation. The basic and fundamental premise of the provision is that “equal and uniform taxation” be the rule and not the exception. This requirement is emphasized further by language prohibiting the taxing of one species of property “higher than any other species of property of equal value.” See generally In re Assessment of Kanawha Valley Bank, 144 W.Va. 346, 109 S.E.2d 649 (1959).
Article 10, section 1 further mandates that property subject to taxation be valued as “directed by law.” Thus, the Legislature must prescribe a system or method by which property is valued. Such a system must accomplish the constitutional requirement of “equal and uniform taxation.” These provisions have been fundamental State law since 1863 when the citizens of West Virginia adopted their first constitution.
In 1932, the people amended article 10, section 1 by ratifying what was popularly called the “Tax Limitation Amendment.” That amendment established four classes of property and fixed maximum rates at which each class of property could be taxed. These rates ranged from $.50 to $2 per hundred dollars of valuation depending on the property’s classification.2 The amendment also authorized the Legislature to prescribe rates which could exceed the specific máximums. The people tempered this grant of authority by imposing several conditions on enactment of such “excess” levies. First, additional rates could be imposed for no more than three years at a time. Second, 60 percent of the voters had to approve the levy. Third, the added levy rate could be no more than 50 percent of the maximum rate.3
[607]*607Pursuant to section 1, the Legislature has prescribed the method of valuation and the levy rate for classes of property.4 Over the years, the Legislature has responded to tax reform efforts and to increased revenue needs by enacting a variety of tax statutes. Some relate exclusively to property assessment and taxation while others also deal with financial support of public schools. See, e.g., W.Va.Code §§ 11-1-1 to 11-8-33 (1974 Replacement Vol. & Cum.Supp.1981); 18-9A-1 to -20 (1977 Replacement Vol. & Cum.Supp.1981).
Valuation of property, establishment of the levy rate, determination and payment of taxes and distribution of revenue is a complex process which depends upon private persons and a variety of elected public officials, the duties for all of whom are prescribed by the Legislature, for successful completion. These officials include county assessors, see, e.g., W.Va.Code §§ 11-3-1 to -30; county sheriffs, see, e.g., W.Va.Code §§ 11A-1-1 to -18; and members of local levying bodies, such as county commissioners, city councilmen and school board members. The latter individuals, pursuant to statutory authority, actually fix the levy rate based on the assessment. W.Va.Code §§ 11-8-10, -12, -14. The state tax commissioner has the duty of supervising all of the valuation process. W.Va.Code § 11-1-2; W.Va.Code § 18-9A-11.
The taxation process consists of two important elements: valuation and levying. Valuation is the act of placing a value on each piece of property. This phase of the process is sometimes referred to as assessment. W.Va.Code § 11-3-1. It is the responsibility of the county assessors, beginning with the property owner’s appraisal, to fix the property’s “true and actual value,” subject to executive, legislative and judicial oversight. Executive oversight is provided first by the governor “who shall take care that the laws be faithfully executed,” W.Va.Const. art.
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McGRAW, Justice:
This case comes to us upon a certified question from the Circuit Court of Logan County. The Logan County Board of Education and its president filed an action there seeking review of a decision by the Logan County Board of Equalization and Review which approved assessment values set by the Logan County assessor. The question certified to this Court is whether W.Va.Code § 18-9A-11 (1977 Replacement Vol.), which allows assessors to value property at 50-100 percent of its appraised value, violates the state constitution’s guarantee of “equal and uniform taxation throughout the State _” W.Va. Const. art. 10, § l.1 The trial court held that the statute was unconstitutional. We affirm that ruling.
The issue in this case is clear. W.Va. Code § 18-9A-11 purports to authorize county assessors to assess property at 50-100 percent of the appraised value determined by the state tax commissioner pursuant to the same statute. Article 10, section 1 of the West Virginia Constitution declares that “taxation shall be equal and uniform throughout the State, and all property, both real and personal, shall be taxed in proportion to its value to be ascertained as directed by law.” (Emphasis added.) The respondents, the Logan County Board of Education and its president, argue that assessment of property at a fraction of its appraised value is unconstitutional because the 50-100 percent provision results in unequal and non-uniform assessment, and thus unequal and non-uniform taxation. The petitioners, individual property owners who intervened in the case below, contend that the 50-100 percent provision represents a legislative recognition that differences of opinion exist as to the value of property. In their view, the statute does not result in percentage assessment. We conclude that the 50-100 percent provision [606]*606does result in fractional assessment and therefore violates article 10, section 1 of the West Virginia Constitution.
I.
It is axiomatic under the American republican form of government that “the representatives of the people must impose the taxes the people are to pay.” 1 T. Cooley, The Law of Taxation § 21 at 84 (4th ed. 1924). This fundamental principle of government comes from England and precedes the American Revolution. It was recognized that imposition of taxes was a legislative power, and the sovereign could not levy taxes except as authorized by the representatives of the realm. Id. “No taxation without representation” subsequently became a rallying cry in the American colonies’ fight for independence from the British crown, as evidenced by the list of grievances set out in the Declaration of Independence. That historic document condemned the British monarchy “[f]or imposing Taxes on us without our Consent.”
The framers of the United States Constitution recognized the fundamental requirement of representative taxation in the organic law of this country when they gave sole authority “to lay and collect taxes” to Congress. U.S.Const. art. I, § 8. Similarly, the West Virginia Constitution vests in the Legislature the power to impose taxes. W.Va.Const. art. 10, §§ 1, 5, and 9. Thus, except as limited by the constitution itself, see, e.g., W.Va.Const. art. 10, §§ la, lb, and 10, the authority to impose general state taxes is a legislative power.
Article 10 of the West Virginia Constitution is both a grant of power to the Legislature to tax and a limitation upon that power. The limitation consists of a specific application of equal protection principles to a particular area of governmental action— taxation. The basic and fundamental premise of the provision is that “equal and uniform taxation” be the rule and not the exception. This requirement is emphasized further by language prohibiting the taxing of one species of property “higher than any other species of property of equal value.” See generally In re Assessment of Kanawha Valley Bank, 144 W.Va. 346, 109 S.E.2d 649 (1959).
Article 10, section 1 further mandates that property subject to taxation be valued as “directed by law.” Thus, the Legislature must prescribe a system or method by which property is valued. Such a system must accomplish the constitutional requirement of “equal and uniform taxation.” These provisions have been fundamental State law since 1863 when the citizens of West Virginia adopted their first constitution.
