*1 404 mary judgment appellee. reversing that the existence of a to the repeatedly
have held order, majority unreasonably duty generally question of ex- defendant’s duty pands concept Conversely, tort law and jury fact determination.” ambiguity stated, adds of who determines law repeatedly has also howev- duty the existence of in the first instance. er, that “[t]he determination whether Accordingly, respectfully I dissent. duty plaintiff is owed a of care the defen- dant must rendered a matter of law I am authorized to state that Justice Fritts, 494, the court.” v. 193 W.Va. Jack joins in McCUSKEY this dissent. 498, 431, (1995), citing 457 S.E.2d 435 Pars- ley Acceptance Corp., v. General Motors 167 (1981). 866, 870, 703,
W.Va. 280 706 S.E.2d Whitworth, 262,
See also Miller v.
193 W.Va.
(“We
(1995)
821,
courts and A whose Corporation, ity duty it is to determine the existence of a Most Reverend Schmitt, Bishop Bernard W. puzzled a tort case. I am now and ask Dio Wheeling-Charleston, Appel cese of question. same lants, Finally, culprit if there is a this case appellant’s inju- who should be liable for the
ry, Wheeling, dumpster. Municipal it The A is the manufacturer of the Corporation, Dumpsters Appellee. are made to hold all manner of heavy dumpster materials. The at issue City Wheeling, Municipal A tipped simply should not have over because Corporation, Appellee, placed construction materials were it. design The fact that it did so indicate a Ohio defect. Education, Appellant. conclusion, agree with the circuit Nos. 25402. finding court’s that “in the absence of ex- circumstances, traordinary person who dis- Supreme Appeals Court of poses dump- of nonhazardous materials Virginia. duty dispose ster has no of those materials Submitted Nov. way in such a as to assure that worker Dec. Decided emptying dumpster injury avoids extraordinary that no circumstances were
present Therefore, case.” would
affirm granting the circuit court’s order *2 Morgan Morgan, Esq., Young,
Gregory A. Cann, Attorney Clarksburg, Virginia, & West City Clarksburg. McNeer, Jarvis, Highland, Esq., J. Cecil Varner, Clarksburg, Virgi- McMunn & Eddy Eddy, Esq., & nia and Thomas G. Osterman, Pittsburgh, Pennsylvania, Attor- Inc., Grandeotto, neys et al. Esq., City Houdysehell, At- L. Jendonnae Attorney Virginia, torney, City Huntington. for The Jr., Casey, Esq., J. Nicholas Webster G. Henson, Arceneaux, III, Esq., K. Sandra Glasser, Lewis, Casey Friedberg, & Esq., Charleston, Rollins, case, Grandeotto, Inc., Folio, Kathy and Clif- A. Mid- Levine, Blume, Co., Esq., Esq., City Folio, ford B. High- Peter K. Land Bernard J. d/b/a Gaul, Jr., Associates, Folio, Esq., Cathy Kathryn Stuart C. M. Arm- Joseph rise V. (the Grandeottos) strong. Esq., Thorp, Armstrong, Reed & A. July Folio Pittsburgh, Pennsylvania, Attorneys 1997 order of the Circuit Court of Harri- *3 Bishop County, Virginia, Schmitt. granted son West which summary judgment City Clarksburg to the of Buch, Bailey, Esq., Harry Preston L. John pay and ordered the Grandeottos to the fire Harman, Esq., Bailey, Riley, Buch & Wheel- protection case, In the fee. second Gardill, ing, Virginia West and James C. Schmitt, Bishop Bernard W. of the Roman Esq., Gardill, Phillips, Altmeyer, Kaiser & Wheeling-Charleston Catholic Diocese of Wheeling, Virginia, Attorneys West (the Diocese), Bishop appeals the June Wheeling College. 1998 order of the Circuit of Cabell Musser, Esq., Rosemary Ronald M. J. County, Virginia, granted West which Humway-Warmuth, Esq., City Wheeling of mary judgment City to the of Legal Department, Wheeling, Virginia, West pay and ordered the municipal Diocese to Attorneys City Wheeling. for The of case, Wheeling service fee. the third (now College, Companion, Esq., Schrader, F. Inc. James Jesuit Universi- (the ty) Bishop Byrd Companion, University and Schmitt Wheeling, Virgi- & and Diocese) nia, Attorney County for the well as the Ohio Ohio Board of (Board) Education Au- Education. gust 1998 order of the Circuit Court of Musser, Esq., Rosemary Ronald M. J. County, Virginia, granted Ohio Humway-Warmuth, Esq., City Wheeling, of partial summary judgment City to the of Houdysehell, Esq., City Jendonnae of Hunt- Wheeling in that the court found the Univer- Fanok, ington, Esq., City Morgan- Steve Diocese, sity, and Board must the fire town, DiBartolomeo, Esq., City Joe of Weir- service fee. Other issues were reserved for ton, Matkovich, Esq., City Beckley, Mark further consideration.1 That order was de- Jerabeck, Charleston, Esq., City Jill John by final, termined appeal- to be a Bluefield, Feuchtenberger, Esq., City Amy August able order order entered Haynie, Charleston, Esq., City of South amici brief. I. Withrow, Esq., James W. The first case involves individual landown- Inc., Municipal League, for amicus brief. property ers who own within the Clarksburg. enacted and amended
PER CURIAM:
imposing
protection
ordinances
fire
and
The three cases before us were consolidat- waste collection service fees under the au-
argument
opinion.
