Michael C. Farber, Esq.
Sutton, West Virginia
Attorney for Appellants
Jeffery A. Davis, Esq.
Clay County, West Virginia
Clay, West Virginia
Attorneys for Appellees
JUSTICE NEELY delivered the Opinion of the Court.
CHIEF JUSTICE BROTHERTON did not participate.
RETIRED JUSTICE MILLER sitting by temporary assignment.
1. An emergency ambulance service fee that taxes each
household regardless of the number of members $25 a year to support
ambulance services succeeds in tying the burden of the fee to the
usage of the service in a sufficiently reasonable way to satisfy
the requirements of W. Va. Code 7-15-17  and it is valid,
lawful and enforceable under W. Va. Code 7-15-17 .
2. The Clay County Special Emergency Ambulance Service
Fee Ordinance enacted pursuant to the authority of W. Va. Code
7-15-17  does not deny residents of the county due process of
law or equal protection of the laws because it fails to tax non-
resident landowners who are not regular users of ambulance
In the circuit court, the appellantsSee footnote 1 challenged the
constitutionality of W. Va. Code 7-15-17  which allows county
commissions to impose a Special Emergency Ambulance Service Fee.
The circuit court concluded that the Special Emergency Ambulance
Service Fee Ordinance was constitutional and this appeal followed.
We affirm the circuit court.
On 13 May 1991, the Clay County Commission enacted the
Special Emergency Ambulance Service Fee Ordinance and imposed a $25
annual fee upon "any bona fide owner or occupant of a living unit
within the geographic boundaries of Clay County, West Virginia."
The ordinance defines "living unit" as "any personal property and
real property owner and taxpayers in any place of residence as
classified by the records of the Clay County Assessor which include
residential homes, mobile homes, apartments, personal care
facilities, nursing homes and correctional facilities." The
Special Emergency Ambulance Service Fee was defined as "a specified
uniform fee charged to each living unit that ambulance service is
made available to and entitles the resident user to necessary 911
emergency transport calls to the nearest medical facility and includes the services set forth in 'Ambulance Rates' below. . . ."
Essentially this ordinance assesses a fee on each Clay County
household to support the provision of ambulance services.
The appellants' challenge to the service fee ordinance is
twofold: (1) the ambulance service fee confounds the equal and
uniform property taxation requirement of W. Va. Const. art. X, § 1
because the fee is imposed only upon occupants of residential
property and not upon mineral owners and other owners of raw land;
and, (2) the gross underassessment of natural resource property in
Class III imposes an unfair burden on the homeowners in Class II
such that "even though homeowners in Class II are taxed at a lower
levy rate they actually paid more in property taxes in 1992 than
all Class III owners."
W. Va. Code 7-15-17  states:
A county commission may, by ordinance, impose upon and collect from the users of emergency ambulance service within the county a special service fee, which shall be known as the "special emergency ambulance service fee." The proceeds from the imposition and collection of any such special service fee shall be deposited in a special fund and used only to pay reasonable and necessary expenses actually incurred and the cost of buildings and equipment used in providing emergency ambulance service to residents of the county. Such proceeds may be used to pay for, in whole or in part, the establishment, maintenance and operation of an authority, as provided for in this article.
As used in this section, "users" means any person to whom emergency ambulance service is made available under the provisions of this article.
This Code section authorizes a county commission to impose and collect a special emergency ambulance service fee from the "users of emergency ambulance service." According to W. Va. Code 7-15-17 , "'users' means any person to whom emergency ambulance service is made available under the provisions of this article."
