Killen v. Logan County Commission , 170 W. Va. 602 ( 1982 )

MILLER, Chief Justice,

concurring:

While I concur with the majority opinion, it seems to me that some clarification might be added to it, particularly in light of the dissenting opinion.

First, it cannot be doubted, and the parties to this litigation do not assert otherwise, that we are confronted with two statutes that contain irreconcilable language. The first is W.Va.Code, 11-3-1, which provides in material 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, ...”

The second statute is W.Va.Code, 18-9A-11, which, in relevant part, states:

“The tax commissioner shall make or cause to be made an appraisal in the several counties of the State of all non-utility real property and of all non-utility personal property which shall be based upon true and actual value as set forth in article three [§ 11-3-1 et seq.], chapter eleven of this Code.

* * * * * *

“[A]fter such appraisal is so delivered and received, the county assessor and the county court, sitting as a board of equalization and review, shall use such appraised valuations as a basis for determining the true and actual value for assessment purposes of the several classes of property. The total assessed valuation in each of the four classes of property shall not be less than fifty percent nor more than one hundred percent of the appraised valuation of each said class of property.”

The clear import of W.Va.Code, 18-9A-11, is that while the tax commissioner shall make appraisals of real and personal property “based upon true and actual value,” the local assessors are empowered to set the local assessments between fifty and one hundred percent of the true and actual value appraisements made by the State tax commissioner. However, the fifty to one hundred percent assessment setting authorized by W.Va.Code, 18-9A-11, obviously conflicts with the plain requirement of W.Va.Code, 11-3-1, which requires assessors to assess “at its true and actual value.” An assessor who is required by W.Va.Code, 11-3-1, to assess at “true and actual value” can hardly square this duty with W.Va.Code, 18-9A-11, which enables him to assess at fifty percent of the true and actual value.

The majority resolves this conflict between these two statutes by looking to the provisions of Section 1 of Article X of the West Virginia Constitution to determine the meaning of the phrase “all property both real and personal shall be taxed in proportion to its value.” There can be no doubt that under our real and personal property tax statutes, as is common elsewhere, the assessor’s value or what is commonly called the “assessed value” of property is what is entered on the property books. It is against this value that the applicable tax or levy rate is calculated. These tax rates are set out in W.Va.Code, 11-8-1, et seq., which allocates them to the various local governmental entities.

The dissent proceeds on a misconception that our constitutional phrase which reads “and all property ... shall be taxed in proportion to its value” should be read to mean that “all property ... shall be assessed in proportion to its value.” (Emphasis added) Obviously, there is a total difference in meaning between the word “taxed” and the word “assessed.” As previously indicated, “taxed” refers to the amount of the levy rate and this is expressed throughout W.Va.Code, 11-8-1, et seq., as so many cents “on each one hundred dollars” of assessed value. W.Va. Code, 11-8-6.¹ Thus, the dissent, by substituting the word “assessed” for the word “taxed” in Section 1 of Article X, avoids discussing the real issue in the case — which is the meaning of the word “value.”

As the majority opinion demonstrates, our constitutional phrase “taxed in proportion to its value” is found in other state constitutions. Courts that have had occasion to construe this phrase have rather uniformly determined that the term “value,” standing alone, is deemed to mean fair market value or actual value or some other equivalency.

A case cited by the majority and one that is closely analogous to our present situation is Arkansas Public Service Commission v. Pulaski County Board of Equalization, 266 Ark. 64, 582 S.W.2d 942 (1979). Section 5 of Article 16 of the Arkansas Constitution contains a provision quite similar to ours that “[a]ll property subject to taxation shall be taxed according to its value.” The Arkansas Legislature had, in 1973, passed a statute which had this effect “under Act 411, residential values were ‘frozen’ as of 1956, and timber and farm land values were ‘frozen’ as of 1961.” 266 Ark. at 722, 582 S.W.2d at 944. The Arkansas Supreme Court concluded that the constitutional term “value” meant in effect present or true value and that the statute was unconstitutional:

“But the larger question relates to the meaning of the word ‘value,’ Article 16, § 5, requiring that ‘[a]ll property subject to taxation shall be taxed according to its value.’ An illustration which is perhaps overly simple serves to drive home the meaning of the word ‘value.’ If an individual displays an article, be it an article of jewelry, an automobile, or even if a house is being sold, and is asked the question, ‘What is its value?’, the answer, of course, is the value of that property today — not what it was worth in 1956 or 1961 — or any other year. The constitutional requirement, it would appear, undoubtedly means ‘present value,’ because its value in some other year would almost certainly not be the same as the current value, and accordingly, if some other basis is used, would not be its true value at all.” 266 Ark. at 72-73, 582 S.W.2d at 945.

