Nine v. Grant Town
Annotate this CaseSeptember 1993 Term
__________
No. 21559
__________
FLORENCE NINE AND DAVE NINE,
Plaintiffs Below, Appellees
v.
GRANT TOWN, A MUNICIPAL CORPORATION;
GARY BROWNLEE, MAYOR; MELANIE THOMPSON,
RECORDER; BEA SULLIVAN, JOE RETTON,
ARTHUR PUSKAS, RICHARD GILLESPIE,
GONZALO LOPEZ, AS MEMBERS OF THE
GRANT TOWN COUNCIL,
Defendants Below, Appellants
_______________________________________________________
Appeal from the Circuit Court of Marion County
Honorable Rodney B. Merrifield, Judge
Civil Action No. 91-C-608-M
REVERSED
________________________________________________________
Submitted: September 28, 1993
Filed: October 15, 1993
Florence Nine and
Dave Nine
Pro se
Ron L. Tucker
Louis J. Palmer, Jr.
Fairmont, West Virginia
Attorneys for Defendants
JUSTICE MILLER delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. Because W. Va. Code, 8-13-13 (1971), is silent as to
when publication should be made with regard to the adoption of an
ordinance, the general rule is that publication should be done in
advance of the passage of the ordinance.
2. The publication requirements in W. Va. Code, 8-13-13
(1971), are only applicable to municipal ordinances imposing taxes
that are authorized by that section.
3. In the absence of any specific publication
requirements within W. Va. Code, 8-13-5a (1971), the general
publication provisions of W. Va. Code, 8-11-14(a)(2) (1969), are
applicable to the enactment of a municipal tax ordinance under
W. Va. Code, 8-13-5a.
4. The utility excise fee outlined in W. Va. Code, 8- 13-5a, is a separate and distinct tax from the categories of taxes contained in W. Va. Code, 8-13-13 (1971).
Miller, Justice:
Grant Town, along with its mayor and council,
(hereinafter collectively called "Town"), appeals the summary
judgment order of the Circuit Court of Marion County entered on
August 7, 1992.See footnote 1 The circuit court held that the Town's excise tax
on public utilities enacted pursuant to W. Va. Code, 8-13-5a
(1971),See footnote 2 was invalid because it had not been published according to
the requirements contained in W. Va. Code, 8-13-13 (1971),See footnote 3 which
authorizes a municipality to adopt tax ordinances for certain
essential or special services. This section requires publication
of the ordinance.See footnote 4 The circuit court determined that the
publication language in W. Va. Code, 8-13-13, required publication
after the ordinance was adopted. Because the Town had only
published the ordinance before it was adopted, the circuit court
found the ordinance was invalid.
The Town contends that the general publication provisions
in W. Va. Code, 8-11-4(a)(2) (1969), are applicable. This
provision requires that a revenue ordinance must be published "[a]t
least five days before the meeting at which a proposed ordinance
. . . is to be finally adopted[.]"See footnote 5 The Town also argues that only
the revenue ordinances set out in W. Va. Code, 8-13-13, are covered
by its separate publication provision and that the Town's excise
tax on public utilities authorized under W. Va. Code, 8-13-5a, is
not within the Section 13 categories.
We agree with these contentions. First, as a preliminary
matter with regard to the publication of an ordinance, we stated in
City of Moundsville v. Yost, 75 W. Va. 224, 228, 83 S.E. 910, 912
(1914), that the purpose of publication is "to protect the property
owners liable to special assessment as well as the general
taxpayers by ample notice[.]" The chief purpose of any publication
is to give advance notice of the occurrence of an event. This is
to allow interested citizens to have a voice in the matter, and, in
the case of an ordinance, to influence its passage or defeat. See
generally 5 E. McQuillin, The Law of Municipal Corporations § 16.76
(3d ed. & 1989 Rev.). We recognized in Hager v. Melton, 66 W. Va.
62, 66 S.E. 13 (1909), that it is permissible to specifically
require that an ordinance, after its adoption, not take effect
until publication has been made. However, in the absence of
express language requiring publication after a statute or ordinance
has been passed, we concluded that a general statutory requirement
for publication should be construed to require advance publication
before its adoption.
Thus, with regard to the publication requirements of
W. Va. Code, 8-13-13, because the statute is silent as to when
publication should be made with regard to the adoption of an
ordinance, the general rule is that publication should be done in
advance of the passage of the ordinance. This will achieve the
requisite advance notice to interested citizens.
We also find that W. Va. Code, 8-13-13, does not apply to
a public utility tax enacted under W. Va. Code, 8-13-5a. There are
a number of cases that have been decided under W. Va. Code, 8-13-
13. These cases indicate that the purpose of W. Va. Code, 8-13-13,
is to allow municipalities to enact tax ordinances to defray the
cost of certain municipal services and to impose the tax on its
citizens who are users of such services. See, e.g., City of
Fairmont v. Pitrolo Pontiac-Cadillac Co., 172 W. Va. 505, 308 S.E.2d 527 (1983), cert. denied, 466 U.S. 958, 104 S. Ct. 2169, 80 L. Ed. 2d 553 (1984); Ellison v. City of Parkersburg, 168 W. Va.