(1971).2
ed for
thority
and
In the first
of W.Va.Code
facilities,
parks
The court reserved three issues
cleaning,
for further con-
and recreational
street
lighting,
improve-
sideration and action: the
owed
street
ment,
street
amounts
maintenance and
Board;
sewerage
University,
sewage disposal,
and
and
and the
refuse, waste,
disposal
garbage,
binding
collection and
ashes,
City,
settlement existed between the
matter,
Diocese;
any
trash
other similar
shall
and whether delin-
plenary power
authority
provide
have
and-
quent
fire service fees were owed
the Board
installation, continuance,
ordinance for
prior
City Hunting-
to this Court’s decision in
service,
improvement
maintenance or
of such
ton v.
196 W.Va.
which is fee. Clarksburg Department. Fire The fee the City attempted unpaid The to collect forty-two percent comprises approximately Bishop from the or Diocese for the two $1,809,000. budget department’s the fire City by filing located in the an action pay The individual landowners refused parties moved in circuit court 1997. Both against fees assessed their the 21, 1997, judgment. July summary On for Clarksburg properties. City The various Bishop granted partial the in circuit court in an effort to filed actions mary judgment, stating April that the 1992 unpaid fire fees. The collect the actually 1994 fee constituted a June Af- were consolidated the court. actions against could not levied the tax which be discovery, parties ter the made a extensive granted partial Bishop. The same order motions, dispositive con- series of which were summary judgment City, stating for verted the court to Rule 56 motions municipal period “the service fee summary judgment. July the On 24, through April July 1994 1997 consti- City’s summary granted court the motion for fee, tax, can levied tutes a not a judgment the motion and denied landowners’ By entered against the Defendant.” order summary judgment. The court deter- 4,1998, the court found the Diocese was June by each mined the amount owed landowner payment City the of the service liable to paid. It and ordered that the fees be is from owed was determined fee. The exact amount appeal. that the landowners this order 12, 1998. by order of court entered on June appeals.
It from this order the Diocese II. III. City of
In the second the which third involves two cases brought against the Diocese to The an action Pur- the circuit court. unpaid municipal were consolidated collect service fees on two (1971), § the buildings City. pur- The suant to W.Va.Code located within the City enacted Ordinance defray pose fee the costs of of the defray 793.03, purpose § of which is to the providing protection. fire and flood Pursu- 8-13-13, City providing fire § the the costs of ant to W.Va.Code City Wheeling. Owners of residen- Huntington enacted Ordinance 773 .03 a flat annual unit structures are assessed began charging municipal service fee tial fee; unit structures owners of nonresidential July The fee is assessed as a flat fee square a rate on the are assessed based an additional amount as- on each lot with nonresi- footage building; tenants of space in square each foot of floor sessed for W.Va., Supremacy City is barred the holds that the 999 United.States denied, collecting Cir.1993), (4th from Clause of the U.S. Constitution 510 U.S. F.2d 71 cert. (1994), government. fee from the federal L.Ed.2d 371 the service 114 S.Ct. 127 Bacon, ington unit dential and residential structures are fee; owners assessed a flat or lessees The we must answer per a flat fee vehicle. vehicles are assessed whether the circuit courts erred determin- exempts no one from The ordinance ing appellants municipal must fee; however, does the fire service service fees which were and fire assessed buildings not issue bills to itself against them. City. name of vehicles titled City Huntington filed suit University.and Diocese filed an action The Bacons, against who were owners of City seeking against the a declaration buildings City. located The Bacons actually a tax the fire service fee is municipal refused to service fee. they exempt pursuant W.Va. They maintained the fee was a tax which (1998).4 instituted violated the Tax Limitation Amendment. collection action the Board. The disagreed The circuit court and concluded posited essentially Board the same defenses properly the fee was a user fee which was to the fire service fee that the imposed pursuant to W.Va.Code 8-13-13. court, Diocese in their action. The raised This Court affirmed the circuit court. therefore, the two actions. Fol- consolidated lowing discovery, parties filed cross-mo- brought declaratory also *5 summary judgment. tions for The circuit judgment action the Cabell August court entered an order on Education, seeking to determine finding that “the Defendants are authorized the fee whether could be recovered from the imposed by the fire service fee light Board of United States v. City Wheeling[.]” Having reserved cer- W.Va., supra. consideration, tain issues for later Court, was certified to this where it was August finding entered an order on county that determined boards of