Berry v. Fox

The legislature on the 9th of December, 1933, passed an Act known as Committee Substitute for House Bill No. 64, effective from passage, which purported to appropriate from the general revenues of the state from taxes imposed by the legislature on privileges, franchises and incomes of persons and corporations for the fiscal years ending June 30, 1934, and June 30, 1935, respectively, such moneys as may be required to meet all interest and sinking fund charges due and to become due during the said years upon bonded indebtedness of all counties, magisterial, school and other taxing districts except municipalities, incurred prior to November 8, 1932, for roads now used as a part of the state road system, and incurred for schools now used as a part of the state free school system.

The plaintiff, A. M. Berry, a resident and taxpayer of Salt Lick District, Braxton County, challenges the constitutionality of the said enactment, and seeks to void the acts of the sinking fund commission and its secretary in drawing requisitions on the state auditor for warrants with which to discharge bonds, and interest thereon, issued by two taxing units in Fayette County, as well as the act of the auditor in issuing the warrants, and to enjoin the state treasurer from honoring and paying them.

The bill of complaint embodies the provisions of the Act and alleges that certain bonds issued by Falls District, Fayette County, prior to November 8, 1932, for schools, and certain bonds issued by Sewell Mountain District prior to November 8, 1932, for roads, and interest thereon, are due or about to become due; that there are moneys in the General Revenue Fund of the state treasury which, under the provisions of the aforesaid act, are subject to requisition of the state sinking fund commission and which arise from taxes imposed by the legislature on privileges, franchises, and incomes of persons or corporations as authorized by Article X, section 1, of the state Constitution, as amended, sufficient to pay said bonds and interest charges thereon; that the secretary of the state sinking fund commission, pursuant to that commission's direction, has drawn requisitions upon the state auditor for funds to pay the bonds and interest charges; that the state auditor has issued warrants therefor payable to the said commission; that the state treasurer has expressed his intention to honor the warrants and pay them out of the treasury; that the plaintiff will have to pay to the state a substantial sum of money as taxes imposed by the legislature on privileges, franchises, and incomes; that Salt Lick District has issued no bonds for roads or schools; that neither his property in Salt Lick District nor the taxes to be paid by him hereafter on privileges, franchises, or incomes are legally liable for or properly applicable to the payment of said bonds and interest charges; that plaintiff had no voice in the issuance of said bonds and owns no property in either of the districts which issued the bonds; that the Act is violative of sections 4, 5 and 6, of Article X, and section 10 of Article III, Constitution of West Virginia, and section 1 of the Fourteenth Amendment of the Constitution of the United States; and that the acts of the sinking fund commission and its secretary and of the auditor, as well as the contemplated action of the treasurer, are without legal authority and to plaintiff's irreparable injury and damage.

The circuit court of Kanawha County sustained the defendants' demurrer and dismissed the bill. The plaintiff has appealed.

Section 6, Article X of the Constitution of West Virginia reads:

"The credit of the State shall not be granted to or in aid of any county, city, township, corporation or person; nor shall the State ever assume, or become responsible for the debts or liabilities of any county, city, township, corporation or person; nor shall the State ever hereafter become a joint owner, or stockholder in any company or association in this State, or elsewhere, formed for any purpose whatever."

In justification of the suggestion that the state may undertake the payment of sinking fund and interest charges upon county and magisterial district road bonds without violating said constitutional provision against the assumption of debt by the state, reference has been made to certain observations in the opinion in the case of State Road Commission v. CountyCourt of Kanawha County, 112 W. Va. 98, at page 106,163 S.E. 815, 818, wherein, in reference to said section 6, it is said:

"In the debates at the Wheeling Convention which formulated this provision, the discussion related solely to state aid or credit to corporations for local and sectional improvements. See manuscript report of the convention, for the period February 1st to February 4th, inclusive, 1862, Department of Archives and History. See also sketch 'Formation of West Virginia,' 1 W. Va. Law Reports 72. The language as well as the history of the section demonstrate that it has reference to state aid and state payments in matters of territorial interest to the county, and not to a situation like this where the advancement made the county by the state is essentially in the interests of the entire state."