468, 284 S.E.2d 903 (1981); State ex rel. Plymale v. City of
Huntington, 147 W. Va. 728, 131 S.E.2d 160 (1963); McCoy v. City of
Sistersville, 120 W. Va. 471, 199 S.E. 260 (1938). These cases do
not indicate that W. Va. Code, 8-13-13, applies to every tax
ordinance that may be adopted by a municipality.
The plain language of W. Va. Code, 8-13-13, recognizes
the general publication provisions of W. Va. Code, 8-11-4(a)(2),See footnote 6
but foregoes that publication requirement in favor of the more
stringent publication requirements of Class II legal
advertisements, i.e., publication once a week for two successive
weeks.See footnote 7 It is clear from the foregoing statutory language that the
publication requirements in W. Va. Code, 8-13-13, are only
applicable to municipal ordinances imposing taxes that are
authorized by that section.
Moreover, W. Va. Code, 8-13-5a, is one of a number of tax
revenue sources permitted to be utilized by municipalities.See footnote 8 In
none of these sections are there any specific requirement for
publication. If the legislature intended to require an ordinance
adopted under these sections, such as W. Va. Code, 8-13-5a, to be
subject to the publication standards set out in W. Va. Code, 8-13-
13, it could have referenced that section. In the absence of any
specific publication requirements within W. Va. Code, 8-13-5a, the
general publication provisions of W. Va. Code, 8-11-14(a)(2), are
applicable to the enactment of a municipal tax ordinance under
W. Va. Code, 8-13-5a.
Finally, we do not think it can be argued that the Town's
tax on public utilities is a service tax under W. Va. Code, 8-13-
13, requiring the publication standards enunciated therein to be
followed. When the language of W. Va. Code, 8-13-5a, is examined,
it is clear that what is levied is an excise tax which is collected
by the utility from its customers within the municipality.See footnote 9 This
tax does not fall within W. Va. Code, 8-13-13, which relates to
taxes raised by a municipality that furnishes services to its
citizens. Rather, the tax imposed under W. Va. Code, 8-13-5a, is
on utility services supplied by public utilities not owned by the
municipality. This service is supplied not through any labor or
cost to the municipality, and even the collection of the tax is
performed by the utility.
The legislature's language under W. Va. Code, 8-13-13, is
based on the premise that a municipality incurs some expense for
furnishing, installing, continuing maintenance, or improving a
service it renders to its citizens.See footnote 10 This type of service tax is
distinguishable from the legislature's authorization of a specific
amount of tax revenue collected by a municipality for an activity
conducted by a third party within the municipality. This
distinguishing characteristic is the hallmark of the tax outlined
in W. Va. Code, 8-13-5a, and related sections of Article 13.See footnote 11 The
taxes authorized by W. Va. Code, 8-13-13, are not limited to a
specific statutory amount and are borne directly by the citizens of
the municipality. Because of their more severe impact, it seems
logical for the legislature to require a longer period of
publication before the tax ordinance could be adopted. This same
logic would explain the citizens' right to a referendum under W.
Va. Code, 8-13-13.See footnote 12
Thus, we conclude that the utility excise fee outlined in
W. Va. Code, 8-13-5a, is a separate and distinct tax from the
categories of taxes contained in W. Va. Code, 8-13-13. There is no
question that the Town published its ordinance properly under
W. Va. Code, 8-11-4(a)(2). We, therefore, find that the Circuit
Court of Marion County erred in holding the Town's ordinance
invalid, and, consequently, we reverse its judgment.
Reversed.
Footnote: 1The Town filed a "motion for reconsideration of order
granting summary judgment" with the trial court. The trial court
denied that motion. We note that "no provision in the [West
Virginia Rules of Civil Procedure] . . . allows a motion for
reconsideration to be filed." Rowan v. McKnight, 184 W. Va. 763,
764 n.2, 403 S.E.2d 780, 781 n.2 (1991). However, a motion for
relief from judgment or order may be filed pursuant to Rule 60 of
the West Virginia Rules of Civil Procedure, and a motion for a
new trial or an amendment of judgment may be filed pursuant to
Rule 59. See Lieving v. Hadley, 188 W. Va. 197, ___, 423 S.E.2d 600, 604 (1992).
Footnote: 2The pertinent language of W. Va. Code, 8-13-5a, is:
"Every municipality shall have
plenary power and authority to levy and
collect an excise tax on the privilege of
purchasing, using or consuming, within the
corporate limits of such municipality, public
utility services and tangible personal
property from public utilities subject to the
jurisdiction of the public service commission
of West Virginia. Such tax shall be computed
on the basis of an amount not to exceed two
percent of the gross amount of each periodic
statement rendered such purchasers or
consumers by such public utilities[.]"