education prior that the order of the court “constitutes pay municipal are authorized to service fees. final, appealable It is from this Order.” We note that the federal United University, order the and Board W.Va., City Huntington, supra, States appeal. prior was written to this Court’s Bacon deci- sion. The Bacon Court determined that mu- IV. nicipal service fees are indeed fees and not appeal, appellants On the various of taxes. The Bacons and the Board of Edu- assignments fer various of error. The Gran subject cation were found to be to the fee argue Clarksburg deottos fee is a tax though government even the federal was not which violates the Tax Limitation Amendm obligated pay pursuant Supremacy ent,5 equal process, protection. due Clause, VI, Article 2 of Clause the U.S. Con- Diocese, University, and the Board ar By way explanation, stitution. this Court gue they do not have to because the stated: government pursuant federal is immune W.Va., involved, entity a federal [W]here United States (1998)6 federal courts determine supra, and 11-3-9 ex W.Va.Code empts along particular funding employed by them from taxation with the mechanism is, fact, government. parties political All request federal a state or its subdivision decision, prior we revisit our Hunt- a tax[.] (1998) (9) for, pertinent Property belonging 4.W.Va.Code states in or held in trust seminaries, part: schools, colleges, academies and free (a) educational, property, personal, literary pur- All real and scientific described if used subsection, books, and to the extent herein limit- poses, including apparatus, annuities and ed, exempt from taxation: furniture[.] States, (1) Property belonging to the United property permitted Const, other than the United X, § 5. W.Va. art. law; Slates to be taxed under state (5) Property exclusively used for divine wor- supra 6. See note 4. ship; MAYNARD, Justice, therefore, dissenting: follows, not that a state is It by a federal court’s characterization bound dissent because believe Catholic right is or fee when a federal of a state tax Church, churches, public as well as all and all all, previ- After as we have not involved. exempt and other schools are under W.Va. stated, free to determine ously states are this wolf- long the fiscal policy fiscal as their own garb ish tax which is cloaked policy does not violate Constitution sheepish fee.1 omitted). (citation States United First, great importance I note the 464-65, at 750-51. The Bacon at municipal taxes at issue here. Government apply holding did not Fourth Circuit’s performs important no more service than Education. The or the Board of Bacons protection. providing its citizens with fire appellants the case same is true for very govern- This is a basic and historical judice. sub service, private ment and one that citizens previous reiterate this Court’s We are unable to undertake for themselves. holding states: service, provide govern- order to local in each structure on the lot purpose of
upon the an annual rate An ordinance which [1971] fee square footage upon pursuant defraying the owners of plus the cost imposes municipal percentage W.Va.Code, space buildings at of fire and contained the sole based 8-13- ments must staff trained those who protection. This is at it should be. This nel with modern generated requires personnel reap a lot of benefits firefighting equipment. money. provide levying departments of effective fire This these of taxes on person- with rath- flood is a user fee However, X, § Article 1 of the Constitution therefore, er than a tax and is not Virginia provides, part, of West *6 of the Tax Limitation Amendment violation educational, literary, “property sci- used X, § 1. found in Const. Art. entific, purposes ... religious or charitable may by exempted taxation.” law be from 6, Bacon, Syllabus swpra. Point authorization is codified This constitutional that: We also reiterate § Legislature in 11-3-9 the W.Va.Code § W.Va.Code, [1933], Specifically, 11-3-9 a W.Va.Code to 18-5-9 Pursuant provides, pertinent part: in county to board of education is authorized Syllabus pay municipal pupils and in order to municipality grounds [1971] in order to Point and pursuant buildings for fire and service fee protect to W.Va.Code, supra. in good keep the health of flood imposed by a order. its school its tent herein the tion: scribed States, (1) Property belonging to the United (a) United All other than in property, States to be taxed under limited, subsection, property permitted real and exempt and to personal, from taxa- the ex- state de- law; granting circuit courts did not err summary judgment in the Cities of favor of exclusively (5)Property for divine used Wheeling. Clarksburg, Huntington, and Ac- worship; respective judg- cordingly, we affirm the Property belonging or held ments of the Circuit Court of Harrison Coun- seminaries, for, colleges, academies trust County, ty, of Cabell the Circuit Court educational, schools, if used for and free County. the Circuit Court of Ohio including literary purposes, or scientific books, apparatus, and furniture[.] annuities
Affirmed.