In their first challenge, the appellants argue that the ambulance fee is essentially an ad valorem tax, which violates the "equal and uniform" taxation requirement of W. Va. Const. art X, §1.See footnote 2 However the record shows that the ambulance fee is reasonably related to the service's use and is not imposed as an additional ad valorem tax. In City of Fairmont v. Pitrolo Pontiac-Cadillac, Co., 172 W. Va. 505, 308 S.E.2d 527 (1983), cert. denied, 466 U.S. 958 (1984), this Court held that fees assessed for fire service by the City of Fairmont constituted an ad valorem tax and not a service fee because the city used assessments made by the county assessor for the general property tax to determine the value of the property subject to charge and set the charge in proportion to the property value. Consequently, we held that because the tax rate was based on the value of property and the city was already at maximum authorized levy rate, the tax violated our constitutional levy provisions. W. Va. Const. art. X, § 1; W. Va. Code 8-13-13  (authorizing fees for municipal services); W. Va. Code 11-8- 6(d) (maximum levies on each property classification). Accord Hare v. City of Wheeling, 171 W. Va. 284, 298 S.E.2d 820 (1982).
In McCoy v. City of Sistersville, 120 W. Va. 471, 199
S.E. 260 (1938) this Court held invalid ordinances relating to
(1) street lighting; (2) sanitary sewerage; (3) garbage collection;
and, (4) street cleaning. The basis of the McCoy decision was that
such ordinances imposed, in violation of the predecessor of W. Va.
Code 8-13-13 , a burden upon the owners of property, rather
than upon all users of the services. However, a fire protection
ordinance was upheld in McCoy upon the theory that property owners
were the primary users of the fire protection service.
Nonetheless, with respect to the fire protection ordinance, this
Court noted that had the entire value of the real estate and the
assessed value of personal property been used as a basis for the
fire protection charge, "a serious question would have been raised
as to a violation of the limitation amendments . . . ." 120 W. Va.
at 478, 199 S.E. at 263.
Then, in City of Moundsville v. Steele, 152 W. Va. 465,
164 S.E.2d 430 (1968), this Court upheld an ordinance that imposed
a charge for street maintenance upon occupiers of improved property
abutting the streets of the city. We concluded that a 25 cents per
front foot of improved property abutting the street was a valid and
reasonable classification for the imposition of a street
maintenance user fee.
Consequently, this Court-- exactly contrary to the
appellants' contention-- has consistently held that user fees must
be imposed in a way reasonably related to use of the service and
cannot be imposed in such a way as simply to add to the ad valorem
property tax. In the case at bar, each "residential living unit"
is assessed a $25 fee.
The Clay County Special Emergency Ambulance Service Fee
is imposed under a scheme similar to fees imposed under W. Va. Code
8-13-13  which authorizes special charges for municipal
services and the imposition "upon the users of such service
reasonable rates, fees and charges." See Nine v. Grant Town, 190
W. Va. 86, 88, 437 S.E.2d 250, 252 (1993)(noting the purpose of W.
Va. Code 8-13-13 ); Ellison v. City of Parkersburg, 168 W.
Va. 468, 473, 284 S.E.2d 903, 906 (1981)(initial billing of the
municipal fees to the property's owner is not "inherently
unreasonable"). At oral argument, the appellants asserted that the fee scheme is inequitable because a single person living in an
apartment pays the same $25 that the head of a ten-child household
pays while the owner of a hunting camp that is used only
occasionally pays nothing.
We recognize that perfect equity is impossible to achieve
in any tax scheme, but perfect equity is not the test. The fee
enacted by the Clay County Commission succeeds in imposing upon and
collecting "from the users of emergency ambulance service within
the county a special service fee . . . ." Obviously, owners of raw
land do not use ambulance services; owners of mineral interests do
not use ambulance services; and owners of huge farms do not use
ambulance services any more frequently than renters of apartments.
Given the administrative difficulties of collecting the fee on any
basis other than a per household basis, we find that the fee
imposed is sufficiently related to the use of the special service
for which the fee is imposed that the scheme survives
constitutional challenge. An emergency ambulance service fee that
taxes each household regardless of the number of members $25 a year
to support ambulance services succeeds in tying the burden of the
fee to the usage of the service in a sufficiently reasonable way to
satisfy the requirements of W. Va. Code 7-15-17  and it is
valid, lawful and enforceable under W. Va. Code 7-15-17 .
