Tsutras v. Williamson

I can not agree to the holding of the majority that, under the statutory provisions here involved which confer upon a municipality the authority to impose a license tax for its use upon anything done within the town for which a state license is required, the power of the municipality, in the absence of statutory restrictions, to impose a license tax on a business or an activity greater in amount than that imposed by the State for the same activity is not limited, except that the municipality may not impose a tax in an amount which would make prohibitive the operation of the activity under a license granted by the State. That construction or application of the provisions of the statutes, Code, 1931, 8-4-13, and Section 24 of Chapter 136, Acts of the Legislature, 1933, Regular Session, quoted in the opinion of the majority and pursuant to which the ordinance of the City of Williamson, here under attack, was adopted, is, in my opinion, logically unsound, legally unwarranted, and necessarily productive of uncertainty and confusion in every instance in which the license tax imposed by a municipality exceeds in amount that imposed by the State upon the same activity.

The statute, Section 10 of Chapter 119, Acts of the Legislature, 1939, Michie's Code, 1943, 11-12-10, cited in the majority opinion as "Code, 11-12-10", which imposes an annual tax of $5.00 for a state license on the same activity for which the defendant, The City of Williamson, under the ordinance exacts an annual license tax ranging, in the variously specified situations, from $6.00 to $24.00, and the quoted provisions of the statutes already referred to, must be read, considered, construed and applied together, and none of them can be invoked or pursued to the exclusion or disregard of any of the others. Statutes which relate to the same subject must be read and construed together in order that effect may be given to all the provisions of each statute. 51 Am. Jur., Taxation, Section 312. Harbert v. County Court of HarrisonCounty, 129 W. Va. 54, 39 S.E.2d 177; White v. Morton, 114 W. Va. 29,171 S.E. 762; State v. Hoult, 113 W. Va. 587,169 S.E. 241; State v. Reed, 107 W. Va. 563, 149 S.E. 669; Hays v.Harris, 73 W. Va. 17, 80 S.E. 827; State v. Snyder, 64 W. Va. 659,63 S.E. 385. This fundamental rule of statutory construction applies to tax statutes. The application of this rule requires that, in dealing with the statutes here involved, consideration and effect be given to the limitation of the amount imposed by the State for the privilege of engaging in the same activity as that for which, by virtue of the grant by the Legislature of taxing power to the municipality, it may also impose a tax.

With respect to the extent and the limits of the taxing power of a municipality the generally recognized principle is that a grant of that power to it by the Legislature will be strictly construed. 38 Am. Jur., Municipal Corporations, Section 385. See Harvey Coal Coke Company v. Dillon, Tax Commissioner,59 W. Va. 605, 53 S.E. 928, 6 L.R.A. (N.S.) 628. In construing and applying statutes which impose taxes the well established rule is that where the intent or the meaning of such statutes is doubtful they will, in the absence of an expression of a contrary legislative intention, be construed most strongly against the taxing authority and in favor of the taxpayer. Any doubt as to the meaning of statutes of this character is to be resolved against the taxing authority and in favor of the taxpayer. 51 Am. Jur., Taxation, Section 316. Harvey Coal Coke Company v. Dillon, Tax Commissioner, 59 W. Va. 605,53 S.E. 928, 6 L.R.A. (N.S.) 628. Another well established rule is that in construing a tax statute, where there are two possible constructions, that construction will be preferred which does not produce unfair, arbitrary or oppressive results. 51 Am.Jur., Taxation, Section 315.