In that case we had under consideration section 31, chapter 6, Acts 1923, which authorizes the state road commission to acquire lands "for the purpose of constructing, widening, straightening, grading or altering any state road", and requires the county court of the county wherein such road is situated to pay for the lands so acquired. The definite question for decision was whether the state road commission could recover from the county court of Kanawha County the amounts which had been paid by the commission for lands in Kanawha County acquired by the commission for state road purposes. The case did not directly involve the question of the granting of the state's credit to a county. So that what was said in the opinion arguendo in the portion to which reference has been made, we do not deem conclusive of the questions now precisely before us.

The immediate precursor of said section 6, Article X of our present Constitution, was section 6, Article VIII of the Constitution of 1863. That section read:

"The credit of the State shall not be granted to, or in aid of, any county, city, town, township, corporation, or person; nor shall the State ever assume or become responsible for the debts or liabilities of any county, city, town, township, corporation, or person, unless incurred in time of war or insurrection for the benefit of the State."

It will be noted that down to and including the words "corporation, or person", where they appear the second time, the two sections are identical except that the word "town" which appears in the old section was not carried into the new one.

The convention which wrote our first Constitution, known as the Constitution of 1863, convened at Wheeling on the 26th of November, 1861, and its first session continued until February 12, 1862. On January 31, 1862, the committee on taxation and finance made its report to the convention presenting several sections which, in the form finally adopted, became Article VIII of the Constitution. It is pertinent here to make reference to sections 5 and 6 of that report. Those sections, as reported, read:

"5. No debt shall be contracted by this State except to meet casual deficits in the revenue — to redeem a previous liability of the State — to suppress insurrection, repel invasion or defend the State in time of war.

"6. The credit of the State shall not be granted to, or in aid of, any county, city, town, township, corporation or person whatever; nor shall the State ever assume or become responsible for the debts or liabilities of any county, city, town, township, corporation or person, unless incurred in time of war or insurrection for the benefit of the State."

Certain proposed amendments of these sections occasioned extended debates. The attempted amendments pertained to internal improvements. A strong element of the convention favored the framing of these sections so as to permit the state to underwrite works of internal improvement undertaken by private corporations. The motion of the delegate from Doddridge County to amend section 6 by striking therefrom the words "corporation, or person" was lost by one vote after an extended discussion.

The debates on these two sections occupied most of the time of the convention from February 1st to 4th. The sole controversial question was whether the state should be prohibited from extending its credit to private enterprise engaged in internal improvements. No delegate seems to have questioned — for apparently it was taken for granted by everyone — that the credit of the state should not in any event be extended to counties, cities, towns, townships or persons, or their debts assumed, as prohibited by section 6. The only debated subject was corporations. That section as reported to the convention and as carried into the Constitution embraced alike all of the agencies and persons named, including corporations. The ban applied in the same degree to all. It does not follow from the fact that only internal improvement corporations figured in the debates that they constituted the only subject or agency sought to be affected by the fixed limitations which the said sections impose. All named subjects were aimed at specifically and unequivocally. There were differences of opinion among convention delegates as to corporations, but the minutes of the convention do not disclose any such difference as to the other subjects. The said sections five and six were finally adopted in the exact form in which they had been reported to the convention by the Committee on Taxation and Finance. The observations herein made with reference to the said constitutional convention are based on the manuscript report thereof to be found in the state department of Archives and History.

In the Historical Sketch of the Formation of the State of West Virginia appearing in Volume One of the State Reports, it is stated at page 72 that under the state Constitution (1863), "Taxation was made equal and uniform for the first time in the history of this people. A check was placed upon the system of granting the credit of the state to corporations, which had enthralled Virginia in a debt of millions." The check referred to is that of section 6, Article VIII. The same section also placed a prohibition upon the state's assuming the debts of its governmental subdivisions. The writer of the sketch saw fit to mention the former and not the latter, but this should in no degree becloud the facts as to what was actually done, nor cast doubt upon the plain meaning of the words employed.

