Kline v. McCloud

326 S.E.2d 715

W. Va.

1985

Check Treatment

Michael KLINE, et al. v. Jim McCLOUD, et al., etc.

No. 16042.

Supreme Court of Appeals of West Virginia.

Dec. 14, 1984.

326 S.E.2d 715

Dissenting Opinion Jan. 8, 1985.

stantiated charges, even given the exist- ence of probable cause to initiate an inves- tigation, ought immediately to be open to the public. For example, a lawyer might find himself in the position of being able to defend himself against some charge only by exposing material that ought to be kept confidential. It would be preferable in my opinion, to permit unrestricted public exam- ination only after a case has been conclud- ed by the Legal Ethics Committee.

Furthermore, in light of the fact that newspapers are primarily, and by economic necessity, in the entertainment business it is not advisable to splatter unfounded alle- gations against lawyers on the front page, in bold headlines above the fold. Clients, like nervous investors on the stock ex- change, can be frightened all too quickly by rumors. Therefore, I believe that the ma- jority was too expansive in setting the “pa- rameters” of the public‘s access to lawyer disciplinary proceedings.

Jacqueline A. Kinnaman, W.V.E.A., Charleston, for appellants.

James E. Cain, Pros. Atty., J. Fred Queen, Elkins, Lee O. Hill and Charlotte R. Lane, Jackson, Kelly, Holt & O‘Farrell, Charleston, for appellees.

MILLER, Justice:

This case involves the valuation of ap- proximately 35,000 acres of timberland in the Middle Fork and Roaring Creek Dis- tricts of Randolph County, West Virginia owned by Westvaco Corporation (herein- after Westvaco). The appellants are citi- zens and taxpayers of Randolph County who challenged the value of Westvaco‘s property, as set by the county assessor, before the Randolph County Commission, sitting as the Board of Review and Equali- zation (hereinafter Board of Review).¹ They sought to have the assessor‘s value placed on Westvaco‘s property increased to reflect its purchase price. Both the Board of Review and the circuit court concluded that deed values could not be used as evi- dence of true and actual value because there had been an appraisal of the property in 1965 by the State Tax Commissioner. We believe this ruling to be in error.

The facts are not basically in dispute. For the 1982 tax year, this land was valued at an average of approximately $13 per acre. The appellants contend that this val- uation is far below the true and actual value of the land, as shown by the fact that Westvaco, by its deed values, paid more than eight million dollars for it.² They also allege that approximately 7,670 acres owned by Westvaco were omitted from the tax books for 1982.

In February, 1982, the appellants applied for relief to the Board of Review, which set the matter for hearing. During the hear- ing, the appellants introduced deeds given to Westvaco by the McMullans, former owners of the land. One deed conveying 11,776 acres recited a consideration of $2,148,994, or approximately $180 an acre. A second tract covering 23,366 acres was subject to a lease purchase agreement in- volving a rental of $480,000 a year pending the purchase at a price of six million dol- lars, or approximately $260 an acre. The appellants also introduced entries from the 1982 land books for the tracts involved, showing that Westvaco‘s assessments on the various tracts ranged from a low of $9.60 per acre to a high of $33 per acre.

Westvaco admitted purchasing the prop- erty, and indicated that it paid $8,000 a year in taxes on the property. One of Westvaco‘s witnesses was Sherman Stal- naker, who had been the assessor of Ran- dolph County for twenty-one years. He testified that he used a 1965 State Tax Department appraisal as the basis for his valuation, and that he did not change the valuation on property when it was sold. Under the 1965 appraisal, timberland was valued at $15 an acre. Mr. Stalnaker also stated that if he raised the value of West- vaco‘s land, he would have to increase the value on residential property in order to preserve equality of taxation.

Counsel for the appellants took issue with some of Mr. Stalnaker‘s statements, asserting that recent sale prices had been considered in valuing some property not belonging to Westvaco, and that the values on the appellants’ properties were closer to true and actual value than the value on Westvaco‘s land. Counsel for both West- vaco and the appellants repeatedly urged the Board of Review to examine the tax records concerning other property in Ran- dolph County. The Board refused, stating that the only issue properly before it was the true and actual value of Westvaco‘s property, and that evidence concerning the value of other property was irrelevant.

After hearing evidence and examining the various deeds submitted in this case, the Board of Review upheld the valuation used by the county assessor. Its ruling was affirmed by the Circuit Court of Ran- dolph County.