pellants
25143 should not
specifically
in case number
1. I
to this Court’s decisions
dissent
since,
involving
"fee” at issue
unlike churches
25401 and 25402
case numbers
schools,
exempted
they
under
are
not
and boards of
Roman Catholic
ap-
W.Va .Code 11-3-9.
education.
I believe there is no reason
derives,
will
part,
least in
the board of education
be forced
at
This code section
year
recognition that those enumerated
almost one million dollars
out
from the
pub-
supported
budget
school
as a result of this “fee.” This
which are
institutions
gifts,
“fee,” therefore,
lic,
private
really
paid by the
taxation or
a tax
either
educational, literary,
the detri-
and that exist
school children Ohio
scientific,
enrichment
religious,
Regardless
or charitable
ment of their education.
society
fulfill their missions absent
should
whether the collection of the
is called
altogether
fee,
taxation. This is
the burden of
a tax or a
it has the same effect on the
however,
majority,
fitting
proper.
wrote,
Shakespeare
appellants’
finances.
sophistry in order to
resorts to semantic
by any
“That which we call
rose
other
language
unambiguous
of W.Va.
avoid
as sweet.”2 The Bard’s
name would smell
short,
majority
§ 11-3-9.
In
holds
equally
regarding
words are
true
the noxious
it is called a fee.
that a tax is not a tax when
we call a tax
odor of taxes. That which
just
name
as bad.
other
smells
a “fee” it
holding
that if a tax is called
law-
can
levied
those institutions
sum,
agree
with the United States
taxation,
fully exempt
opens
Appeals,
Court of
Fourth Circuit
United
government
for unlimited
col-
wide the door
States v.
pen-
lection of so-called fees. Government’s
in its assessment that the
user
ability
depends
for taxation
on its
chant
thinly disguised
fee “is a
tax.” 999 F.2d
increasingly
expensive
devise
creative and
all the
believe this is true of
justify
levying
the need for the
schemes
Further,
Ap-
involved here.
the Court of
long now
additional taxes.
It will not be
peals
government
that
held
the federal
legitimate
before
“fees” for fire and flood
paying
immune from
these exact same fees.
joined by
questionable
more
Therefore, I would hold that if the federal
fees,
fees,
air
“fees” such as recreation
clean
“fee,”
government
is immune from
fees,
fees,
pav-
pollution
beautification
road
entities
11-
other
listed W.Va.Code
fees,
fees,
fees,
ing
garbage
cultural event
say
3-9 are also. To
otherwise is a clear
fees,
fees,
sporting
regatta
parking
event
equal protection
denial of
to the churches
Anyone doubting
prolifera-
fees.
such
Sadly,
and schools.
their recourse now must
government
tion
“fees” could and will oc-
things right.
be to the federal courts to set
only
history
cur
look at the
of taxation
need
Accordingly, I
would find
W .Va.Code
century
in the
in the twentieth
United States
exempts
Diocese and
*7
Also,
to be convinced.
while the above-men-
the “fees” at
This
issue.
“fees”
be collected to
tioned
clearly
instance in
the Diocese
one
things,
la-
desirable
these “fees” should be
should not be bound to render unto Caesar.
they really
beled what
are: taxes.
majority
By holding
contrary,
power
power
“The
to tax involves the
opinion opens the door to additional taxes
destroy,” noted Chief Justice John Marshall
increasing
and an
burden on those institu-
U.S; (4 Wheat)
Maryland,
in McCulloch v.
are,
our
tions
under
Constitution and
316, 431,
on teachers’
ment, building improvements. In his oral Court,
argument lawyer before this
the Ohio Board of Education and contended that Jesuit
2. Romeo and Juliet. Act II, Sc. Line 43.