Unless plain and simple words have lost their meaning, section 6 of Article X of our present Constitution prohibits the legislature from granting the credit of the state or assuming debts and liabilities such as are in said section indicated, whether such assumption be done directly and unequivocally or by indirection.

Neither is it perceived that this situation is in any wise affected by the Good Roads Amendments of 1920 and 1928, respectively. The underlying purpose of those two amendments was the authorization of the issuance of state bonds to finance an extended program of state highway construction. They authorized the legislature to provide a state revenue to build, construct and maintain, or assist in constructing and maintaining a system of state roads. The manner in which such revenue may be provided is not circumscribed by the amendment; the authorization of state bonds is not exclusive of other methods, as, for example, the gasoline tax which has been used extensively in producing revenue to retire state bonds. But the revenue contemplated is to be applied only to the uses specified in the said amendments. Whether within the meaning of the word "assist", as used in the amendment, the state might have borne part of the expense of constructing county-district roads, need not be here considered. But even if such could have been done, that would have been a very different matter from undertaking to assume the payment of local bonds for purely local undertakings. This would require the state to assume the burden of indebtedness in the incurring whereof it had no voice. These amendments do not modify nor impair the provisions of section 6, Article X of the Constitution, because they do not undertake to grant the credit of the state to or in aid of any county, city, township, corporation or person, nor do they authorize the assumption by the state of any debt not contracted by it.

In the case of Bates v. State Bridge Commission, 109 W. Va. 186,153 S.E. 305, we had under consideration the constitutionality of chapter 8, Acts 1929, which created the state bridge commission and defined its powers and duties. The Act contemplated the construction or purchase of bridges and the paying therefor solely from tolls derived from the bridges. It was charged that the act violated the letter and spirit of section 4, Article X of the Constitution which provides that "no debt shall be contracted by this state, except to meet casual deficits in the revenue, to redeem a previous liability * * *, to suppress insurrection, repel invasion or defend the State in time of war." We did not sustain that contention because we were of opinion, supported by general authority, that bonds of the state payable solely out of revenue derived from the bridge tolls did not create debt within the constitutional inhibition against the contraction of public debt, but partook more of the nature of purchase money mortgages. Such bonds do not pledge the credit of the state. It does not seem, therefore, that that case is at all comparable with the case at bar or that the former affords a precedent for the present one.

In construing the tax limitation amendment (section 1, Article X, State Constitution), adopted by the people at the General Election of November 8, 1932, other provisions of the Constitution cannot be ignored. "A clause in a constitutional amendment will prevail over a provision of the original instrument inconsistent with the amendment, for an amendment to the constitution becomes a part of the fundamental law, and its operation and effect cannot be limited or controlled by previous constitutions or laws that may be in conflict with it. But repeal of constitutional provisions by implication is not favored, and an amendment should not be construed as affecting any greater innovation on the existing constitution than is reasonably necessary to accomplish the object of its enactment." 12 Corpus Juris, page 709. We said inFinlayson v. City of Shinnston, 113 W. Va. 434, 168 S.E. 479, speaking of said amendment: "Other provisions of the state constitution must be construed in the light of the amendment." But that statement is not to be taken to mean that constitutional light is to be derived only from the amendment. A constitutional amendment, as the last word from the people on a subject under consideration, should be given controlling effect where there is irreconcilable conflict between it and other constitutional provisions, but no such effect should be given where it and other provisions of the Constitution may be read together and harmonized without destroying the effect and purpose of any of them. This proposition of constitutional law is concisely dealt with in Cooley's Constitutional Limitations (8th Ed.), Vol. 1, page 129, as follows:

"Upon the adoption of an amendment to a constitution, the amendment becomes a part thereof; as much so as if it had been originally incorporated in the constitution; and it is to be construed accordingly. If possible, it must be harmonized with all the other provisions of the constitution. If this cannot be done, the amendment will prevail."

A constitutional inhibition as positive as language can make it (Article X, section 6), should not be deemed destroyed by forced implication arising from an amendment of another section of the organic law.