I.

Westvaco argues that we should af- firm the decision of the lower court be- cause there was substantial evidence to support the assessment. This, however, is not our traditional test for appellate review in tax assessment cases. We have histori- cally utilized a two-pronged inquiry: first, whether there was sufficient evidence to support the circuit court‘s findings; and, second, whether there was an error of law. We summarized this rule in the single Syl- labus Point of

In Re Assessment of Union Carbide Corp., 157 W.Va. 631, 203 S.E.2d 370 (1974):

“This Court will not reverse the order of a circuit court by which the valuation for taxation purposes of ... property was reduced on ... appeal, except [for] an error of law, or where the court‘s action was clearly not supported by a preponderance of the evidence.” Sylla- bus pt. 2,
Western Maryland Railway Company v. The Board of Public Works, 124 W.Va. 539, 21 S.E.2d 683 (1942).

II.

Westvaco argues that if its property were assessed at a higher value to reflect what it paid in acquiring the land, this would violate the equal and uniform taxa- tion provision of our State Constitution, W.Va. Const. art. X, § 1⁵ because recent sale prices have not been considered in assessing other property in the county. Westvaco attempted to show the Board of Review that other property was valued from the Tax Commissioner‘s old apprais- als, and such values were less than true and actual values. There was some dis- pute as to whether the tax assessor was utilizing deed values to update property values. None of these points were devel- oped below by evidence because the Board of Review believed they were irrelevant.

The question is: May an assessor supple- ment the Tax Commissioner‘s appraisal re- port with information obtained from prop- erty owners or from recent deed values to determine the true and actual value of property without violating the equal and uniform provisions of our State Constitu- tion?

Our research discloses very few cases dealing with this precise issue. In

Meyer v. Cuyahoga County Bd. of Revision, 58 Ohio St.2d 328, 390 N.E.2d 796 (1979), a local board of education filed a petition with the county board of tax revision to have the Meyers’ real estate reassessed to reflect its 1973 purchase price of $120,000. The property‘s value had been established at $43,410 by the county auditor‘s 1970 sexennial appraisal. The board of revision increased the value to $120,000.

The Meyers argued on appeal that using the purchase price rather than the sexenni- al appraisal figure violated equal and uni- form taxation principles because other homeowners’ properties were valued ac- cording to the sexennial appraisal.

The Supreme Court of Ohio noted prior cases in which it had “rather consistently held that the best evidence of true value is the actual sale price of the property in an arm‘s length transaction.”

58 Ohio St.2d at 333, 390 N.E.2d at 799. The court went on to address the unequal taxation issue arising from the Meyers’ claim that other property owners’ values were based on the sexennial appraisal rather than deed sales, quoting from :

“The rule is well settled that a taxpayer, although assessed on not more than full value, may be unlawfully discriminated against by undervaluation of property of the same class belonging to others.... But, unless it is shown that the underval- uation was intentional and systematic, unequal assessment will not be held to violate the equality clause.”

Finding no intentional and systematic discrimination, the court in

Meyer refused to grant any relief, giving this general summary:

“The system of taxation unfortunately will always have some inequality and nonuniformity attendant with such gov- ernmental function. It seems that per- fect equality in taxation would be utopian, but yet, as a practicality, unat- tainable. We must satisfy ourselves with a principle of reason that practical equality is the standard to be applied in these matters, and this standard is satis- fied when the tax system is free of sys- tematic and intentional departures from this principle.”
58 Ohio St.2d at 335, 390 N.E.2d at 800.

The use of sale prices in reappraising property was also challenged on uniformity of taxation grounds in

Merlino v. Tax As- sessors for Town of N. Providence, 114 R.I. 630, 337 A.2d 796 (1975). In that case, the assessed value of the plaintiffs’ house was increased from $12,300 to $18,900 when they purchased it in 1972. They ar- gued that this increase was unconstitution- al because there had not been a general revaluation of property in their community since 1960, and property which had not been sold since then had not been reas- sessed.

The court held that the plaintiffs could not make out a cause of action unless they could show that there had been “a system- atic, intentional undervaluation of other property in the locality.”

114 R.I. at 639, 337 A.2d at 802. This burden was not met merely by showing that other properties in the same area were not revalued in 1972. Instead, they had to show “that a substan- tial amount of property was taxed at a lower percentage of fair market value than their property.” Since they failed to meet this burden, the court denied relief.

