*1 651 jury appellate will not be interfered with court, appears rights complaining unless it that the have manifest party prejudiced, injustice been or that 3, syllabus, Boggs, resulted v. therefrom.” Point State Painter, 641, 103 W. Va. 138 v. S. E. 321. See also State Lewis, 106, 86; 135 63 S. E. 2d State v. 133 W. Va. W. Va. Simon, 322, 513; 57 S. E. 2d State v. 132 Va.W. 725; 52 S. 132 W. 52 Reppert, E. 2d State v. Va. 820; S. E. 2d 82 E. State v. Va. S. Cooper, W. Allen,
Ann. 30 E. 1917D,453; Cas. v. 45 Va. S. State W. 209; Shawn, 873; v. State v. 40 W. 20 S. E. State Va. Shores, Rep. W. Va. 7 E. 13 Am. St. 875. S. Upon careful review and consideration of this case its that the de- entirety, my deep it is seated conviction error oc- fendant had a fair trial in which no prejudicial beyond curred overwhelmingly and that the evidence of the terrible guilt all reasonable doubt established his therefore, would, I degree. crime of murder of the first court and the judgment affirm the of the intermediate judgment judg- of the circuit court which affirmed ment of the intermediate court. a Corporation Company, Transit
Charleston Joseph P. Individually, Condry, as Commissioner Department of Motor Vehicles Virginia
West (CC 819) Decided March January 1955. Submitted *2 Riley, Judges, Given and dissenting. Thomas,
Spilman, Battle & Klostermeyer, Wood Boul- Jr., din, Thayer, plaintiff. Stuart W. Fox, General,
John G. Attorney T. D. Assistant Kaujfelt, General, Attorney for defendant.
Lovins, President:
This declaratory judgment proceeding was instituted the Circuit County Court Kanawha the Charleston against Transit Company Joseph Condry, individually P. and as Commissioner of Motor Department Vehicles of the State Virginia. plaintiff of West The and defendant will be hereinafter so designated.
The issue question at here is whether the municipalities Charleston, South Charleston and Albans St. have a right to a seat lawful and collect mile tax in tax or lieu thereof for operation passenger wholly buses within the corporate boundaries municipali- three ties, or should seat tax or tax mile in lieu thereof Virginia. the State of paid West plaintiff its petition alleging files the facts herein- City after stated. The of Charleston filed an intervening petition. The defendant demurred h> the petition of the plaintiff. The to' plaintiff demurred an intervening petition trial City Charleston. The court overruled the demurrer the defendant refused rule on but demurrer of plaintiff intervening petition filed Questions City of Charleston. on the arising ruling of the trial court on the defendant demurrer of were certified.
The petition of the plaintiff alleges that prior it operated a system of electrically propelled trolley cars occupied portion of certain streets in the three municipalities with tracks and Under appliances. other car authorizing operation franchise of the trolley system, the plaintiff fees, certain required pay was charges taxes for the operation system. of such In 1933 it trolley that the car was apparent system becoming obsolete and the to continue plaintiff desiring bus, transportation passengers by procured adoption of municipalities. ordinances the three Such provided ordinances in detail and at length some *3 and for regulation operation buses substituted Such for the trolley provided gradual cars. ordinances car trolley operation. abandonment of the Charleston, Town of The Cities of St. Albans 24th Charleston, on the duly adopted South ordinances 1939, and January, day May, day of the 23rd of the abandon- day April, permitted about the 28th electrically passengers by ment of transportation cars and authorized the sub- trolley plaintiff propelled purposes. provided for such Such ordinances stitute buses taxes on the fees, charges and of certain payment for the tax in lieu thereof. Since of a mile tax or seat basis mentioned, have municipalities above 1939, the three year transporta- of buses for operation passenger permitted for in the respective tax provided and collected the tion ordinances. 6,1954, and addressed January dated a memorandum
By transpor- authority certificates of all holders of hire, for the defendant made persons or tation of property mile tax passenger of all seat demand for Department from that date to the fees registration tax seat mile passenger and directed Motor Vehicles registration Department, to that paid fees should future, then, or in the regardless might of the fees which State West paid various Virginia. an upon opinion
The defendant his demand based Attorney January of this State dated General advising him that of that part Session, Chapter Legislature, 1951,Regular Acts of the 17-A, designated contrary to the Constitu- tion of this State. Section Article 10 of Subparagraph “* * *
idem, that, provides in For transportation passengers paid there shall be one-thirtieth of a cent for each seat total number passenger multiplied by the any miles that be traveled over public highway will state, this or or munici- any alleys any over streets within state, in this such pality during motor vehicles * * quarter year. That portion Attorney statute which the General characterized as unconstitutional his reads as follows: “The holders of a certificate of convenience and necessity authorizing transportation or property for person wholly incorporated hire city within or adjacent town within its area exceeding suburban three miles distant from the city boundary shall pay passenger fees and seat tax provided article, as. to such operation wholly within such city town to such city instead of to the department town of motor vehicles, provided city or town collect may *4 or fee tax for the operation wholly city within such or town lieu of not greater but than the fees and taxes provided article.”, in this Section Article Acts of Chapter Legislature, 1951, Regular Session, designated 17-A. The statute just is quoted portion similar to Section Acts of the Legislature, 1933, Extraordinary Session.