In support of the legislative enactment challenged in this proceeding much emphasis is laid upon that portion of the recent constitutional amendment (section 1, Article X, West Virginia Constitution amended by vote of the people November 8, 1932) which provides that such revenues as may be derived from an income tax authorized by said amendment "may be appropriated as the legislature may provide." The position is taken that this is a carte blanche authorization of the legislature to use such revenue for public purposes as it may desire, and that therefore it may apply any part thereof to the payment of local school and road bonds. We cannot accept that view. The application of such revenue by the legislature must be in conformity with other constitutional requirements not at variance with the said amendment. The several provisions of a constitution must be considered together, and an older provision will be destroyed by a later one only where there is irreconcilable conflict. We are not satisfied that such conflict appears here. A situation of difficulty and complexity does not justify discarding plain constitutional inhibitions.

It is true that legislative interpretation of a constitutional provision, particularly when made almost contemporaneously with the adoption of the provision, is entitled to great deference (Road Commission v. County Court,112 W. Va. 98, 163 S.E. 815), but the recent case of Bee v.City of Huntington, 114 W. Va. 40, 171 S.E. 539, is conclusive authority for the proposition that such interpretation cannot be deemed final.

The conclusion, therefore, seems inevitable that section 6, Article X of the Constitution of West Virginia, stands against the validity of the act in question. It is an obvious and unequivocal meaning of that provision of our organic law that the burden of bonded indebtedness shall be borne by the governmental unit which contracted it. It would be no more unfair to require a man's neighbors to help pay his debts than to require numerous communities to help pay the debts of a particular one.

As basis of justification of the contention that there has been repeal of section 6 of Article X by implication, reference is made to the legislative declaration in section 1 of an Act passed contemporaneously with the one under consideration, designated as Committee Substitute for House Bill No. 63, wherein it is asserted, in effect, that the paying by the State of service charges on local school and road bonds is the only method available for the solution of the difficult tax situation now confronting the people of the State. While legislative declarations are, of course, entitled to the highest and most serious consideration, they are not conclusive.

In the case of Lemon v. Rumsey, 108 W. Va. 242, 150 S.E. 725, we held: "A legislative declaration of fact, if not arbitrary, is final." As illustrative of the sort of basis of fact which will justify the application of that principal, it is noted that in that case there was involved a legislative act which had for its purpose the control and eradication of a plant disease commonly known as "apple rust" and which act declared any red cedar tree growing within a radius of three miles of any apple orchard to be a public nuisance. And, it must be further noted that, whereas in the Lemon case there was a legislative declaration of fact, there is presented here a legislative declaration of a matter primarily of a juristical nature. The ascertainment of a fact, as the basis of an enactment by the legislature, ordinarily will not thereafter be open for judicial determination. Woodall v. Darst, 71 W. Va. 350,77 S.E. 264. But we are not familiar with any principle of law which gives like weight and dignity to a legislative declaration in respect of an existing condition as of fact but actually juristical. Indeed, differentiation is to be made between the different kinds of facts which a legislature may declare as basis of an enactment. The following case illustrates this point. In Block v. Hirsh,41 Sup. Ct. Rep. 458, 16 A.L.R. 165, the statute therein considered permitted tenants in the District of Columbia to retain possession of property after expiration of leases and declared that "the provisions of title 2 are made necessary by emergencies growing out of the war, resulting in rental conditions * * * dangerous to the public health and * * * embarrassing to the Federal government in the transaction of the public business." The opinion, written by Mr. Justice Holmes, stated:

"No doubt it is true that a legislative declaration of facts that are material only as the ground for enacting a rule of law, for instance, that a certain use is a public one, may not be held conclusive by the courts. * * * But a declaration by a legislature concerning public conditions that, by necessity and duty, it must know, is entitled at least to great respect. In this instance Congress stated a publicly notorious and almost world-wide fact. That the emergency declared by the statute did exist must be assumed * * *."

The Act in suit does not recite the existence of any factual or physical conditions which create an impasse to legislation which will relieve the embarrassing condition of the state's tax structure. The difficulties arise in the application of constitutional principles. Both the legislature and the courts have their responsibilities in the premises.