Under these well established and generally recognized principles of statutory construction, if applied to the statutes now under consideration, it appears clear to me that the restriction of $5.00 as the limit in amount of the annual license tax imposed by the State on the activities which it also permits the City of Williamson to tax under the provisions of Code, 8-4-13, and Section 24 of Chapter 136, Acts of the Legislature, 1933, Regular Session, by necessary implication and by virtue of the express provision in Section 24 that nothing contained in any ordinance "shall be in conflict with the constitution or laws of this state or of the United States of America", limits the amount of the tax to be imposed by the city to that expressly fixed for an annual state license for the same activity when performed within the municipality. Without such limitation there seems to me to exist, in actual practice and operation, the strange incongruity of the sovereign State whose plenary power of taxation, as exercised by its Legislature, is limited only by constitutional provisions, restricting itself to an annual tax of $5.00 and, at the same time, passively permitting its creature to impose upon the same activity a tax which is unlimited in amount except when it operates to deprive the sovereign of the tax which it has exacted from the same taxpayer. Of course the Legislature can confer power upon a municipality to exact a greater tax than that fixed by statute for a state license for the same activity, but I think that the existing statutes do not authorize the higher municipal license tax. In my judgement the mere absence of any restriction in Code, 1931, 8-4-13 and in Section 24 of Chapter 136, Acts of the Legislature, 1933, Regular Session, as to the amount of the tax, does not take the place of an express grant of power or operate as recognition that such power exists in the municipality to levy a municipal tax greater in amount than that of the State tax for engaging in the same activity.

I reject as utterly unsound and impractical the construction placed upon the statutory provisions quoted in the majority opinion because, in my judgement, it will inevitably lead to uncertainty and confusion in every instance in which a municipality imposes a tax in excess of that imposed by the State upon persons engaged in the same activity within the municipality and become a fruitful source of controversy and litigation in the effort to determine when the excess in the amount of the municipal tax defeats the collection of the tax imposed by the State by making the operation of the twice taxed activity prohibitive, which is the only limit fixed by the holdng of the majority as to the amount of the tax which may be imposed by the municipality. Who knows or can say, except a court, in litigation instituted to determine the question, after a time consuming and costly hearing, whether the tax imposed by the city has the effect of depriving the doubly taxed activity of its financial ability to pay the tax imposed by the State after it has survived and paid the tax previously exacted by the municipality? And before its ability so to pay has been exhausted and before that exhaustion has been recognized or officially determined, will the taxing power of the municipality authorize and sustain a municipal tax ten, or twenty, or fifty times more than the tax imposed by the State? The holding of the majority suggests and creates these questions, but does not answer any of them except as to the excess of the present municipal tax over the tax fixed by the State which the defendant has imposed and which is now held to be valid. It is not unreasonable to suppose that, under the holding of the majority, in instances in which a municipality will levy a tax in excess of that fixed for a state license for the same activity, the taxpayer will assert, and the municipality will deny, that the excess is prohibitive and, though the twice taxed operator must establish the prohibitive effect of the municipal tax, that requirement will not arrest his contentious action and a lawsuit will follow.

With deference, I can not bring myself to believe that in exercising its sovereign power of taxation the Legislature, which is presumed to know existing statutes, by enacting either the provisions of Code, 8-4-13, or the provision of Section 24 of Chapter 136, Acts of the Legislature, 1933, Regular Session, intended to accomplish the illogical and unsatisfactory result to which these statutes, as now construed and applied, give rise with respect to the practical matter of taxation. I would read and construe together the provisions of Code, 8-4-13, Section 24 of Chapter 136, Acts of the Legislature, 1933, Regular Session, and Section 10 of Chapter 119, Acts of the Legislature, 1939, Regular Session, Michie's Code, 1943,11-12-10, give effect to every provision of all three statutes, resolve the doubt as to their meaning with respect to the limit fixed upon the amount of the municipal tax against the municipality and in favor of the taxpayer and, by necessary implication and recognition of the prohibition against conflict by the ordinance with any law of this State, contained in the concluding sentence of Section 24, restrict the amount of the tax to be imposed by the city to the amount of $5.00 fixed by Section 10 of Chapter 119, Acts of the Legislature, 1939, Regular Session, Michie's Code, 1943, 11-12-10, for an annual state license for engaging in the same activity.