The present case is somewhat analogous to those situations where an assessor makes a partial reappraisal of property which results in such property receiving a higher value than other property or there is disparate valuation between tax districts. Courts have rather uniformly rejected equal protection and uniformity of taxation arguments in such cases. In

Spooner v. Askew, 345 So.2d 1055 (Fla.1976), for in- stance, the court refused to accept an equal protection argument where taxpayers in one county claimed their property was val- ued higher than the property in other coun- ties.

In Re Hawaiian Land Co., 53 Hawaii 45, 487 P.2d 1070 (1971), appeal dismissed sub nom. , an assessor selected certain proper- ties to be valued annually while others were valuated every two or three years. The annually valuated taxpayer claimed this resulted in a higher assessment on its property and constituted a violation of equal protection and uniform taxation, but the court rejected this argument.⁶ The Idaho Supreme Court found no equal pro- tection or uniform taxation problem where

piecemeal reappraisals were made over a period of time with property being assessed at the new appraisal figure instead of wait- ing until all property had been reappraised.

Justus v. Bd. of Equalization, 101 Idaho 743, 620 P.2d 777 (1980). This same result was reached in .⁷ See also ; ; Annot., 76 A.L.R.2d 1077 (1961).⁸

Our constitutional requirement that tax- es shall be equal and uniform has been discussed in a number of cases, but a clear syllabus point has not evolved. This can be demonstrated by reviewing the syllabi of our major property tax cases, all of which were overruled in part in Syllabus Point 4 of

In Re Assessment of Kanawha Valley Bank, 144 W.Va. 346, 109 S.E.2d 649 (1959). See, e.g., ; ; ; , aff‘d, ; ; ; , writ of error dismissed, .

The lack of a clear syllabus point or statement of law summarizing what is meant by a violation of the equal and uni- form taxation provision of our Constitution may be accounted for by the peculiar facts which influence the value of a given piece of property and by certain changes in our tax statutes. Prior to 1955, the method for determining the value of property was set out in W.Va.Code, 11-3-1, which used the phrase “true and actual value.”

In pre-1955 cases where the taxpayer claimed that his property was assessed at a higher value than surrounding property, this Court would ordinarily refuse relief absent a clear showing of discrimination. “Such discrimination is not established where the showing is only that other prop- erty of a different type is assessed at less than its apparent or face value, through a process of estimation, and in a good faith effort to arrive at the true and actual value thereof.” Syllabus Point 3, in part,

In Re Tax Assessments Against Charleston Fed- eral Savings & Loan Ass‘n, supra. In a somewhat similar vein, we said in Syllabus Point 3 of , that:

“The valuation of land for purposes of taxation on the theory that such reduc- tion in value is necessary in order to comply with the constitutional require- ment of equality and uniformity will not be reduced in the absence of proof that there is a plan of valuation applied gener- ally to the same species of property situ- ate in the same taxing unit, and that such plan of valuation has not been ad- hered to in assessing the land upon which such reduction is sought.”

In 1955, through the adoption of W.Va. Code, 18-9A-15 (1955), the legislature spe- cifically recognized that assessors could as- sess property at less than true and actual value.⁹ Ever since then, Chapter 18 has contained a provision authorizing fractional assessments, although its location within the chapter and the minimum allowable percentage of true and actual value have varied from time to time.¹⁰ As a result of these provisions, county assessors began systematically setting assessed value at less than true and actual value. This made it simpler for a landowner to challenge his assessment by showing that his assessed value was above the assessed value for other property. Thus, in

In Re Tax Assess- ments Against Pocahontas Land Corp., 158 W.Va. 229, 210 S.E.2d 641 (1974), the property owner complained that all Class III property in the county was assessed at 66 percent of its appraised or true value, while its property was assessed at 86 per- cent of its appraised value.¹¹

Our most recent case dealing with the equal and uniform provision of our Consti- tution is

In Re Assessment of U.S. Steel, 165 W.Va. 373, 268 S.E.2d 128 (1980). There, the local assessor arbitrarily set the 1977 value of the company‘s property above the State Tax Commissioner‘s 1976 appraised value by 8 percent and used this as the company‘s assessed value. Thus, the company was assessed at 108 percent of its true and actual value. In addition, the assessor utilized the 1976 Tax Commis- sioner‘s appraised values for all other coal companies, but set their assessed values at 68 percent of the tax commissioner‘s ap- praised value. We held that there had been a violation of our equal and uniform constitutional provision and concluded in Syllabus Point 3:

“Where there is intentional discrimina- tion against a taxpayer by knowingly applying a different formula to the com- putation of its taxes from that generally used for all other taxpayers in similar circumstances, such discrimination can- not be excused as a sporadic deviation and the aggrieved taxpayer is entitled to have its taxes computed in the same manner and on the same basis as the favored taxpayers.”