By legislative enactment, chapter 40, Acts First Extraordinary Session 1933, the state has taken charge of the county and district roads of the state. By another enactment, chapter 8, Acts First Extraordinary Session 1933, the schools of the state, including those of independent school districts, have been incorporated into a county unit system under the supervision and in large measure the control of the state. These facts are urged in justification of the state's assuming the bonded indebtedness of various units of the state for roads and schools. In answer to this argument it need only be emphasized that legislative enactments do not obliterate constitutional inhibitions. The taking charge by the state of the supervision and maintenance of the county-district roads must be considered as an entirely different proposition from assuming the local debts that were incurred in constructing them. Nor is it evident that the establishing of the county unit system for schools impairs the moral or legal obligation of the people who created the local school debts to discharge them, or creates by implication any obligation on the state to assume the burden of such debts. It is to be remembered, too, that the state has not taken the county-district roads away from the communities which built them; that, of course, would be physically impossible. What the state has done is to assume the burden of their maintenance. The school houses, also, whether paid for from the proceeds of bonds or not, remain permanently for the use of the communities which brought them into being.

The Act in question (Committee Substitute for House Bill No. 64) after appropriating out of the state treasury for the fiscal years ending June 30, 1934, and June 30, 1935, from taxes to be derived from incomes "so much moneys as may be required to meet all interest and sinking fund charges due and to become due during the said years" upon local bonded indebtedness (except municipalities) for roads and schools, carries a provision disclaiming that it is the purpose of the act to relieve the local units of such debts. However much or little this saving clause may amount to, the bold fact appears from the Act itself, that, at least to the extent of the appropriation sought to be made by the Act, the legislature is proposing to have the state assume or become responsible for the debts of local units. This is the very thing which the Constitution says may not be done. If we are to have constitutional government, we cannot by circumvention or indirection avoid the meaning of plain words in our organic law.

While Article XII, section 1, of the State Constitution, requires the legislature to provide for a thorough and efficient system of free schools, section 5 of the same article designates the sources of revenue for the support thereof. The latter section reads:

"The Legislature shall provide for the support of free schools by appropriating thereto the interest of the invested 'School Fund,' the net proceeds of all forfeitures and fines accruing to this State under the laws thereof; the State capitation tax, and by general taxation of persons and property or otherwise. It shall also provide for raising in each county or district, by the authority of the people thereof, such a proportion of the amount required for the support of free schools therein as shall be prescribed by general laws."

It thus appears that the support of public schools was made to partake of a dual character, with discretion vested in the legislature as to an equitable application of state funds.

Pursuant to permissive legislation, local taxing school units incurred bonded indebtedness which was in each instance, abinitio, the debt of the particular unit incurring it. These debts made possible the construction of valuable improvements for the special benefit of the respective communities themselves. In reason and fairness, the communities which incurred the debts should pay them. No other community had any voice in contracting the debts and should not therefore be required to help pay them. Since the formation of the state, it has been the constitutional concept that a community should not be permitted to incur indebtedness for its special benefit and then be relieved of its solemn, self-imposed obligation through paternalism.

As a practical matter, state funds have been used to supplement the support afforded by local school units, and under the Constitution such supplementation may now be increased by the legislature on such equitable basis of distribution as it may deem proper. The legislature has wide discretion with reference to the public school system but it may not constitutionally cast upon the state the burden of school bonds contracted by local units. Although, in the first instance, the legislature could have placed on the state the major burden of support of elementary and high schools, it did not do so. And, upon the local units rested the entire burden of acquisition of school properties. The present bonded indebtedness is a creature of that responsibility.