Footnote: 3The applicable portion of W. Va. Code, 8-13-13, is:
"Notwithstanding any charter provisions to the contrary, every
municipality which furnishes any essential or
special municipal service, including, but not
limited to, police and fire protection,
parking facilities on the streets or
otherwise, parks and recreational facilities,
street cleaning, street lighting, street
maintenance and improvement, sewerage and
sewage disposal, and the collection and
disposal of garbage, refuse, waste, ashes,
trash and any other similar matter, shall
have plenary power and authority to provide
by ordinance for the installation,
continuance, maintenance or improvement of
such service, to make reasonable regulations
with respect thereto, and to impose by
ordinance upon the users of such service
reasonable rates, fees and charges to be
collected in the manner specified in the
ordinance[.]"
Footnote: 4The applicable language of W. Va. Code, 8-13-13, is:
"Notwithstanding the provisions of section
four [§ 8-11-4], article eleven of this
chapter, any ordinance enacted or
substantially amended under the provisions of
this section shall be published as a Class II
legal advertisement in compliance with the
provisions of article three [§ 59-3-1 et
seq.], chapter fifty-nine of this code, and
the publication area for such publication
shall be such municipality."
Footnote: 5The complete text of W. Va. Code, 8-11-4(a)(2), is:
"At least five days before the
meeting at which a proposed ordinance, the
principal object of which is the raising of
revenue for the municipality, is to be
finally adopted, the governing body shall
cause notice of the proposed adoption of said
proposed ordinance to be published as a Class
I-0 legal advertisement in compliance with
the provisions of article three [§ 59-3-1 et
seq.], chapter fifty-nine of this code, and
the publication area for such publication
shall be the municipality. The notice shall
state the subject matter and general title or
titles of such proposed ordinance, the date,
time and place of the proposed final vote on
adoption, and the place or places within the
municipality where such proposed ordinance
may be inspected by the public. A reasonable
number of copies of the proposed ordinance
shall be kept at such place or places and be
made available for public inspection. Said
notice shall also advise that interested
parties may appear at the meeting and be
heard with respect to the proposed
ordinance."
Footnote: 6Under W. Va. Code, 8-11-4(a)(2), see note 5, supra,
publication is to be by a Class I-0 legal advertisement, that,
pursuant to W. Va. Code, 59-3-2(b) (1967), must be published one
time.
Footnote: 7See note 4, supra, for the pertinent text of W. Va. Code,
8-13-13.
Footnote: 8The following taxes are listed in the chapter index to
W. Va. Code, 8-13-1, et seq:
W. Va. Code, 8-13-1: General property and benefit taxes
W. Va. Code, 8-13-3: Hotel occupancy tax
W. Va. Code, 8-13-4: Municipal license
W. Va. Code, 8-13-5: Business and occupation or privilege tax
W. Va. Code, 8-13-5a: Public utilities tax
W. Va. Code, 8-13-6: Amusement tax
W. Va. Code, 8-13-7: Tax on purchases of intoxicating liquors
W. Va. Code, 8-13-8: License tax on horse racing and dog racing
W. Va. Code, 8-13-9: Motor vehicle operator's tax
W. Va. Code, 8-13-10: Domestic animal tax
W. Va. Code, 8-13-11: Preservation of prior tax powers
Footnote: 9The relevant language of W. Va. Code, 8-13-5a, is:
"Every municipality shall have
plenary power and authority to levy and
collect an excise tax on the privilege of
purchasing, using or consuming, within the
corporate limits of such municipality, public
utility services . . . . Such purchasers or
consumers shall pay to such public utilities
the amount of the tax levied pursuant to this
section which shall be added to and
constitute a part of the cost of the service
or property so purchased or consumed and
shall be collectible as such by said public
utilities who shall account to the
municipality levying same for all tax paid by
such purchasers or consumers pursuant to the
provisions of any ordinance imposing such
tax."
Footnote: 10See note 3 for the applicable language of W. Va. Code, 8-
13-13.
Footnote: 11See note 8, supra, for a listing of these taxes. The one
exception, where no limit on the tax was imposed, is W. Va. Code,
8-3-10, the license tax on a domestic animal.
Footnote: 12The referendum language in W. Va. Code, 8-13-13, is:
"In the event thirty percent of the qualified voters of the municipality by petition duly signed by them in their own handwriting and filed with the recorder of the municipality within fifteen days after the expiration of such publication protest against such ordinance as enacted or amended, the ordinance shall not become effective until it shall be ratified by a majority of the legal votes cast thereon by the qualified voters of such municipality at a regular municipal election or special municipal election, as the governing body shall direct."
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.