In Re Assessment of Kanawha Val- ley Bank, this Court determined that the equal and uniform requirement was not limited to the same species of property, but would apply to all species of property.¹² Thus, a property owner could challenge his assessment on property not only by show- ing that the same species of property was being systematically assessed at a lower value, but also by showing that other types of property were being assessed at a lower value.¹³ This case marked a departure from our prior precedents by holding that our constitutional equal and uniform in- quiry was not limited to the same species of property involved in the tax protest.

Killen, we were confronted for the first time with the question of whether our constitutional mandate that “all property, both real and personal, shall be taxed in proportion to its value to be ascertained as directed by law,” W.Va. Const. art. X, § 1, prohibited assessments at less than true and actual value. We held that it did and, as a consequence, W.Va.Code, 18-9A-11, was held unconstitutional to the extent that it permitted fractional assessments.¹⁵

Following the

Killen decision, Section 1b of Article X of our Constitution was adopted to authorize the assessment of property at 60 percent of its value, subject to the right of the legislature to establish a higher percentage by a two-thirds vote.¹⁶ This constitutional amendment also provid- ed that for tax assessments beginning July 1, 1982, and until the first Statewide reap- praisal is completed, “assessments shall be made under the provisions of the current statutory law.”¹⁷

From this background several points emerge that are applicable to this case. First, property subject to our ad valorem tax is required to be appraised or valued at true and actual value. Second, assessed values, which are recognized un- der Section 1b of Article X are less than true and actual values. Third, the equal protection clause of the Fourteenth Amend- ment to the United States Constitution re- quires a taxpayer whose property is as- sessed at true and actual value to show more than the fact that other property is undervalued. He must demonstrate that the undervaluation was intentional and sys- tematic. E.g.,

Southern Ry. Co. v. Watts, supra; .

We recognize that our cases under the equal and uniform mandate of Section 1 of Article X of our Constitution have uti- lized a somewhat similar rule although we have not precisely articulated it in a partic- ular syllabus point. We, therefore, hold that the equal and uniform clause of Sec- tion 1 of Article X of the West Virginia Constitution requires a taxpayer whose property is assessed at true and actual value to show more than the fact that other property is valued at less than true and actual value. To obtain relief, he must prove that the undervaluation was inten- tional and systematic.¹⁸

We further hold that the price paid for property in an arm‘s length trans- action, while not conclusive, is relevant evi- dence of its true and actual value. Such evidence may not be rejected in favor of a Tax Commissioner‘s old appraisal of the property. Consequently, we conclude that the trial court erred as a matter of law in concluding that the only proper measure of value was the 1965 property tax appraisal of the State Tax Commissioner.

Because this case was decided on an er- roneous legal theory, we reverse the judg- ment of the circuit court and remand it for further consideration. We do not foreclose the parties from introducing relevant evi- dence regarding true and actual value, or the constitutional issue of equal and uni- form taxation under the standards enunci- ated herein.

On remand, the circuit court should also consider the appellants’ claim that 7,670 acres of land owned by Westvaco have never been placed on the tax books. Under W.Va.Code, 11-3-24, a county commission sitting as a Board of Review is required “to examine and review the property books, and ... add on the books ... the descrip- tion and value of real estate liable to as- sessment which was omitted by the asses- sor.” Such omitted property is subject to back taxes. W.Va.Code, 11-3-5. Al- though the appellants brought the alleged omission to the attention of the Board of Review, that body appears to have taken no action to correct it.

A final contention involves the rul- ing of the trial court that the 1982 Property Tax Limitation and Homestead Amendment foreclosed consideration of the valuation issue. We do not agree. First of all, this amendment which was ratified on Novem- ber 2, 1982, speaks in terms of assessments “for the first day of July one thousand nine hundred eighty-two.”¹⁹ This would not af- fect Westvaco‘s July 1, 1981 assessment, which is at issue here. Furthermore, this provision recognizes that “until the values may be fixed as a result of the first state-

wide reappraisal hereinafter required, as- sessments shall be made under the provi- sions of current statutory law, which is hereby validated for such purpose until and unless amended by the legislature.” W.Va. Const. art. X, § 1b.²⁰ This provision clearly permits consideration of the issues in this case and the circuit court erred in holding otherwise.