We are also of opinion that the plaintiff's position that the act in question is in violation of the due process clause of section 1 of the Fourteenth Amendment of the Constitution of the United States is well taken. The purpose of that clause is to protect the individual from the arbitrary exercise of governmental power. Bank of Columbia v. Okely, 4 Wheat. 235, 244; Dent v. West Virginia, 129 U.S. 114, 124; Twining v. NewJersey, 211 U.S. 78, 101; Scott v. McNeal, 154 U.S. 34, 45. The same high authority has also laid down this basic principle in respect of the sovereign right of taxation: "The power of taxation, indispensable to the existence of every civilized government, is exercised upon the assumption of an equivalent rendered to the taxpayer in the protection of his person and property, in adding to the value of such property, or in the creation and maintenance of public conveniences in which he shares, such, for instance, as roads, bridges, sidewalks, pavements, and schools for the education of his children. If the taxing power be in no position to render these services, or otherwise to benefit the person or property taxed, and such property be wholly within the taxing power of another state, to which it may be said to owe an allegiance and to which it looks for protection, the taxation of such property within the domicil of the owner partakes rather of the nature of an extortion than a tax, and has been repeatedly held by this court to be beyond the power of the legislature and a taking of property without due process of law." Union Transit Co. v.Kentucky, 199 U.S. 194, 202. Among other cases holding that a state may not tax property beyond its bounds are the following:Looney v. Crane Co., 245 U.S. 178; International Paper Co. v.Massachusetts, 246 U.S. 135. Under these same principles, a municipality may not impose taxes for its own benefit upon property beyond its boundaries. Wells v. City of Weston, (Mo.) 66 Am. Dec. 627. Nor may the bounds of a municipality be unwarrantedly extended for the purpose of bringing in farm property to subject it to taxation for the benefit of the municipality. Morford v. Unger, 8 Iowa 82. In that case, the court said that if a tax "be imposed for the benefit of others, or for purposes in which those objecting have no interest, and are, therefore, not bound to contribute, it is no matter in what form the power is exercised — whether in the unequal levy of the tax, or in the regulation of the boundaries of the local government, which results in subjecting the party unjustly to local taxes, it must be regarded as coming within the prohibition of the constitution designed to protect private rights against aggression, however made, and whether under the color of recognized power or not." In conformity with these principles, the Supreme Court of Virginia in the case of Robinson v. City of Norfolk, 108 Va. 14,60 S.E. 762, held invalid a statute which authorized municipalities to levy license taxes on circuses exhibiting within one mile of municipal boundaries. In the opinion the court said: "To tax occupations outside of a city for the benefit of those living in a city is, in effect, taking the property of a citizen for private use; that is, for the use of a particular community, of which the outside citizen forms no part. Whether it be called a tax or the appropriation of property, the result is precisely the same. Power to violate those rights would seem to be quite beyond the lawful authority of any government, and certainly the legislative department of the government cannot arbitrarily take the property of one citizen to give it to another, and, of course, cannot authorize others to do so." Of course, a tax for a private purpose, as distinguished from a public one, violates the due process clause. Loan Association v. Topeka, 20 Wallace 655 (87 U.S.).

Concededly, in this jurisdiction revenue collected by the state, whether under direct property tax or otherwise, may be used by the state for state purposes, including support of free schools. Constitution of West Virginia, Art. X, sec. 5. But the using of state funds to pay local debts, as contemplated by the act in question, would place upon the plaintiff the burden of paying debts in the contracting whereof he had no voice, and from which he derives no benefit. As demonstrated by the cases above cited, this is a taking of private property without due process of law.

By the same measure the act is violative of the due process clause of the Constitution of West Virginia, Art. III, sec. 10.

These are difficult days but they are not so difficult that organic law must be disregarded, or circumvented by forced constructions. The underlying purpose of written constitutions is that there may be a safe and definite harbor for the ship of state in times of tempest. Great tribulations of government do not arise in periods of administrative calm. They manifest themselves when the clouds are heavy. It is then that a constitution proves its worth in preserving for the people those fundamental principles of free government which are indispensable to the well-being of our democratic institutions.

If organic law be subverted through expediency, the basic guaranties of liberty are thereby imperiled. This truth is recognized and stated in our Constitution itself in dignified and forceful phraseology:

"The provisions of the Constitution of the United States, and of this State, are operative alike in a period of war as in time of peace, and any departure therefrom, or violation thereof, under the plea of necessity, or any other plea, is subversive of good government, and tends to anarchy and despotism." Sec. 3, Art. I, Const. W. Va.

In the light of all that is above written, we reverse the decree of the trial chancellor, overrule the demurrer to the bill and remand the cause for further proceedings not at variance with the principles stated in this opinion.

Reversed and remanded.