No. 32891 Virgil T. Helton v. R. Michael Reed and Elk Run Coal Co., Inc.
Benjamin, Justice, concurring:
While I agree with the result reached in this case, I write separately because I
believe the majority unnecessarily embraces principles of equity in a case easily decided by
the application of statutory law.
Based upon the rules of statutory interpretation of the law applicable to this
case, a reversal of the circuit court's order is compelled. This Court has repeatedly said that
the term shall, as used by the Legislature, makes the statutory requirement mandatory
rather than directory. See
, Syl. Pt. 1, Nelson v. West Virginia Public Employees Ins. Bd.
W. Va. 445, 300 S.E.2d 86 (1992) (It is well established that the word 'shall,' in the absence
of language in the statute showing a contrary intent on the part of the Legislature, should be
afforded a mandatory connotation.). Accord State ex rel. Stump v. Johnson
, 217 W. Va.
733, 619 S.E.2d 246, 255 (2005). See also State ex rel. Brooks v. Zakaib
, 214 W. Va. 253,
264-65, 588 S.E.2d 418, 429-30 (2003) (Ordinarily, the word 'shall' has a mandatory,
directory connotation. (citations omitted)); State v. Allen
, 208 W. Va. 144, 153, 539 S.E.2d
87, 96 (1999) (Generally, 'shall' commands a mandatory connotation and denotes that the
described behavior is directory, rather than discretionary. (citations omitted)). Here, the
applicable statutory language is clear and without ambiguity in expressing legislative intent
and it should be given full force and effect. Resort to principles of equity is unnecessary.
W. Va. Code § 11-10-14 (d) (1) (2002) (See footnote 1)
unequivocally defeats the contentions
of respondents in this case. A statute may not, under the guise of interpretation, be modified,
revised, amended, distorted, remodeled or rewritten to achieve some other resort; and while
it may be unfortunate to this taxpayer that the Legislature did not foresee the situation now
before us, this Court should not rewrite the statute so as to provide the relief sought by
For the reasons stated above, I concur in the result reached by the majority in
this case. I do so, however, not because equity compels it, but rather because the rule of law
W. Va. Code § 11-10-24 (d) (1) (2002) provides, in pertinent part, [t]hat after the
thirty first day of December, two thousand two, the taxpayer shall file the petition with the
office of tax appeals in accordance with the provisions of section nine, article ten-a of this
chapter. (Emphasis added). Amendments made to W. Va. Code § 11-10-24 in 2003 did not
alter this portion of the statute.