For the foregoing reasons, the judgment of the Circuit Court of Randolph County is reversed and remanded.

Reversed and Remanded.

NEELY, Chief Justice, dissenting:

In this case the county assessor, the board of equalization and review, and the Circuit Court of Randolph County acted in accordance with our tax law as it was then written by a majority of this Court. The county assessor valued the Westvaco Cor- poration‘s timberland, not on its purchase price, but rather on the 1965 appraisal of the property by the State Tax Commission- er. This was upheld by the board of equal- ization and review. The circuit court, studying this Court‘s judgments and read- ing the West Virginia statutes, quietly and confidently affirmed the board.

Let us consider this Court‘s own lan- guage in

Tug Valley Recovery Center, Inc. v. Mingo County Commission, 164 W.Va. 94, 261 S.E.2d 165 (1979). In that case, we considered “the problems inherent in set- ting the proper amount of tax to be paid on any given parcel of land.” . Noting that such problems are peculiarly technical and com- plex, we discovered, to our relief, that our task is alleviated by W.Va.Code 18-9A- 11(a) [1981]. In , we indicated that, initially, the Tax Commissioner “is to make an ap- praisal of all mineral and surface estates in West Virginia, and that appraisal is to serve as the basis for determining true and actual value for all assessment pur- poses.” [Emphasis in the original]. We contin- ued:

Therefore, once the Tax Commission- er‘s appraisal has been made, the duty of the circuit court is clear and the taking of further evidence would not be neces- sary. 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.
Tug Valley Recovery Center, Inc., 164 W.Va. at 108, 261 S.E.2d at 173.

Today, however, the majority instructs us that

Tug Valley Recovery Center, Inc., supra, signifies only that the local assessor may not ignore the Tax Commissioner‘s appraisal and that “an assessor cannot es- tablish a value for real property that is below the State Tax Commissioner‘s ap- praisal” [emphasis added]. The majority now informs us that the price paid for property “is relevant evidence of its true and actual value ...” and “may not be rejected in favor of an old Tax Commission- er‘s appraisal.” [Query: How old must the Tax Commissioner or his appraisal be?] Apparently an assessor may now appraise real property at a value above that deter- mined by the State Tax Commissioner, per- haps even when that same property has declined in value over the years.

Previously, this Court has held that a taxpayer‘s objection to any assessment can be sustained only by the presentation of competent evidence by experts such as qualified appraisers. “The objecting party, whether it be the taxpayer, the tax commis- sioner or another third party, must show by a preponderance of the evidence that the assessment is incorrect.”

Syl.Pt., Kil- len v. Logan County Commission, 170 W.Va. 602, 295 S.E.2d 689 (1982). But in the case before us the majority turns a blind eye to its own directive. No neutral, independent appraiser offered any testimo- ny at all to show that the assessment was “incorrect.”

Syllabus point one gives another fine twist to the majority‘s veneration for prece- dent. W.Va. Const. art. X, § 1 states that taxation generally “shall be equal and uni- form throughout the State ...” In Sylla- bus Point 1 of

In Re: The Assessment of Shares of Stock of the Kanawha Valley Bank, 144 W.Va. 346, 109 S.E.2d 649 (1959), this Court found the constitutional provision to be clear and unambiguous and to prohibit “the taxing of any one species of property higher than any other species of equal value.” In subsequent cases, this Court held that unintentional, sporadic de- viations were insufficient to reverse an as- sessment, and, recently, that inten- tional discrimination against a taxpayer could never excuse a willfully contrived deviation, Syllabus Point 3 .

The majority now insists that an aggriev- ed taxpayer, who finds his neighbors taxed less heavily than himself, is afforded no protection by the equal and uniform provi- sion of W. Va. Const. art. X, § 1, unless he can satisfy the Court that the “undervalua- tion” of his neighbors “was intentional and systematic.” The Court demanding such subjective omniscience, surgically eviscer- ates the equal and uniform requirement of our Constitution. Our equal and uniform provision governing taxes is sub-species of the equal protection clause. It guarantees that “insular minorities” like the business taxpayer in the case before us will not be taxed at a high rate because of limited political influence while all those with polit- ical clout pay little. Where taxes are equal and uniform everyone has an interest in efficiency and economy in government. One‘s compelling interest in such desirable social goals pales, however, whenever someone else is paying the bill.