In 1932, the people amended article 10, section 1 by ratifying what was popularly called the “Tax Limitation Amendment.” That amendment established four classes of property and fixed maximum rates at which each class of property could be taxed. These rates ranged from $.50 to $2 per hundred dollars of valuation depending on the property’s classification.2 The amendment also authorized the Legislature to prescribe rates which could exceed the specific máximums. The people tempered this grant of authority by imposing several conditions on enactment of such “excess” levies. First, additional rates could be imposed for no more than three years at a time. Second, 60 percent of the voters had to approve the levy. Third, the added levy rate could be no more than 50 percent of the maximum rate.3
[607]*607Pursuant to section 1, the Legislature has prescribed the method of valuation and the levy rate for classes of property.4 Over the years, the Legislature has responded to tax reform efforts and to increased revenue needs by enacting a variety of tax statutes. Some relate exclusively to property assessment and taxation while others also deal with financial support of public schools. See, e.g., W.Va.Code §§ 11-1-1 to 11-8-33 (1974 Replacement Vol. & Cum.Supp.1981); 18-9A-1 to -20 (1977 Replacement Vol. & Cum.Supp.1981).
Valuation of property, establishment of the levy rate, determination and payment of taxes and distribution of revenue is a complex process which depends upon private persons and a variety of elected public officials, the duties for all of whom are prescribed by the Legislature, for successful completion. These officials include county assessors, see, e.g., W.Va.Code §§ 11-3-1 to -30; county sheriffs, see, e.g., W.Va.Code §§ 11A-1-1 to -18; and members of local levying bodies, such as county commissioners, city councilmen and school board members. The latter individuals, pursuant to statutory authority, actually fix the levy rate based on the assessment. W.Va.Code §§ 11-8-10, -12, -14. The state tax commissioner has the duty of supervising all of the valuation process. W.Va.Code § 11-1-2; W.Va.Code § 18-9A-11.
The taxation process consists of two important elements: valuation and levying. Valuation is the act of placing a value on each piece of property. This phase of the process is sometimes referred to as assessment. W.Va.Code § 11-3-1. It is the responsibility of the county assessors, beginning with the property owner’s appraisal, to fix the property’s “true and actual value,” subject to executive, legislative and judicial oversight. Executive oversight is provided first by the governor “who shall take care that the laws be faithfully executed,” W.Va.Const. art. 7, § 5. The governor appoints the tax commissioner who must furnish the assessor with property appraisals, and must correct all incorrect assessments when county officials refuse to comply with the law.5 W.Va.Code § 18-9A-11. Legislative oversight occurs through the Legislature’s ultimate control of the assessor’s and county commissioners’ duties. Judicial oversight occurs through opportunities for de novo determination of assessment value, W.Va.Code § 11-3-25, as well as for judicial review of actions taken by Boards of Equalization and Review. Id.
Levying is the establishment and application of a rate of taxation upon the valuation of property, the result being the determination of the amount of the tax owed. For example, with the sales tax, the valuation is the amount of purchase. The levy rate is 5 cents per dollar. Thus, the tax on a five-dollar purchase (valuation) is 25 cents (5 cents X $5). In property taxa[608]*608tion, the levy rate is the total amount set by the various levying bodies: the state,6 county commissions, local school boards, and municipalities.
The valuation-levying process begins with the assessment of property. The state constitution provides that each county may elect not more than two assessors. W.Va. Const, art. 9, § 1. The duties of assessors are prescribed by statute. W.Va. Code § 11-3-1 directs that assessors “assess” property yearly as of July 1 at its “true and actual value.” The Legislature has defined true and actual value to mean “the price for which such property would sell if voluntarily offered for sale by the owner .... ” Id.
The first step in the valuation process is a democratic exercise in which each taxpayer swears what he deems to be the “true and actual value” of his property. W.Va. Code § 11-3-2 mandates that assessors “shall call upon every person in the territory” 7 subject to taxation. Assessors must furnish each taxpayer with a form to list all real and personal property and the “true and actual value” of such property. The property owner must swear to the accuracy of this listing. W.Va.Code §§ 11-3-4, -12. Failure to complete the listing and valuation of property may result in a monetary fine, payment of back taxes, and loss of standing to contest assessments made by county or state officials.8 W.Va.Code § 11-3-10.
To ensure citizen participation, it is the duty of each county commission to provide the necessary personnel to see that every taxpayer is called upon by the county assessor or deputies.9 If the county commission fails to provide the assessor with sufficient staff to complete this initial valuation, see generally W.Va.Code §§ 11-2-3, -4, the tax commissioner is empowered by statute to appoint special assessors to complete the task. W.Va.Code § 11-3-1. As provided by statute, the county commission must pay the salaries of such special assessors. Id. The self-valuation of property by taxpayers is designed to ensure democratic participation in the taxation process and to avoid oppressive government practices.
The state constitution and the state code clearly contemplate that the assessor and his deputies shall possess the necessary qualifications to appraise and assess property. The use of the term “assessor” implies that such officials possess special knowledge and capacity to appraise property and to assign a market value to it. Without such expertise, accurate valuation of property cannot occur.
The Legislature has given county assessors from July 1 to January 30 of the next ensuing year to complete the assessment of each item of property. Valuations given by the property owner for the guidance of the assessor may be considered by the assessor as evidence “to settle and determine” the actual value of each item of property.” Id. The assessor must complete his assessment and deliver the county property books containing assessment values to the county commission, sitting as the Board of Equalization and Review, by February 1. W.Va.Code § 11-3-19. During the month of February, the commission must review the assessments to determine if they are at “true and actual value.” [609]*609W.Va.Code § 11-3-24. Individual property owners may appear before the commission to protest their assessments or those of other taxpayers. W.Va.Code § 11-3-24; Tug Valley Recovery Center, Inc. v. Mingo County Commission, 164 W.Va. 94, 261 S.E.2d 165 (1979). A majority of commissioners must certify that the annual assessment of property at true and actual value has been completed by February 28. W.Va.Code § 11-3-24.
The next step is for the assessor to total the assessed property valuations per class of property and certify them to all levying bodies in the county. W.Va.Code § 11-3-6. This must be done by March 7. Id. The levying bodies must meet between March 7 and March 28 to determine their fiscal condition and to set a levy rate which will produce sufficient revenue to meet oncoming financial requirements. Once estimates have been developed, the bodies meet in April to hear objections to either the proposed estimate of financial need or the proposed levy rate. W.Va.Code §§ 11-8-10a, -12a, -14a. After considering any objections by any person, the levying bodies must approve both an estimate of needed revenue and a levy rate. Id.