In reaching this conclusion, the court noted that the Legislature had since its earliest days after the formation of the State utilized in its assessment statutes language that gave recognition to the fact that the constitutional term “value” meant fair market value. A similar pattern can be found in our own assessment statutes. In Section 67 of Chapter 157 of the 1863 West Virginia Code, the affidavit of value submitted by the owner of property contained the following affirmation: “[T]hat in my opinion the valuations of the property listed are not below the fair cash value thereof: So help me God.”

In 1904, the assessment language was changed to that which is presently found in W.Va.Code, 11-3-1, requiring property assessments to be at true and actual value.² This longstanding legislative concurrence as to the meaning of the constitutional term “value” is significant.³ Moreover, and despite general contrary assertions by the dissent, none of our previous decisions in regard to Section 1 of Article X have ever held that the Constitution sanctioned assessments at less than the true and actual value.⁴

Finally, I must take exception to the dissent’s characterization of this case as a “political question” and that somehow we should have avoided deciding this case. The dissent overlooks the fact that the case had already been decided by the Circuit Court of Logan County. We occupy the position of being the final arbiter of our State’s law. We would do no credit to our office and our oath if we avoid complex or controversial cases by refusing to decide them under the guise of calling them “political issues.” To make such an assertion is to ignore all of the tax cases that have been decided by this Court in the past.

Surely, the test of whether a given opinion is correct cannot be based on whether it will gain popular acceptance by all who will feel its impact. If this were the yardstick, no court would hold any tax measure proper. Reference need only be made to Bee v. Huntington, 114 W.Va. 40, 171 S.E. 539 (1933), to find the true measure for a court. There, this Court was confronted with the then recent amendment to Section 1 of Article X of our Constitution, which had set the maximum tax or levy rates that could be charged against the various classes of real and personal property. The practical effect of this amendment was to seriously curtail the amount of property tax revenues that had been formerly available to local governmental bodies.

The Legislature, in response to the outcry for more funds by the local governmental units, had enacted a statute to permit the local levying bodies to exceed the constitutional maximum levy rates by utilizing “additional levies ‘to meet current requirements of now-existing indebtedness.’ ” 114 W.Va. at 43, 171 S.E. at 451. This Court held the statute to be unconstitutional. Justice Kenna in his concurring opinion acknowledged the difficult choice that faced the Court in these words:

“I concur in the majority opinion. In doing so, I have a full appreciation of the very serious nature of the difficulty involved and of the far-reaching consequences with which the question is fraught. On the one hand, it is urged that we are faced by the probability of a breakdown of local government in a large number of the taxing units throughout the state through lack of money realized from taxation to provide for their essential functions, and, on the other, that the sovereign will of the people, expressed by them in the very instrument to which these taxing units owe their existence, will be thwarted in a matter of vital importance.” 114 W.Va. at 50, 171 S.E. at 544.

I am sure Justice Kenna and the other members of that Court would have been comforted to learn from today’s dissent that they could have avoided the entire issue as a “political question.”

1 . The entire purpose of W.Va.Code, 11-8-1, et seq., is to divide the maximum tax or levy rates (the terms are interchangeable) set in Section 1 of Article X of our Constitution among the various governmental entities who are entitled to share in property tax revenues. The constitutional maximum rates are recognized in W.Va. Code, 11-8-6, which provides:

“The aggregate of taxes assessed in any one year by all levying bodies, except as provided by section twenty-three [§ 11-8-23] of this article, shall not exceed fifty cents on each one hundred dollars’ assessed valuation on Class I property; one dollar on Class II property; one dollar fifty cents on Class III property; and two dollars on Class IV property."

2 . Section 12 of Chapter 4 of the 1904 Acts of the Legislature, in material part, provided:

“All property, both real and personal, in any county, except as herein otherwise expressly provided, shall be assessed as of the first day of April [currently July] of each year 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.”

3 . We have in the past utilized statutory provisions as they may bear upon our constitutional language as a guide in interpreting such constitutional language. E.g., Hendershot v. Hendershot, 164 W.Va. 190, 263 S.E.2d 90, 94-95 (1980).

4 . For a general resume of our cases prior to 1960, see Note, Equality and Uniformity in Property Taxes, 662 W.Va.L.Rev. 70 (1959).