The pertinent portion of Section Chapter 60, idem, was before this Court in Transport Corp. Wheeling, v. 293, 302, case, discussing In
W. Va.
The defendant relies Constitution, X as Section Article quoted, well *5 which reads as “The credit of the State shall not follows: granted to, in county, township, or aid of any city, assume, or nor corporation person; shall the State ever or responsible become of any the debits or liabilities county, city, township, corporation person; or nor shall owner, State ever hereafter or joint become stock- holder in any or or company association this State else- where, for any purpose formed whatever.”
The grounds demurrer assigned by defendant are: That municipalities are not authorized to or collect any of the authorized by taxes Article 10 of that part Acts of the Legislature, 1951,Regular Session, designated Chapter 17-A, or as tax in lieu any thereof, for (a) the reason: portion That that of Article 10, idem, violates Section Article VI of the Constitu- State, (b) tion of that the the munici- payment any of the fees or tax or palities imposed required 10, idem, thereof, Article tax tax or in lieu or other any imposed thereof, or in lieu paid violates X of the Constitution.
The trial court overruled the demurrer petition as stated above. In a memorandum of made a record, of the the trial paid court held that the funds the municipalities should allocated and used for street purposes.
Upon such ruling, the trial court certified the following questions this Court: “1. The payment to the munici- palities fees, mentioned therein of taxes, or imposed or required 17A, by Chapter Article 10 of the Code of Virginia, 1931, amended, West [Chapter Acts of Legislature, 1951, Regular Session], or the payment to the of an municipalities amount lieu of fees, or other taxes imposed required by or the above- Code, section of mentioned violation of Article VI, Section 52 of the Constitution of West Virginia. mentioned therein of fees, taxes, imposed required by Chapter 17A, Virginia, Article 10 of the Code West amended, Legislature, Acts [Chapter *6 of municipalities or the to the Regular Session] fees, imposed in lieu or other taxes an amount of Code, is of by the above-mentioned section required X, of of Article Section 6 of the Constitution violation Virginia.” West
The trial demurrer court however did not rule on the petition City plaintiff intervening Charleston and raised on demurrer is any question such us. before
The plaintiff, in brief and raises a number argument, of questions certified, on the viz: bearing questions (a) That even though applicable is Constitution municipalities, municipal there is no that requirement ordinances contain a allocation of provision requiring funds from taxes to used and appropri- derived such a (b) provision ated highway purposes; for street into the ordi- such allocation be read requiring should if necessary nance three passed by municipalities (c) in con- constitutionality; sustain their that this Court 129, idem, 13, 10, should struing Chapter Section Article held uncon- 13, consider it though may Section even stitutional. subsidiary do not foregoing
We think that reach The conclusion we questions require discussion. on the certified discussion and determi- questions obviates nation of such questions. notice and discuss which questions
We are authorized to Albans, City record. Baier v. St. fairly upon arise 630, 637, 39 S. E. 2d W. Va. upon certified We to decide the prefer questions 13, 10, Article of that of Section constitutionality Ses- Regular the Legislature, Acts of Chapter 13, Article sion, 17-A. Section designated Chapter idem, clear, definite, certain statement is or inter- no construction requires intent legislative intent, by as indicated legislative pretation. it
statute, permits clear is mile tax or tax lieu thereof collect a seat impose and passenger buses operation wholly within No in Ar- corporate authority boundaries. will be found idem, ticle for the collection the state and payment into the state treasury the funds derived from taxes assessed on the operations pas- intra-urban senger 13, idem, If legislative buses. Section is a valid enactment, the taxes paid must be to and used and the municipalities, authorities this state have no concern in the or collection of intra- such tax on urban operation of passenger buses. 129,idem,
Is Section 10 of Chapter violative of Article Article VI and Section Article X of the Con- stitution of this State? Before specifically passing on those questions, necessary say that Section X *7 of the Constitution upon Legislature confers to power cities, authorize the of authorities towns and villages to assess and collect their taxes within territorial juris- diction. The three of the Constitution here con- provisions 9, X, sidered should together. be read our Constitution reads as Legislature follows: “The may, by law, authorize the corporate cities, authorities of villages, towns and to corporate purposes, assess and taxes; uniform, collect such taxes shall but respect with to persons property jurisdiction within the authority imposing same.” 52, VI,
Section Article
of the Constitution has
given
been
a contemporaneous construction or
for ten
interpretation
years more
people and the courts. We do not feel
that we should disturb or overthrow it since such con-
struction or interpretation is not plainly wrong.