More to the point in this case, however, is the fact that the record clearly reflects that all property in Randolph County is more or less appraised in accord with the tax commissioner‘s 1965 evaluation. If this property is evaluated by a different means—if the Court in this one specific case rejects application of an equal and uniform standard—then we will have re- versed the role that this Court traditionally plays in tax cases. Although in all previ- ous decades of our history this Court has been a guarantor of equality and uniform- ity, we are now, by this case, the propo- nents of deviation from equality and uni- formity.

Although I am apparently eccentric in this regard, I believe that there is still some value in consistency and continuity. These are goals that are well served by cherishing the doctrine of stare decisis. In my dissent in

Killen v. Logan County Commission, 170 W.Va. 602, 295 S.E.2d 689, 710-16 (1982), I argued that stare de- cisis not only protects reliance interests “but also that the doctrine helps provide a stable environment in which the institu- tions which apply laws can grow and change gradually.” .

If the Court deems it necessary to dis- regard precedent, let it boldly overrule a prior decision and not, with passionate in- tensity, manoeuvre interstitially among the lines of cases written only yesterday. In conclusion, I am reminded of Lord Holt‘s protest, in 1704: “... these scrambling re- ports ... will make us appear to posterity for a parcel of blockheads.”

Slayter v. May, 2 Ld.Raym. 1072 [1704].

Notes

We recognized the right of taxpayers to chal- lenge other taxpayers’ property assessments in . See also .

The term “deed values” refers to the declara- tion of consideration required under W.Va. Code, 11-22-6, in order to present a deed for recordation in the office of the clerk of a county commission.

The following conclusions of law appear in the lower court‘s order:

“2. The Assessor and County Commission- er are required to determine the value of any property in accordance with the evaluation determined by the appraisal of such property by the State Tax Commissioner. *** “4. The Assessor, the County Commission- er and even the Circuit Court must abide by the appraisal of the State Tax Commissioner in arriving at the assessed value of property. *** “9. The valuation placed upon the property by the Randolph County Assessor and upheld by the Randolph County Commissioner is, in the opinion of this Court, the proper valuation until it is changed by the State Tax Commis- sioner or until another method of valuation is prescribed by the legislature.”

W.Va.Code, 11-3-1, provides, in pertinent part:

“All property shall be assessed annually as of the first day of July at its true and actual value; that is to say, at the price for which such property would sell if voluntarily offered for sale by the owner thereof, upon such terms as such property, the value of which is sought to be ascertained, is usually sold, and not the price which might be realized if such property were sold at a forced sale.”

This section states in pertinent part: “Subject to the exceptions in this section contained, taxa- tion 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.”

The court in cited , where the United States Supreme Court, in sus- taining an Ohio property tax, stated: “Similarly, it has long been settled that a classification, though discriminatory, is not arbitrary nor vio- lative of the Equal Protection Clause of the Fourteenth Amendment if any state of facts reasonably can be conceived that would sustain it.” (Citations omitted). More recently in , the Court stated: “Where taxation is concerned and no specific federal right, apart from equal protection, is imperiled, the States have large leeway in making classifi- cations and drawing lines which in their judg- ment produce reasonable systems of taxation.” (Footnote omitted).

The court in made this statement: “Almost uniformly, the courts have upheld cyclical reappraisal programs against equal protection attacks. See, e.g., ; ; ; .” .

Although no argument is made in this case with regard to federal equal protection, we be- lieve that under , federal equal protection principles are not vio- lated by using deed values to establish fair mar- ket value over an old appraisal value of the Tax Commissioner.

W.Va.Code, 18-9A-15, set minimum ratios of assessed to appraised value which increased from 35 percent for 1956 to 50 percent for 1959 and all succeeding years.

We do not doubt that prior to 1955 county assessors were assessing at less than true and actual value. Justice Fox, writing for a unani- mous court in , speaking of that practice, said:

“An assessor violates the law, and a portion of the taxpayers receive an advantage from such violation. When this occurs, other taxpayers naturally feel that they should be accorded the same treatment.... Is it not time to find some remedy for this situation, other than one involving an appeal to the courts to en- force a system of assessments for tax pur- poses which is plainly in violation of the law as written? It would be refreshing, indeed, if some taxpayer, or a group of taxpayers, would sponsor an effort to see that our tax laws are obeyed, rather than to take advantage of their open violation. It is not for this Court to point out ways by which regard for law may be required of public officials, but they exist. It is probably too much to expect that they will ever be used.”