Actual collection of taxes begins when the levying bodies transmit the levy rates to the assessor. The rates are then applied to the property valuations by the assessor and the amount of tax owed then is determined. W.Va.Code §§ 11-8-11, -13, -15; W.Va.Code § 11-3-19. By June 7, the assessor must deliver the property books, complete with the amount of tax owed, to the county sheriff. W.Va.Code § 11-3-19. The sheriff must begin tax collection by July 15, twelve and one-half months after the first day of the valuation period. W.Va.Code § 11A-1-6 (1974 Replacement Vol.). Property owners may pay taxes in two installments — September 1 and March 1, — with the latter date being 21 months after the first day of the property valuation period.
Much of the revenue produced from property taxes is used to finance public schools. Therefore, statutory provisions relating to public school financing have overlapped into property taxation and have led directly to this case. In 1958, the Legislature adopted article 9A of chapter 18 of the West Virginia Code relating to public school financing. Section 11 of article 9A provides for computation of a county’s local share of school funding and contains provisions relating to the appraisal and assessment of property. The statute requires the state tax commissioner to appraise all nonutility real and personal property in each county based on its “true and actual value.” W.Va.Code § 18-9A-11. This appraisal presumably was completed by 1967 and thereafter was updated yearly.10
After an appraisal has been completed for a class of property in a county, the state tax commissioner must furnish the appraisal to the county assessor and county commissioners for use in the determination of assessed values. Id.; see also Tug Valley Recovery Center, Inc. v. Mingo County Commission, supra. Once the assessor has determined the assessed values, he must forward them to the tax commissioner for comparison with the commissioner’s appraisal figures. The specific issue in this case is triggered under this statutory arrangement because W.Va.Code § 18-9A-11 purports to allow assessors to comply with the “true and actual value” requirement of W.Va.Code § 11-3-1 so long as their assessment totals, per class, are within 50 percent of the tax commissioner’s appraisal values.11
II.
With this constitutional and statutory background established, we now consider the events which led to this case. In Feb[610]*610ruary, 1981, the Logan County Commission, sitting as a Board of Equalization and Review pursuant to W.Va.Code § 11-3-24, approved assessment values for the 1980 assessment year. These values had been entered on the property books by the county assessor as the “true and actual value” of property in Logan County. Ray Killen, president of the Logan County Board of Education and a party to this action, objected to the values proposed by the assessor. He asked the Board of Equalization and Review to utilize appraisal figures calculated by the state tax commissioner as assessment values rather than those submitted by the assessor. Use of these appraisals would have increased the total valuation of property in the county. Killen claimed that the assessor had under-valued property in Logan County; therefore, the values suggested by the assessor did not comply with the “true and actual value” requirement of W.Va.Code § 11-3-1 or with the provisions of article 10, section 1 of the West Virginia Constitution which require equal and uniform taxation according to value.
The Board of Equalization and Review approved the assessor’s valuations over Killen’s objections and the school board president sought judicial review in circuit court pursuant to W.Va.Code § 11-3-25.12 Killen named the county commission and the three county commissioners as respondents in the action. At this time, individuals with extensive land and other property interests in the county (hereafter referred to as the taxpayers) intervened in the case on the side of the Logan County Commission.13
At trial, the parties agreed to certain facts surrounding property assessments in Logan County. First, they agreed that assessed valuations per class fell within the 50-100 percent range allowed by W.Va. Code § 18-9A-11. Second, they stipulated that the ratio of assessed-to-appraised valuation varied with individual property owners, and varied from the ratio of the total assessed valuations to the total appraised valuations per class of property. Third, the parties agreed that the tax commissioner’s appraisals were based on information obtained in earlier years and differed according to the type of property.14 Fourth, they stipulated that the ratio of appraised-to-assessed value for a particular class of property varied in different counties.
On cross-motions for summary judgment, the lower court ruled that W.Va. Code § 18-9A-11 was unconstitutional because assessment of property at a fraction of its actual value violated the requirement of equal and uniform taxation contained in article 10, section 1. Also, the trial court [611]*611concluded that both W.Va.Code §§ 11-3-1 and 18-9A-11 mandated assessment at true and actual value. However, the court interpreted the provisions of W.Va.Code § 18-9A-ll, which permits up to a 50 percent discrepancy between appraised and assessed values, as merely a measurement of determining when a county had failed to carry out its responsibilities in funding schools or when an assessor and other county officials had failed to perform their duties. Thus, suggests the opinion of the lower court, the statute could be read as not authorizing fractional assessment.15 The trial court, however, refused to adopt the tax commissioner’s appraisals as the assessment values, despite finding that the Legislature had designed W.Va.Code § 18-9A-11 as a method of ensuring uniform statewide valuation. See Pauley v. Kelly, 162 W.Va. 672, 255 S.E.2d 859, 881 (1979). The lower court offered to conduct de novo hearings to determine the “true and actual value” of the taxpayers’ property. The lower court then certified the following question to this Court pursuant to W.Va.Code § 58-5-2 (1966):
Does Chapter 18, Article 9(A), Section 11 of the Code of West Virginia, insofar as it provides that the total assessed valuation in each of the four (4) classes of property shall not be less than fifty percent (50%) nor more than one hundred percent (100%) of the Tax Commissioner’s appraised valuations of each of said classes of property, violate Article X, Section 1 of the Constitution of the State of West Virginia, and therefore, is unenforceable and invalid?
III.
To resolve the issue presented in this case, it is necessary to define “value” as that term is used in article 10, section 1 of the state constitution. That provision requires taxation of property according to its value to be ascertained as directed by law.” To determine the meaning of “value,” we have looked to the four traditional sources of judicial definitions of words used in statutes and constitutions, but not specifically defined in them. These are: (1) dictionary definitions; (2) pronouncements by courts; (3) reliable extra-judicial commentary; and (4) definitions set or inferrable from debates and proceedings of the legislative bodies that drew the documents. Pauley v. Kelly, supra.
We have consulted numerous dictionaries with regard to the meaning of “value.” The result is unanimous. Prom the time of Dr. Samuel Johnson and his first English language dictionary, value has meant the property’s “worth” in terms of what sale of the property would bring on an open market. S. Johnson, Dictionary of the English Language (1st ed. 1755); S. Johnson, Dictionary of the English Language 992 (9th ed. 1805); J. Barclay, Complete and Universal English Dictionary 946 (1815); N. Webster, American Dictionary of the English Language 989 (15th ed. 1838); 12 The Oxford English Dictionary 29-30 (1933); W. Neilson, T. Knott, P. Carhart, Webster’s New International Dictionary of the English Language 2814-15 (2d ed. 1941); D. Guralnik, Webster’s New World Dictionary 1568 (2d college ed. 1980); E. Ehrlich, S. Plexner, G. Carruth, J. Hawkins, Oxford American Dictionary 767 (1980).