In support of its conclusion, the majority directs attention to the action of the Legislature in eliminating from Code,11-12-9, an earlier statutory provision that "no incorporated city, village or town shall impose or require the payment of a greater annual license tax for doing any act or engaging in any business within the limits of such city, village or town, than the state tax imposed by this chapter for doing the same act or engaging in the same business or occupation, except in such city, town or village having a special charter which reserves to the council the right to fix the rate of such license." The principal reason for omitting this provision, as explained in the note of the Revisers of the Code of 1931, quoted in the majority opinion, was that, as the provision was "designed primarily to apply to liquor licenses", which, as is well known, were, before the era of Prohibition, granted by municipalities, it was rendered obsolete by the drastic revision of the law of this State relating to that troublesome and controversial subject. In my judgment the elimination of that provision of the earlier act, originally passed before the advent of total Prohibition in this State, can, by no sound process of reasoning, justify the conclusion that by such action, the Legislature intended to create or recognize in any municipality taxing power which is practically unlimited as to the amount of the tax. The view that the omission of the provision has that effect is inconsistent with the well recognized and firmly established principles that "the authority of municipalities to levy a tax must be made clearly to appear, and that doubts, if any, as to the power sought to be exercised, must be resolved against the municipality;" and that "the power to tax is a separate, independent power, and exists in municipal corporations only to the extent to which it is clearly conferred by their charters or other state statutes, and its existence cannot be inferred or deduced from other powers conferred," 38 Am. Jur., Municipal Corporations, Section 385. See also Hyre v. Brown, 102 W. Va. 505, 135 S.E. 656, 49 A.L.R. 1230, in which this Court, in referring to the powers of a municipal corporation, said in Point 3 of the syllabus: "Where a fair, substantial, reasonable doubt exists as to whether such corporation is possessed of a power, the power must be denied." In my opinion, a construction which, by reason of the elimination of the above quoted provision of the former statute, recognizes the power of a municipality to impose a tax without limit as to amount, is contrary to sound public policy in matters of taxation and tends to produce the intolerable practical results to which I have already adverted. Such construction also ignores the warning, sounded by Daniel Webster in his argument in McCullouch v. The State of Maryland, 4 Wheaton 316,4 L.ed. 579, and since repeated by many Courts, that "An unlimited power to tax involves, necessarily, a power to destroy."

I disagree with the construction placed upon the statutes here under consideration for an additional reason. If the Legislature had intended, in enacting these statutes, to give a municipality the power to impose a tax in excess of that fixed for a state license upon the activity taxed, it could, and doubtless would, have made that intention plain by the use of apt and adequate terms. Its failure so to do is significant. Under the recognized and established principle of interpretation of written instruments, including statutes, that the expression of one thing implies the exclusion of another, contained in the phrase "expressio unius est exclusioalterius", the omission of a provision which would clearly confer the authority upon a municipality to impose a tax greater in amount than that imposed for a state license for the same act indicates to me that the Legislature intended to limit the amount of the municipal tax to the amount fixed by Section 10 of Chapter 119, Acts of the Legislature, 1939, Regular Session, Michie's Code, 11-12-10, for a license granted by the State to engage in the same activity.

Instead of holding with the majority that "In the absence of statutory restrictions, the power of a municipality to impose a license tax on a business or activity greater in amount than the license tax imposed by the State for the same activity, is not limited as to amount, except that it may not impose a tax, the effect of which would be to make prohibitive operation under a license granted by the State.", I would hold that, when it does not clearly appear that power has been conferred upon a municipality to impose a tax greater in amount than that fixed by the State for a license to engage in the same activity, the power of a municipality to impose such tax is limited to the amount of the license tax imposed by the State for the same activity.

I respectfully dissent from the decision of the majority in this case; and, for the reasons stated, I would reverse the decree of the circuit court.

I am authorized to say that Judge Lovins joins in this dissent.