v.
Harden,
313, 323,
62 W. Va.
et
60 S.
seq.,
E. 394. See Simms
County Court,
867,
v.
134
61
W. Va.
S. E. 2d 849. The same
principle is
statutes,
likewise
applied
though
above
noted, the construction of the statute is not involved here.
Brandon
Control,
See
v. Board
417,
84 W. Va.
100 S. E.
215;
Vest,
Ballard v.
136 W. Va.
65
649;
S. E. 2d
State v.
County Court
County,
Kanawha
137 W. Va.
70 S.
260;
2dE.
Fidelity
Sims,
Mut.
Ins. Co. v.
140W. Va.
Life
659 There is another constitutional appropriate principle law, long jurisdiction. established- and followed in this Statutes ex- will be held violative the Constitution a it cept necessary clearest cases and where is Shallcross, decision of the v. 6 controversy. Bridges W. Va. doubt, et free from seq. question “Unless is duty legislative the courts to uphold acts constitutional.”, Pinson, Booten v. 77 89 W. Va. Court, S. E. 985. Commission v. County See Road 112 W. 815; See, Va. S. E. Cosner v. 42 E. Va. S. W. Lingamfelter 566, 573, 2d 31. Brown, 132 W. 52 E. Va. S. 2d 687. cogently
As an on pointed out eminent writer law, question constitutional contained provisions Constitution should be the courts applied by according understanding common everyday requirements thve life, since the who for it people voted must have so them, understood it. “The people make [constitutions] them, people adopt must people supposed read them, common-sense, with the and cannot help be pre- sumed to admit in them meaning recondite extraordinary gloss.” Constitution, on the Fifth Story Edition, Section 451. language
When the used in Section Article VI of the considered, Constitution is it is that such persuasive Sec- only tion applies state funds and the use appro- *8 priation by thereof the rather than legislature by munici- pal refunds”, councils. Such as “statutory words “legisla- tive appropriation” “appropriation” are found Sec- 52, tion Article of the Constitution. may VI Those words to applied by actions common council but common under- standing such terms the acceptation confines to state Jur., legislature rather than II Am. municipal offices. See Law, Constitutional Section 79. think that the We purpose 52, of in adopting this state Article people Section Constitution, VI of the the by was to diversion prevent of legislature funds derived from the named sources provision the constitutional than purposes other the reconstruction, of construction, and maintenance repair princi- of interest and and the public highways; payment issued. or thereafter pal on road bonds theretofore it has the many years that been It is known for well con- State to taxes of of this practice municipalities mile taxes of streets other than seat nected with the use has before practice prevailed or tax lieu thereof. This the 52 Article of the of Section of VI adoption and since of people do not think that Constitution. We State, by of such constitutional adoption provision practice. that upon change intended to innovate Constitution, 52, VI, of does Section Article Since finance, municipal in terms taxes or municipal apply power legislature, we hold that under the plenary that authority body conferred on as well as the direct 9, Constitution, X of the enactment Section Article 129, Acts Section Article that Session, designated Chap- Regular Legislature, 17-A, of legislative ter is a and constitutional exercise valid power.
The
contends
Section
defendant
idem,
Section
Article X
violates
Constitution,
in that
extends the credit of the state
There is merit to
no
such contention.
municipalities.
raised
imposed by
funds
taxes
been,
not,
nor
municipal
they
are
funds
are
have
ever
Hence, it
funds.
never accrued to the state.