This definition of “value” is reflected in early statutes adopted in Virginia and later in West Virginia. In 1819, the Virginia Legislature enacted a statute directing assessors to value land at its “market price.” Va.Code ch. 54, § 6 [1819]. Statutory provisions enacted after 1819 make specific references to assessment at value. See, e.g., Va.Code ch. 35, § 20 [1849]. The first West Virginia assessment statute was modeled after these Virginia statutes. Consequently, it referred to assessment at value. 1863 W.Va.Acts. ch. 155. Subsequent amendments to that statute reinforce “market value” as the definition of value. In 1866, the Legislature ordered a reassessment of all real property in the state. [612]*612Property was to be assessed at “the fair cash value thereof in current money.” 1866 W.Va.Acts ch. 33 (emphasis added). Also, the Legislature directed that individuals making the assessments had to certify them as the “fair cash value” of property. In 1868, the Legislature amended the statute with regard to appeals of assessments. The amendment provided that “no reduction shall be made in the assessed value of any such lands until the owner thereof files ... an affidavit stating the actual cash value thereof, and in no case, shall the assessments be reduced below the actual cash value.” W.Va.Code ch. 129 [1868]. In 1904, when the Legislature adopted the forerunner of W.Va.Code § 11-3-1, the redundant adjectives “true and actual” appeared for the first time, emphasizing the constitutional meaning of “value.” 1904 W.Va.Acts ch. 4, § 12. These provisions clearly show that value means the current “worth” of property in the open market.16
Case law, both in West Virginia and in other jurisdictions, reflects the common perception that value means worth. In Chesapeake and Ohio Railway Co. v. Miller, 19 W.Va. 408 (1882), the state auditor had assessed the railroad’s property statewide and levied taxes on it.17 The railroad company claimed that a state statute exempted its property from taxation until the company earned a 10 percent annual rate of return on capital. The Court ruled that article 10, section 1 of the state constitution required all property to be taxed in an equal and uniform manner according to value.
Thus, as early as 1882, 100 years ago, this Court determined that the state constitution requires all property to be taxed at its worth. When property is assessed at less than its market value, only a portion of that value is being taxed. In effect, the remaining portion is exempted from taxation. Thus, exemption of partial value (fractional assessment) is in reality partial exemption of property from taxation. As the Court declared 100 years ago,
it was the intent of the framers of the Constitution to declare in most explicit terms that all property in the state should bear its equal share of the burden of Government, and there should be no property excepted from taxation, unless it was specifically excepted in the Constitution itself.
Id. at 435 (emphasis in original).
In another early West Virginia case, this Court defined taxable value as “fair cash valuation.” State v. Low, 46 W.Va. 451, 458, 33 S.E. 271, 274 (1899). Our decisions involving requests for reduction of assessments to a percentage of market value all imply that value equals the property’s worth. See, e.g., In re United States Steel Corp., 165 W.Va. 373, 268 S.E.2d 128 (1980) (reduction of assessment from 100 percent of value to prevailing percentage granted).
Outside West Virginia, several jurisdictions have defined “value,” as used in constitutional taxation provisions, to mean market value. For example, in Arkansas Public Service Commission v. Pulaski County Board of Equalization, 266 Ark. 64, 582 S.W.2d 942 (1979), the Arkansas public service commission had ruled that the Arkansas constitution permitted different treatment of varying types of property. The county board of equalization sought statewide assessment based on the property’s market value. The Arkansas Supreme Court interpreted the use of the word “value” in a constitutional provision strikingly similar in content to West Virginia’s as meaning market value.18 Id. at 73, 582 [613]*613S.W.2d at 945. See also State ex rel. Park Investment Co. v. Board of Tax Appeals, 175 Ohio St. 410, 412, 195 N.E.2d 908, 910, cert. denied, 379 U.S. 818, 85 S.Ct. 35, 13 L.Ed.2d 29 (1964) (“In essence, the value of property is the amount of money for which it may be exchanged, i.e., the sales price.”); Parker City v. Spindletop Oil and Gas Co., 612 S.W.2d 944 (Tex.Civ.App.1981).
The role valuation plays in the taxation process reinforces the necessity of defining “value” as the property’s market value. Valuation, the determination of value, constitutes realization of the tax base. Without an accurate determination of the tax base, equal and uniform taxation cannot be achieved.
The success of the general property tax depends upon the quality of the assessments. If assessments are very unequal the foundation of the entire tax structure is unsound. Inequality of assessments means that those underassessed pay less than their fair share of public expenses and those overassessed pay their full share and, in addition, they have to make up for what the underassessed fail to pay. The greater the inequalities of assessment the greater the inequalities of the taxes and the more grevious the burdens upon those who find it most difficult to meet their obligations.
R. Blakey, Report on Taxation in West Virginia 107 (1930).
In 1921, the Tennessee Supreme Court emphasized this very point when it enforced the state constitution’s requirement of equal and uniform taxation, “However difficult it may be to arrive at [full value assessment], it is imperatively commanded by the constitution and law. [Equal and uniform taxation] unavoidably and from necessity flows from [full value assessment], and to adopt a cash valuation is the only basis upon which it is practicable to make taxes equal and uniform.” Carroll v. Alsup, 107 Tenn. 257, 283, 64 S.W. 193, 199 (1921).
Moreover, comments made at the time of the adoption of article 10, section 1 at the constitutional convention support a “market value” definition of value. In explaining the taxation process, the chairman of the taxation and finance committee stated, “For it must be remembered sir, that it is the value of any particular thing or object that is taxed, not the thing or object itself.” 3 Debates, West Virginia Constitutional Convention, 1861-63 at 55 (remarks of Mr. Paxton). Thus, in explaining “value,” another delegate stated, “I understand all property shall be taxed in proportion to its value. That is, if one horse is worth $5, tax it on $5, and if another is worth $125, tax it on $125.” Id. at 71 (remarks of Mr. Sinsell).
Thus, dictionary definitions, the use of the word “value” in prior Virginia and West Virginia statutes, case law, and comments made at the West Virginia Constitutional Convention of 1861-63 lead to the conclusion that the term “value,” as used in article 10, section 1 of the West Virginia Constitution, means the “worth in money” of a piece of property — its market value. We therefore reject the taxpayers’ argument that value is such an elusive concept that the Legislature may provide those “shooting at the target” with a 50 percent leeway.