Thus we find that the Clay County Special Emergency
Ambulance Service Fee Ordinance enacted pursuant to the authority
of W. Va. Code 7-15-17  does not deny residents of the county
due process of law or equal protection of the laws because it fails
to tax non-resident landowners who are not regular users of
The appellants also assert that imposing this special
service fee upon ordinary residents of Clay County is
unconstitutional because the Clay County Commission has
systematically underassessed the natural resource property in Clay
County. Appellants argue that because W. Va. Const. art. X, § 1
requires "equal and uniform taxation" on its face, the gross
underassessment of natural resource property in Clay County is a
direct violation of this constitutional mandate. One part of the
second argument (which admittedly is difficult to follow) is that
the collection of a user fee from each residential unit in Clay
County violates due process and equal protection because the
ordinance does not apply to out-of-county landowners. Thus a small
homeowner is required to pay a fee, while a large out-of-state coal
owner has no obligation to support this public service.
Our earlier discussion of the constitutional limits of ad
valorem taxation as set forth in Pitrolo, supra, along with our
discussion of McCoy, supra, should have put to rest any notion that
nonusers of a public service can be taxed a fee dedicated to the
support of that service.See footnote 3 The larger issue that appellants argue,
however, is that fees of this type would not be necessary if the
West Virginia Legislature, the West Virginia Tax Commissioner, the
West Virginia Board of Public Works, and the Clay County Assessor--
all officials who have something to do with the taxation of public
utility and mineral property-- would do their jobs and assess
mineral interests "in proportion to its value," W. Va. Const. art.
X, § 1. Were this done, appellants argue, there would be
sufficient revenue available to the Clay County Commission that
special service fees on ordinary citizens would not be necessary.
The issue of the proper assessment of mineral lands,
public utility lands and large tracts of land held for speculation
or to harvest timber is constantly debated, and few subjects
command as much public attention as taxation. See e.g., Colman
McCarthy, A Fighter in W. Va., Wash. Post, Oct. 29, 1994, at A19
(W.Va. Sec. of State Ken Hechler discussing ways "to bring fairness
to our tax system"). In the case before us, the appellants invite us to do no less than use the Clay County Special Emergency
Ambulance Service Fee as a fulcrum upon which to rest the lever
that would completely overhaul (by judicial fiat) the tax system of
this State. We have discussed the need for fair taxation of all
property in this State on numerous occasions in the last 15 years
and see no reason to restate those principles here. See, e.g.,
Pauley v. Kelly, 162 W. Va. 672, 255 S.E.2d 859 (1979); Tug Valley
Recovery Center, Inc. v. Mingo County Comm'n, 164 W. Va. 94, 261
S.E.2d 165 (1979); Killen v. Logan County Comm'n, 170 W. Va. 602,
295 S.E.2d 689 (1982).
Although in a given case we will decide whether a
particular parcel of property has been taxed in proportion to its
value, we are judges and not legislators, assessors or tax
commissioners. Furthermore, we are sure that if we were to accept
the appellants' invitation to reassess all of the Class III and IV
property in West Virginia-- or even just in Clay County-- we would
do no better job of it than the tax commissioner and the assessors.
In addition, we would cease being judges and become publicans.
Accordingly, for the reasons set forth above, the
judgment of the Circuit Court of Clay County is affirmed.
Footnote: 1 The appellants include the Clay County Citizens for Fair Taxation, an unincorporated association, its officers, board members and other individuals.
Footnote: 2 W. Va. Const. art X, § 1, begins with the basic and fundamental premise that "taxation shall be equal and uniform through out the State. . . ."
Footnote: 3 See City of Charleston v. Bd. of Educ. of County of Kanawha, 158 W. Va. 141, 144, 209 S.E.2d 55, 57 (1974)("a charge by a municipality for services rendered or for conveniences provided is not a tax. [Citations omitted.]").