They
state
follows
the credit of the state has not been extended
the three
nor has the state
municipalities,
assumed
for
responsible
become
the debts
such municipalities.
course,
belonged
Of
the funds
to the state and were
if
debts,
legislature
appropriated by
local
Constitution,
would,
Article X
in all
probability,
prevent such
apply
appropriation, as was
Sims,
v.
in the case of Charleston
132 W.
held
Va.
Berry
Fox,
v.
S. E. 2d
See
W. Va.
where the police power advancing cause aviation, public of was invoked.
There is no in applicable constitutional requirement or statutory provisions requiring pass- that ordinances by ed a tax municipalities levying three seat mile in thereof, tax lieu by as Section Article authorized that part Chapter Acts the Legislature, Regular Session, 17-A, designated Chapter as be allocated purposes. trial court in error roads street in ruling its to that effect. The funds derived from seat mile tax or tax lieu by thereof the three munici- levied Charleston, palities South Charleston and Albans St. may be used the municipal authorities of the three general or for municipalities for road or street purposes as their discretion purposes may dictate. trial
Accordingly, ruling court Sec- holding tion that Acts of the part Legislature, 1951, Regular designated Session constitutional, But, is 17-A affirmed. insofar as the ruling of the trial court which requires the named munici- allocate ordinances the funds from seat palities derived tax mile or tax in lieu thereof street or road purposes, ruling is reversed. part;
Affirmed
reversed in part.
Given, Judge, dissenting: strange may seem,
As majority permits legislative case enactment override destroy a constitutional provision, Good Roads Amend- ment, 52 Article The effect of holding VI. Legislature may levying, now authorize the collection and all expenditure any and revenues referred amendment, in the constitutional including all revenues fuels, derived from other gasoline, motor motor vehicle *10 taxes, fees or “and all other revenue registration license fuels”, by from or motor munici- derived motor vehicles subdivisions, other without re- governmental or palities to the quiring application the of such revenues “construction, or the State improvement” reconstruction on all the and roads, principal “the interest payment or or may be hereafter road bonds heretofore issued which no not do Legislature That will so possibly issued”. the are here concerned with problem. only the We answer to to act. Legislature of the power 52 of Article of the Constitution was sub- VI held general a vote at the election people mitted to 3, 1942, pursuant provisions November Legislature. chapter In of the Acts amendment should be proposed was directed that on the Balloting known the “Good Roads Amendment”. “For ratification to be proposed required amendment was ” “Against or Ratification Roads Amendment’ of ‘Good the proposed ”. Publication of Roads Amendment’ ‘Good a county in each which in some newspaper amendment to made at least required was newspaper published Thus, no there can be three months to the election. prior of the understood that the purposes that the people doubt of the solely good amendment related roads proposed State, municipalities. alleys pur- not to streets amendment, help system a poses provide good State, and to establish and stablize roads for the entire State, were, are, com- Roads bond market Good knowledge. mon
I no to demonstrate the manner way think of better amendment has meaning constitutional which amendment, destroyed quote twisted and than to been and insert within the added quote, parentheses, within meaning by majority opinion, or effected changed by revenue collected munici- follows: “Revenue (except subdivisions) other from governmental gasoline palities taxation, other motor fuel excise and license motor taxes, and license as such registration (except vehicle buses) relate and all other revenue revenues derived buses) (except motor or motor fuels (except from vehicles shall, (within dis- motor fuels used municipalities) of statutory- cretion of the after deduction Legislature) (or or other by municipalities refunds refunds authorized subdivisions) and costs of administration governmental (or by legislative appropriation, authorized and collection subdivisions) other governmental construction, reconstruc- solely and used appropriated (includ- tion, maintenance of public highways, repair and also the of the interest alleys) streets and ing (and alley on all road bonds street and and principal State, a bonds) (whether munici- heretofore issued *11 subdivision) or which governmental may or other pality or construction, hereafter reconstruction be issued (including public highways, streets improvement incurred in the alleys) obligations and the reconstruction, construction, and maintenance repair highways (including alleys. streets and Provided: public tax or other by municipality That such collected any need not be or appropriated subdivision governmental or An alleys).” attempt for or streets highways, used public language harmonize the the amendment with language in parentheses, necessary included language holding, clearly of the meaning majority to reflect position majority. the impossible reveals amendment, view, in my language plainly The that all revenues derived from the definitely requires amendment, undoubtedly in the which designated sources imposed by question, include the tax statute Legislature and used solely appropriated therein mentioned. There is no ex- the specific purposes and no language, even hinted words used ception could possibly from any exception implied. which that the Legislature the least indication not There collection or delegate levying, ex- power to have revenues to any municipality, penditure revenues could be used for any purpose of such “construction, or improvement” than reconstruction other contrary, language On the of the roads of the State. of the constitutional amendment plainly specifically to all from applies revenues derived the sources therein mentioned. The majority attempt dares find in the amendment even language justifying, by impli- cation, any such The exception. language the amend- ment is simply ignored or by-passed.