IV.
Having defined “value,” we now reach the fundamental issue in this proceeding. Is the language of W.Va.Code § 18-9A-ll, which permits 50-100 percent assessment, consistent with the constitutional requirement of assessing property at its current worth? Or, in other words, does a fraction equal a whole? Because the term “value” means current market value, we conclude that the statute does not satisfy the constitution. Assessment at a percentage of appraisal value, with the percentage varying from county-to-county within and among the various classes of property, cannot achieve equal and uniform [614]*614taxation. While assessment of property does not of itself result in taxation, it is an integral part of the taxation process. Therefore, in order to assure achievement of the constitutional mandate, assessment values must be determined at 100 percent of the market value as represented by the appraisal value. Any system which permits the setting of assessments at lower than 100 percent of “true and actual value” violates article 10, section 1 of the West Virginia Constitution.
The taxpayers, intervenors below, have devoted a substantial part of their brief to the proposition that legislative enactments are to be presumed valid. We agree. See, e.g., State ex rel. Haden v. Calco Awning and Window Corp., 153 W.Va. 524, 528, 170 S.E.2d 362, 365 (1969). However, this Court has another duty which we firmly expressed 100 years ago in Chesapeake and Ohio Railway v. Miller, 19 W.Va. 408, 437 (1882).
Much respect as we have for the Legislature, a co-ordinate branch of the government, we must pay greater respect to the sovereign will of the people expressed in the Constitution, which they have adopted for their own government. And where the court sees that the Legislature has plainly violated that instrument, it is the highest duty of the court, plainly required by the written Constitution, which it is its sworn duty to support, to pronounce such act of the Legislature unconstitutional.
The desire for equal and uniform taxation manifested in article 10, section 1 of the West Virginia Constitution can be traced to inequities in the Virginia taxation system prior to the Civil War. In 1850, eastern and western Virginians gathered to consider adoption of a new constitution. By this time, Virginia’s population centers had shifted from the tidewater area to the western part of the state. Legislative representation, however, remained concentrated in the east, a fact which infuriated individuals who had migrated over the mountains and successfully established new lives. Eastern Virginia interests, recognizing the need to compromise, surrendered control of the House of Delegates, but retained control of the Senate. At the same time, however, the western delegates agreed to a taxation amendment which would provide favorable tax treatment to eastern agricultural interests. During the 1850s, the amendment resulted in inequitable taxation of some species of property because some types of property were valued at less than their market value. Farber, Property Taxation In West Virginia — An Historical Analysis (unpublished 1982) (on file at the West Virginia University College of Law).
During the 1861-63 constitutional convention, the West Virginia delegates quickly agreed upon the principle that taxation should be equal and uniform. After debate, they also agreed that the state constitution should set forth clearly the notion that different types of property with the same value should be taxed equally. The prevailing sentiment was that all citizens should pay their fair share of the cost of government. 3 Debates, West Virginia Constitutional Convention, 1861-63, at 55 (remarks of Mr. Paxton). Thus, the framers sought equal and uniform taxation on all property not exempted by the constitution. Chesapeake and Ohio Railway Co. v. Miller, 19 W.Va. 408 (1882).
The present system of equating assessments which are 50 percent of property’s appraised value with true and actual value does not achieve the framers’ intent and cannot achieve the constitutional requirement of equal and uniform taxation. One has only to look at the disparities in valuations within Logan County to reach this conclusion. If we multiply these disparities by the 55 counties, the concept of equal and uniform taxation quickly becomes meaningless.
The parties stipulated below that the total assessed valuations per class in Logan County met the minimum 50 percent ratio required by W.Va.Code § 18-9A-11. The percentage was 61.56 for Class I property, 59.16 for Class II property, 71.51 for Class III property and 57.99 for Class IV property. These figures do not represent the ratio that any one property owner may [615]*615have, but merely the aggregate total of all taxpayers with property of a certain category. Thus, as the parties stipulated below, some taxpayers’ assessed values exceed the aggregate percentage and others fall below that figure. Consequently, some individual taxpayers are paying higher taxes because their property is valued at a higher percentage “of true and actual value,” while their neighbors evade their civic duty.
This is true within a class of property and among the four classes in Logan County. For example, there exists almost a 14 percent difference between the aggregate assessment ratios for Class IV property and Class III property. With such disparity, equal and uniform taxation is an impossibility. Such a difference also violates the prohibition against taxation of property of equal value at a higher rate contained in article 10, section 1 of the state constitution. Class III property is currently valued at 71.51 percent of market value while Class IV property is valued at 57.99 percent. Items of property of the same value, but in different classes are being taxed at different levels because of the differences in classification and prevailing ratios. While Class IV property owners in Logan County may be happy with this system, Class III property owners are being treated inequitably.
The parties differ in their characterization of the aggregate assessment-to-appraisal ratio. The taxpayers contend that these ratios do not represent fractional assessments, but merely reflect a difference of opinion between the assessor and the tax commissioner as to the value of property. The taxpayers acknowledge that state law prohibits application of a percentage to true and actual value to determine the assessment value. W.Va.Code § 18-9A-11; In re Pocahontas Land Corp., 158 W.Va. 229, 210 S.E.2d 641 (1974). Consequently, they argue that the assessor does not consciously value property at a percentage of true value, but assesses at what he believes to be true and actual value. This contention stretches the limits of credibility. See In re United Steel Corp., 165 W.Va. 373, 268 S.E.2d 128 (1980); In re Tax Assessment Against Pocahontas Land Corp., 158 W.Va. 229, 210 S.E.2d 641 (1976), for examples of deliberate assessment at a percentage of appraised value.