See, e.g., W.Va.Code, 18-9A-3 (1958); W.Va. Code, 18-9A-3 (1960); W.Va.Code, 18-9A-4 (1961); W.Va.Code, 18-9A-11 (1971); W.Va. Code, 18-9A-11f (1981).

We held in Syllabus Point 3 of :

“A systematic plan of assessing property whereby some property owners’ assessments were increased 20% and other property own- ers in the same class were intentionally omit- ted from such increase is in violation of the equal and uniform taxation provision of Arti- cle X, Section 1 of the Constitution of West Virginia.”

Syllabus Point 1 of states: “Section 1, Article X, of the Constitution of this State is clear and unambiguous and prohibits the taxing of any one species of property higher than any other species of equal value.”

14. Syllabus Point 2 of

In Re Assessment of Ka- nawha Valley Bank states: “The systematic as- sessment of money and shares of bank stock at a higher percentage of its true and actual value than that at which other species of property are assessed violates Section 1, Article X, of the Constitution of this State and is illegal.” Fur- ther, Syllabus Point 6 states: “Where there is a systematic plan to assess all property of a certain species at a particular per centum of its value, substantially less than actual value, a showing that there were spo- radic variations to the plan of assessment will not deprive the owner of property of another species of his right to relief, under the provi- sions of Section 1, Article X, of the Constitu- tion of this State, where the property of the latter was assessed at a substantially higher per centum of actual value than the approxi- mate level of valuation of the other species of property of equal value.”

Syllabus Point 6 of states: “The per- centage ratio scheme found in W.Va.Code § 18-9A-11 results in fractional assessment in violation of the West Virginia Constitution.”

The relevant portion of Section 1b of Article X of the West Virginia Constitution is:

“Notwithstanding any other provisions of this Constitution and except as otherwise pro- vided in this section, all property subject to ad valorem taxation shall be assessed at sixty percent of its value, as directed to be ascer- tained in this section, except that the legisla- ture may from time to time, by general law agreed to by two thirds of the members elect- ed to each house, establish a higher percent- age for the purposes of this paragraph, which percentage shall be uniform as to all classes of property defined in section one of this article, but not more than one hundred per- cent of such value.”

The complete text of this portion of Section 1b of Article X is:

“Notwithstanding the foregoing, for the first day of July, one thousand nine hundred eighty-two, and the first day of July of each year thereafter until the values may be fixed as a result of the first statewide reappraisal hereinafter required, assessments shall be made under the provisions of current statu- tory law, which is hereby validated for such purpose until and unless amended by the leg- islature. Assessment and taxation in accord with this section shall be deemed to be equal and uniform for all purposes.”

This rule has generally been adopted in other jurisdictions which have an equal and uniform provision. See, e.g., (“There must be a systematic and intentional discrimination be- fore the state constitution is violated.“), cert. denied, ; (“systematic and intentional” discrimination is required); (“there must be a clear and affirmative showing that the difference is an intentional discrimination and one adopted as a practice“), cert. denied, ; (discrimination does not violate the state consti- tution unless it is “intentional, systematic, delib- erate, persistent, habitual, fraudulent, and/or designed to violate fundamental constitutional principles, mere error in judgment or mistake being insufficient“); (“deliberate, purposeful discrim- ination” is required; taxpayer must show “sys- tematic, deliberate method of enforcement of the tax laws, and not mere errors or over- sights“). Other courts utilize comparable lan- guage. See, e.g., (intentional or systematic discrimination is re- quired to violate the uniformity clause of Alas- ka‘s Organic Act); (the uniform ad valorem taxation clause is violated when one class of property is systematically assessed at a higher rate of taxation); (“arbitrary and systematic” discrimination is required); (must be “some well-defined and established scheme of discrim- ination, or some fraudulent action“).

See note 17, supra.

See note 17, supra, for full text. We wish to emphasize that this case has nothing to do with legislative enactments passed in 1983, relating to the reappraisal of property. W.Va.Code, 11- 1A-1, et seq. (1983). Under W.Va.Code, 11-1A-2 and -8 (1983), the base year for the first state- wide appraisal is 1983.