Since the Court holds that the Legislature may authorize a municipality tax, and collect the seat mile that such a tax is not prohibited by constitutional that, amendment seems indisputable same rea- soning, the Legislature could authorize other governmental subdivisions to collect any “Revenue from gasoline and other motor fuel excise and license * * * taxation, and all other revenue derived from motor * * vehicles or motor fuels referred to in the amend- ment. The plain effect of the majority holding is to re- establish the law precisely as it was before the adoption of the amendment. It renders the amendment totally without effect in so far power as the of the Legislature is concerned. Legislature power now has to accomplish precisely what it could have done before the adoption the Good Roads Amendment. The Good Roads Amend- ment a dead is now amendment. Transport
The case of Corp. v. Wheeling, 115W. Va. 175S. E. cited the majority opinion, does not support *12 the majority view. That decision made was prior the adoption constitutional amendment. The adoption of the constitutional amendment of itself invalidated all existing in statutory provisions conflict therewith. See & Co. v. City Newport News, 105Va. 52 S. E. Swift 821, L.R.A., N.S., 404. The majority invoke, would support conclusion, its a supposed years “ten or more” of contemporaneous con- struction. The statute not enacted until There- fore, no ten years construction, contemporaneous or any time whatever long construction would possible. The fact municipality may that some have collected such a tax involved, by as here virtue of a statute invalidated by the amendment, of the constitutional adoption can not amount Moreover, the language construction. to contemporaneous that the rule of and plain clear of the amendment is so no application. can have construction contemporaneous S. E. Review, 138 W. Va. Flesher v. Board See collection certainly, the cited. Most cases there 2d ordinance, municipal a' tax, only by a authorized of such construction of contemporaneous not be treated as should amendment. a constitutional its under Legislature, argues that majority 9 of Article virtue Section by as well as power,
plenary legis- Constitution, to enact power had X of the State that no course, question there is Of lation here involved. cases, munici- authorize Legislature may, proper clear and It just taxes. is and collect palities in that Legislature however, certain, power that of a by adoption by people limited may be respect amendment. constitutional majority by reached view, the conclusion my
In in the opinion expressed with the views in accord not Commission v. rel. Road ex State case the recent 114,82 E. 2d State, 140 Va. S. W. O’Brien, Secretary of “* * * VI, merely it is stated: wherein gasoline, all from into revenues a fund which creates taxation, motor vehicle fuel, and license motor excise other revenues, de- fees, and all other license registration fuels, vehicles, go, or motor shall motor from rived the con- for only funds be used that shall provides high- of public struction, improvement reconstruction therein. incurred obligations and the ways, the fund created self-enacting, and is not section This for enactment its resources. legislative rely upon it must into the revenue shall come any not provide It does enactment, if, legislative fund, it does provide but sources, they may go certain derived from taxes are In purpose. used for other other fund or be into into fund do not words, go which moneys other State, revenues of general constitute only but general purposes, can not be used they since *13 * * specified Amendment purposes I indicated, dissent. am Being of the I respectfully views authorized to in this say Judge Riley concurs dissent. We are of 13 of Article 10 of Sub- that Section 17A of chapter Legis- 129 of the Acts of the lature is clearly conflict Section 52 of Article VI with the State Constitution.
Cargill, Inc. Eastern Growers Grain 10688) (No. January 18,
Submitted 1955. Decided March Lovins, Given, Judge, dissenting. President Martin, Jr., Seibert, Martin &
Clarence E. for plaintiff in error. Byrer, H. defendant error.
Harry Judge: Browning, interpleader
This is an under primarily proceeding Code, Section of the provisions