The school board makes two arguments. First, it argues that these ratios are fractional assessments which directly violate article 10, section 1 of the state constitution. The school board claims that assessors consciously decide to value property at a fraction of its market value sufficient to meet the requirements of W.Va.Code § 18-9A-11, but less than full value. Alternatively, the school board asserts that the 50-100 percent range in W.Va.Code § 18-9A-11 does not alter the requirements of true and actual value appraisal and assessment found in that statute and in W.Va.Code § 11-3-1. Instead, it interprets the 50 percent figure as a benchmark to determine when county officials have met their statutory obligation to provide public school funding, or to determine when removal of county officials is justified.19 The school board argues that failure to meet the 50 percent figure triggers the penalty provisions of W.Va.Code § 18-9A-11.20
The divergent arguments presented in this case represent the historic and continuing battle over property taxation in this state. This struggle has been fought in [616]*616other states and no doubt will occur elsewhere. West Virginia has long been a state in which real property has been owned or controlled by out-of-state interests.21 West Virginia historically has had a low tax rate in comparison to other jurisdictions, and property has often escaped taxation through undervaluation.22
It is important, however, to realize how this case differs from past property taxation decisions made by this Court. Historically, both here and in other states, property owners have sought to enforce their private right to uniform taxation, particularly when certain property has been assessed at a higher ratio of value than that of a neighbor. Such plaintiffs sought reduction of assessments, which in turn, reduced taxation as long as the levy rate remained the same. The United States Supreme Court sanctioned this approach in 1923. In Sioux City Bridge Co. v. Dakota County, 260 U.S. 441, 43 S.Ct. 190, 67 L.Ed. 340 (1923), the Court ruled that where uniformity of taxation and full value assessment could not be reconciled, uniformity took precedence. Thus, despite the presence of state law requiring assessment at 100 percent of value, the plaintiff was entitled to be assessed at the prevailing fraction of full value. Id. at 446, 43 S.Ct. at 192, 67 L.Ed. at 343. This Court has followed that approach in a series of cases, the latest decided in 1980. See In re United States Steel Corp., 165 W.Va. 373, 268 S.E.2d 128 (1980); In re Tax Assessment Against Pocahontas Land Corp., 158 W.Va. 229, 210 S.E.2d 641 (1976); In re Assessment of Kanwha Valley Bank, 144 W.Va. 346, 109 S.E.2d 649 (1959).23
The leading reduction-in-assessment case is In re Assessment of Kanawha Valley Bank, 144 W.Va. 346, 109 S.E.2d 649 (1959). The bank argued that valuation of its shares at 100 percent of true value violated the constitutional guarantee of equal and uniform taxation because other types of property had been valued at less than full value. In finding that the bank was entitled to a reduced assessment, the Court correctly held that article 10, section 1 contains two prohibitions on unequal taxation. First, the requirement that “taxation shall be equal and uniform” is a general statement of the rule. This language is emphasized by language which declares that “[n]o one species of property from which a tax may be collected shall be taxed higher than any other species of property of equal value.” Thus, article 10, section 1 requires equality and uniformity both within species of property and among different species of property. Since the facts in this case show that wide disparities exist both within and among types of property, the [617]*617holding in Kanawha Valley Bank supports the result reached here.
One West Virginia case, however, has departed from the reduction-in-assessment pattern. In Tug Valley Recovery Center, Inc. v. Mingo County Commission, 164 W.Va. 94, 261 S.E.2d 165 (1979), the appellant sought to enforce the public’s right to equal and uniform taxation. We recognized in that case that state law provided third parties with standing to challenge the assessment values of property owned by others. We based this decision on the clear rationale that all taxpayers have an interest in the assessed values of other property since undervaluation of some property may lead to an unequal shouldering of the tax burden by others. While the appellant in Tug Valley sought only to raise the assessment of one property owner, it ultimately hoped to have the valuation set at the standard adopted here — market value.
This case turns upon the Constitution of West Virginia. Therefore, our decision does not depend on results reached in other jurisdictions in analogous cases. However, the question of full value assessment has become an increasingly litigated topic. While there has not been unanimous agreement, the majority of courts have found that state statutes or constitutional provisions analogous to those in West Virginia require assessment at 100 percent of property’s market value. E. Ingraham Co. v. Town of Bristol, 144 Conn. 374, 132 A.2d 563 (1957) (statute); McNayr v. State, 166 So.2d 142 (Fla.1964) (statute); Russman v. Luckett, 391 S.W.2d 694 (Ky.1965) (constitution); Bettigole v. Assessor of Springfield, 343 Mass. 223, 178 N.E.2d 10 (1961) (statute); Switz v. Middleton, 23 N.J. 580, 130 A.2d 15 (1957) (statute); Hellerstein v. Islip, 37 N.Y.2d 1, 371 N.Y.S.2d 388, 332 N.E.2d 279 (1975) (statute); Carroll v. Als-up, 107 Tenn. 257, 64 S.W. 193 (1921) (constitution and statute).
In general, cases involving statutory requirements of full value assessment have focused on language mandating valuation at “full” or “cash” value. However, at least one state supreme court has approved fractional assessment notwithstanding a legislative command to the contrary. State ex rel. Park Investment Co. v. Board of Tax Appeals, 175 Ohio St. 410, 195 N.E.2d 908, cert. denied, 379 U.S. 818, 85 S.Ct. 35, 13 L.Ed.2d 29 (1964).
A less-decided question has been whether state constitutional provisions require full value assessment. At least two jurisdictions, Kentucky and Tennessee, have held that their constitutions require assessment at market value.24 Conversely, California and Virginia have interpreted constitutional provisions requiring full value assessment as allowing fractional assessment.25 In these latter jurisdictions, the courts have accepted the argument that the historic practice of undervaluation has undermined the constitutional requirement of full value assessment and have declared their constitutional provisions to be in desuetude. We reject this proposition of law. The rule of desuetude is not the law of this jurisdiction. We find more persuasive and reputable the language of the Kentucky Supreme Court.
In any event, we are dealing with fundamental law. It is not outdated, or obsolete, or contrary to any public policy we know of. The public has acquiesced in its nonobservance simply because personal rights were not adversely affected and citizens heretofore have not been inclined to compel executive compliance. This law today is just as vital and enforceable as the day it was written into the Constitution.
Russman v. Luckett, 391 S.W.2d 694, 697 (Ky.1965).
[618]*618We conclude that the percentage ratio scheme contained in W.Va.Code § 18-9A-ll results in fractional assessment which is prohibited by the constitutional requirement of equal and uniform taxation as well as by W.Va.Code § 18-9A-11. As the lower court found, the Legislature has no authority to allow assessors discretion in determining the value of property. Value means the market value of the property. Equal and uniform taxation cannot result when each county assessor can vary assessments up to 50 percent of the appraised value both within and among classes of property. The fact that 55 assessors are granted this authority totally undermines any ability of the tax commissioner to assure equal and uniform taxation. As we have said, enactment of the statewide appraisal requirement reflects the Legislature’s determination that uniform property assessment is the only way to assure uniform property taxation. Pauley v. Kelly, 162 W.Va. 672, 255 S.E.2d 859, 881.
