Putnam County Fire Service Board, Inc. v. Kelly

449 S.E.2d 508, 192 W. Va. 37, 1994 W. Va. LEXIS 109
CourtWest Virginia Supreme Court
DecidedJuly 8, 1994
DocketNo. 22044
StatusPublished

This text of 449 S.E.2d 508 (Putnam County Fire Service Board, Inc. v. Kelly) 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.

Bluebook
Putnam County Fire Service Board, Inc. v. Kelly, 449 S.E.2d 508, 192 W. Va. 37, 1994 W. Va. LEXIS 109 (W. Va. 1994).

Opinion

WORKMAN, Justice:

This action originated when civil suits were instituted by the Plaintiff, Putnam County Fire Service Board (hereinafter also referred to as the Board), in the Magistrate Court of Putnam County to collect delinquent fire service fees owed by the Defendants,1 who are owners of residential and commercial realty situated in Putnam County, to the Plaintiff pursuant to the Putnam County Fire Service User Fee Ordinance (hereinafter referred to as the fire service fee ordinance) and West Virginia Code § 7-17-12 (1984). The Defen[38]*38dants subsequently removed the cases to circuit court and challenged the validity of the fire service fee ordinance. On August 2, 1993, the Circuit Court of Putnam County ordered the certification of the following question:

Does the adoption of the Putnam County fire service user fee ordinance pursuant to W.Va.Code § 7-17-12, as enacted in 1984 and prior to that statute’s amendment in 1988, violate the First and Fourteenth Amendments of the United States Constitution and Article III, Section 16 of the Constitution of the State of West Virginia in that the period of time allowed opponents of the ordinance to file petitions protesting same was unduly restrictive?2

The circuit court, by answering this question in the affirmative, found the statute unconstitutional. Upon review of the parties’ briefs, arguments and all other matters of record submitted before this Court, we conclude that the circuit court erred in its answer and hold that West Virginia Code § 7-17-12 is constitutional.

I.

The Legislature enacted West Virginia Code § 7-17-1 to -20 (1993) so that county fire boards could be established because “[t]he legislature finds that fire protection and saving lives and property are important to the health and welfare of the citizens of the State and that it is desirable for county governments to provide fire protection services to county residents.” W.Va.Code § 7-17-1. To enable county governments to provide fire service protections, West Virginia Code § 7-17-12, as originally enacted, provided for the enactment of fire service fees as follows:

Every county commission which provides fire protection services has plenary power and authority to provide by ordinance for the continuance or improvement of such service, to make regulations with respect thereto and to impose by ordinance, upon the users of such services, reasonable fire service rates, fees and charges to be collected in the manner specified in the ordinance. However, before a county commission can impose by ordinance, upon the users of such service, a reasonable fire service fee, ten percent of the qualified voters shall present a petition duly signed by them in their own handwriting and filed with the clerk of the county commission directing that the county commission impose such a fee.... Any ordinance enacted under the provisions of this section shall be published as a Class II legal advertisement ... and the publication area for such publication shall be the county in which the county fire board is located. In the event thirty percent of the qualified voters of the county by petition duly signed by them in their own handwriting and filed with the clerk of the county commission within fifteen days after the expiration of such publication protest against such ordinance as enacted or amended, the ordinance may not become effective until it is ratified by a majority of the legal votes cast thereon by the qualified voters of such county at any primary, general or special election as the county commission directs.3 (Emphasis added).

On October 28, 1985, the Putnam County Fire Service Coordinator (hereinafter referred to as the Coordinator) presented the Putnam County Commission (hereinafter referred to as the Commission) with a petition bearing 1,905 signatures asking the Commission to impose an ordinance creating a fire service fee in the county.4 The Coordinator also presented the Commission with a draft [39]*39of a fire service fee ordinance, which the Commission adopted on first reading. On November 4, 1985, the Commission adopted the ordinance in final form. The effective date for the ordinance was January 1, 1986.5

On November 7 and November 14, 1985, the text of the ordinance adopted by the Commission was published in the Charleston Gazette and the Charleston Daily Mail in accordance with West Virginia Code § 7-17-12. During the fifteen days following November 14, 1985, persons seeking a public vote on the fire service fee ordinance gathered 6,577 signatures on a petition and submitted said petition to the clerk of the Commission.

On December 2, 1985, the clerk of the Commission presented the petition seeking ballot access to the Commission and requested an order from the Commission directing him to verify the signatures. On February 6, 1986, the Commission was informed by the County Administrator that, while a total of 6,577 signatures appeared on the petition, only 4,932 were qualified voters, which was 482 signatures short of the amount required to put the fee issue on the ballot.6

II.

The issue is whether the fifteen-day limitation period formerly established by West Virginia Code § 7-17-12 for opponents of a fire service fee ordinance to file petitions in protest of the ordinance in order to obtain ballot access is constitutional. The Plaintiff argues that the fifteen-day limitation period mandated by West Virginia Code § 7-17-12 is clear, unambiguous, imperative and constitutional. The Plaintiff also maintains that the circuit court’s ruling that the fifteen-day limitation period is “unduly restrictive” is arbitrary, capricious and plainly wrong. In contrast, the Defendants contend that the fifteen-day limitation period provided for by the statute unduly burdens the right of individuals to associate freely and to have access to the ballot box.

The Plaintiff relies heavily upon this Court’s decisions in State ex rel. Riffle v. City of Clarksburg, 152 W.Va. 317, 162 S.E.2d 181 (1968) and State ex rel. Plymale v. City of Huntington, 147 W.Va. 728, 131 S.E.2d 160 (1963), to support its contention that the statutory fifteen-day limitation period mandated by West Virginia Code § 7-17-12 is clear, unambiguous and constitutional. In Riffle and Plymale we upheld a similar statutory fifteen-day limitation period applicable to municipalities seeking to enact fire service fees found within West Virginia Code § 8-13-13 (1990).7 In Riffle, we explained that

[w]e are of the opinion also that the portion of the protest petition consisting of 294 signatures ... was properly rejected [40]*40because not filed within fifteen days from the date of the second publication of the ordinance ..., as required by the provisions of Code, 1931, 8-4-20,8 as amended. The statute clearly requires that the protest petition be ‘filed with the municipal authority within fifteen days after the expiration of such publishing * * That language is clear, unambiguous and imperative.

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Related

State Ex Rel. Plymale v. City of Huntington
131 S.E.2d 160 (West Virginia Supreme Court, 1963)
State Ex Rel. Riffle v. City of Clarksburg
162 S.E.2d 181 (West Virginia Supreme Court, 1968)
McCoy v. City of Sistersville
199 S.E. 260 (West Virginia Supreme Court, 1938)
State ex rel. Piccirillo v. City of Follansbee
233 S.E.2d 419 (West Virginia Supreme Court, 1977)
Scott v. Marion County Commission
377 S.E.2d 476 (West Virginia Supreme Court, 1988)

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Bluebook (online)
449 S.E.2d 508, 192 W. Va. 37, 1994 W. Va. LEXIS 109, Counsel Stack Legal Research, https://law.counselstack.com/opinion/putnam-county-fire-service-board-inc-v-kelly-wva-1994.