Achievement of uniform assessment and thereby equal and uniform taxation is a step-by-step process. Because the law directs that competent appraisers or expert examiners will be appointed by the tax commissioner to value property, the appraisal values are to be considered presumptive evidence of the assessed value. Cf W.Va.Code § 11-1-2 (Tax commissioner “may appoint competent persons to appraise property values ... and may employ experts to examine and report upon the different kinds and classes of property in the State, with a view to ascertaining the true and actual value thereof for assessment purposes ... ”). In this manner, the tax commissioner can make a determination of the market value of property, thus eliminating the ad hoc assessment system now in place by which 55 assessors make individual determinations subject to minimal supervision and oversight. As we noted in Tug Valley Recovery Center, Inc. v. Mingo County Commission, supra, “It is incumbent upon the circuit court, as it would be upon the. county commission and the assessor, to set the assessed value of all parcels of land at the amount established by the State Tax Commissioner.’’ 164 W.Va. at 108, 261 S.E.2d at 173 (emphasis added).
The statute itself supports this requirement. W.Va.Code § 18-9A-11 provides that the county officials “shall use such appraised valuations as a basis for determining the true and actual value for assessment purposes_” This Court adheres to the view that “the use of the word ‘shall/ without any modification unquestionably makes the direction therein mandatory.” Crusenberry v. Norfolk and Western Railway Co., 155 W.Va. 155, 159, 180 S.E.2d 219, 222 (1971); see also UMWA v. Miller, 170 W.Va. 177, 291 S.E.2d 673 (1982). Similarly, we recognize that the statute uses the term “a basis” in reference to use of the appraisal. Therefore, we interpret this term to mean that county assessors may consult other credible and reliable sources of information, e.g., the property owner’s sworn valuation and appraisal by bona fide appraisers, in determining the assessed value. W.Va.Code §§ 11-3-2, -4, -12; see also In re Shonk Land Co., 157 W.Va. 757, 204 S.E.2d 68 (1974).
The lower court declined to adopt mandatory use of the tax commissioner’s appraisal and instead offered to conduct de novo hearings on the question of the taxpayers’ property values. The trial judge apparently believed that use of appraisal values would be a denial of due process to these taxpayers. Due process requires procedures by which taxpayers and other interested parties may challenge use of the appraisal values as assessment values if the former are either too high or too low. This can be accomplished by use of the procedures prescribed by W.Va.Code § 11-3-24. Once the assessor sets an assessment value,26 the taxpayer may appear before the Board of Equalization and Review. W.Va. Code § 11-3-24. The Board may increase or decrease assessments to achieve “true and actual value.” Id. If the taxpayer or other party still is unsatisfied, an appeal [619]*619may be taken to the circuit court. W.Va. Code § 11-3-25, Tug Valley Recovery Center, Inc. v. Mingo County Commission, supra. The circuit court shall “correct the assessment, and fix the property at its true and actual value” if it determines an incorrect assessment has been made. W.Va. Code § 11-3-25.
Use of the tax commissioner’s appraisal is premised in part on the need for assessment uniformity in both methodology and result. Therefore, the tax commissioner’s appraisal should be presumed to be correct and the assessed value should correspond to the appraisal value in the usual case. An objection to any assessment value may be sustained only upon the presentation of competent evidence, such as that equivalent to testimony of qualified appraisers, that the property has been under- or over-appraised by the tax commissioner and wrongly assessed by the assessor. The objecting party, whether it be the taxpayer, the tax commissioner or another third party, must show by a preponderance of competent evidence that the assessment is incorrect.27
To maintain the integrity of the appraisal system, it is incumbent upon the county assessor and county commissioners to inform the tax commissioner of all challenges made to assessment values based on claims of under- or over-appraisal by the tax commissioner. The tax commissioner has a supervisory duty over both the county assessor and the county commissioners to establish assessments. It is the tax commissioner’s duty to ensure that assessment occurs at market value. The tax commissioner must see that county officials are complying with the constitutional and statutory requirements of full value assessment. W.Va.Const. art. 10, § 1, W.Va.Code §§ 11-3-1, 18-9A-11. We note that W.Va.Code § 18-9A-ll gives the tax commissioner authority to set “the assessments at the required ratios [100 percent]” in a county. Thus, we recognize that the tax commissioner has the authority and duty to correct assessments in a county where local officials are unable or unwilling to comply with the law.
We wish to dispose of one final contention made by the taxpayers. They argue that the constitutional phrase “equal and uniform taxation throughout the State” does not mean what it says. They interpret this phrase to require only uniformity of methodology in determining value within a county. As already demonstrated, the existing “uniformity” of methodology has not, and cannot result in uniform taxation, either within a county or within this state.28 Since article 10, section 1 of the West Virginia Constitution requires equal and uniform taxation in all areas of the state, both the method and the result of taxation are essential to compliance with the constitution.
The parties contest the propriety of applying our decision to the assessments made July 1, 1980, which are at issue here. The taxpayers argue that this would be retroactive application. We disagree. The [620]*620issue being litigated in this proceeding is the legality of the 1980 assessments. Retroactive application would mean alteration of assessments made prior to the 1980 tax year.
We realize, however, that the valuation-levying cycle based on the 1980 assessments is well under way. In fact, taxpayers should have made their final installment payments on those assessments this past March. Additionally, the valuation-levying cycle for the 1981 assessment year is almost half complete. Taxes based on those assessments are due this September and next March. Therefore, the assessments already made in 1980 and in 1981 and the levy rates based on those assessments are to remain in force, provided they are otherwise lawful. This approach is in accord with the decisions of other jurisdictions which have held that full value assessments are required. See, e.g., Hellerstein v. Islip, 37 N.Y.2d 1, 371 N.Y.S.2d 388, 332 N.E.2d 279 (1975), Russman v. Luckett, 391 S.W.2d 694 (Ky.1965); Switz v. Middleton, 23 N.J. 580, 130 A.2d 15 (1957). Therefore, we hold that it is the duty of all county assessors to comply with the law. It is the duty of the tax commissioner to proceed with all deliberate speed to develop an up-to-date appraisal for each assessment year for all the 55 counties. The tax commissioner has a duty to appoint the necessary special assessors and appraisers to accomplish this end. W.Va. Code § 18-9A-11.
This Court is not unmindful that this decision may result in increased taxes to some, particularly those who have not paid their fair share in the past. However, if governmental expenditures remain the same, it should lower the taxes paid by other property owners.29 Individuals whose property has been undervalued to any great extent face the greatest likelihood of increased taxes. Those whose property has been valued at or near its market value will benefit because others will be taxed on the same ratio of full value — 100 percent. The tax commissioner has calculated that almost 40 percent of the value of taxable property in West Virginia escaped taxation in 1980. H. Rose, Study of Property Valuations As They Relate To Levies Laid For The Support Of Schools. In West Virginia For The Tax Year 1981 at VI (Dec. 1, 1981). This results in a disproportionate levy on the remaining 60 percent of value. Thus, with full valuation of property, the local levying bodies should be able to reduce the applicable levy rates.30
During the argument of this case, there was much discussion respecting who is ultimately responsible for establishment of property tax rates. Clearly, the Legislature has the duty and responsibility to levy taxes. W.Va.Const. art. 10. The Legislature has authorized local levying bodies to establish levy rates within constitutional and statutory limits. W.Va.Const. art. 10, § 1; W.Va.Code §§ 11-8-1 to -33. It is just as clear that county assessors are not involved in the process by which a levy rate is established and approved. The assessors mechanically apply the approved levy rates to the total assessed values of the county to determine the amount of tax owed. This duty is ministerial in nature. In re National Bank, 137 W.Va. 673, 73 S.E.2d 655 (1952), citing, State ex rel. Hallanan v. [621]*621Rocke, 91 W.Va. 423, 113 S.E. 647 (1922). Assessed valuations are independent of the levy rate process. Since assessments are calculated prior to establishment of the levy rate, no assessor knows what the exact levy rate will be. Conversely, the levy rate is tied directly to the assessment, in that the levy rate is properly determined by calculating the amount of revenue needed to finance government operations given the total assessed valuation. W.Va.Code § 11-8-3. As charged by the Legislature, it is the responsibility of these elected officials, ultimately responsible to the electorate, to decide whether the levy rate and property taxes increase, decrease, or remain at current levels. The levying bodies may never need to levy at 100 percent of their lawful capacity. It is their duty to set the levy rate and to determine the property tax paid by each taxpayer.
Given these relative duties and responsibilities of the assessors and the levy bodies, all prescribed by the Legislature, it is appropriate here to comment generally on the state-county relationship. Although the office of assessor is created by the constitution, the assessor’s duties are prescribed by the Legislature. State ex rel. Hallanan v. Rocke, 91 W.Va. 423, 113 S.E. 647 (1922). For example, the Legislature has prescribed how the assessor is to value property, W.Va.Code § 11-3-2, when he is to value it, id., and how he is to use the valuation. W.Va.Code § 11-3-19. The Legislature has given the state tax commissioner general supervisory and enforcement authority over assessors concerning establishment of those values. W.Va.Code §§ 11-1-2; 11-3-1; 18-9A-11. In other words, the assessor is answerable not only to the county commission, but also to the state in the person of the tax commissioner.
This example typifies the state-county relationship. It is not one of federalism, of co-sovereigns. Fifty-five sovereign entities do not exist within the sovereign state of West Virginia. Rather, 55 geographically-defined governmental organizations exist to carry out the purpose of state government. The counties are subdivisions of the state, and county officials and governments are generally subject to supervision by state officials acting for the state government. This fact is clearly reflected by the detailed statutory provisions which provide political subdivisions with their powers. See, e.g., W.Va.Code §§ 7-1-1 to -11 (1976 Replacement Vol.) (county commissions). In the case of counties, the constitution sets the minimum territorial and population requirements, W.Va.Const. art. 9, § 8, but the Legislature prescribes the method for their creation. W.Va.Code § 1-3-2 (1979 Replacement Vol.). The foregoing does not alter the power of citizens of a county to achieve home rule by reformation of county government under the powers granted by article 9, section 9 of the West Virginia Constitution. See generally Taylor County Commission v. Spencer, 169 W.Va. 37, 285 S.E.2d 656 (1981).
We realize that today’s decision will require some time for the various officials to obtain market value assessments on all property subject to the ad valorem tax. We also realize taxpayers may initiate litigation concerning equal and uniform or market value assessments. In actions which challenge an entire class of assessments, the State Tax Commissioner is an indispensable party because of his ultimate supervisory authority. Consequently, under W.Va.Code § 14-2-2 (1979 Replacement Vol.), the proper venue of such suit is the Circuit Court of Kanawha County. See State ex rel. Ginsberg v. Watt, 168 W.Va. 503, 285 S.E.2d 367 (1981); Shobe v. Latimer, 162 W.Va. 779, 253 S.E.2d 54 (1979); State ex rel. Ritchie v. Triplett, 160 W.Va. 599, 236 S.E.2d 474 (1977).31 Moreover, in any such suit, the mere fact that the Tax Commissioner has not done his job will not automatically mean that the equal and uniform provisions of article 10, section 1 of the state constitution have been violated. [622]*622The ultimate issue which plaintiffs must prove is that property has not been assessed at market value.
Once assessments are calculated at market value, with the tax commissioner’s appraisal used as presumptive evidence of that value, the need for reduction-in-assessment actions should be eliminated. As discussed previously, case law in this state has been concerned primarily with efforts by taxpayers to reduce their assessments because they had been assessed at a higher fraction of market value than other taxpayers. In the future, taxpayers who claim that they are being overassessed in relation to other taxpayers may not have their assessments reduced as long as their property is valued at market value. Instead, they should seek to have the assessments of other taxpayers raised to market value. Tug Valley Recovery Center, Inc. v. Mingo County Commission, 164 W.Va. 94, 261 S.E.2d 165, 173 (1979). Since fractional assessment is not lawful, taxpayers should not seek to reduce their assessments. The only lawful percentage is 100 percent of market value.
For the foregoing reasons, we hold that W.Va.Code § 18-9A-11 violates article 10, section 1 of the West Virginia Constitution. In answer to the certified question, we hold that W.Va.Code § 18-9A-11, “insofar as it provides that the total assessed valuation in each of the four (4) classes of property shall not be less than fifty percent (50%) nor more than one hundred percent (100%) of the Tax Commissioner’s appraised valuation of each of said classes of property,” violates the constitutional guarantee of equal and uniform taxation. A fraction does not equal a whole. Fifty percent does not equal 100 percent.
The state tax commissioner has a duty to do as the Legislature has instructed and his appraisals are to be considered presumptive evidence of property’s “true and actual value.” However, “any person claiming to be aggrieved” — property owners, the tax commissioner, other taxpayers, or public officials — may challenge any assessment under the procedures set forth in W.Va.Code § 11-3-24. The assessor, the Board of Equalization and Review, or the circuit court may reduce or increase assessment values, provided that a preponderance of competent evidence shows that the commissioner’s appraisal values do not represent “true and actual value.” The certified question is answered in the affirmative.32
Affirmed.
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295 S.E.2d 689, 170 W. Va. 602, Counsel Stack Legal Research, https://law.counselstack.com/opinion/killen-v-logan-county-commission-wva-1982.