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Wetzel County Solid Waste v. WV DNR

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 1995 Term
No. 22778
WETZEL COUNTY SOLID WASTE AUTHORITY,
A PUBLIC AUTHORITY OF THE STATE OF WEST VIRGINIA,
ROBERT PHILLIPS, JEAN PHILLIPS, ROBERT BURGESS,
HELEN BURGESS, ARNOLD SMITH, NANCY SMITH,
ORVAL SIZEMORE AND FLORA SIZEMORE,
Petitioners Below

v.
WEST VIRGINIA DIVISION OF NATURAL RESOURCES
AND ITS DIRECTOR, J. EDWARD HAMRICK, III;
ITS DIVISION OF WASTE AND MANAGEMENT AND CHIEF THEREOF,
GEORGE MAX ROBERTSON; AND LACKAWANNA
TRANSPORT COMPANY, A PENNSYLVANIA CORPORATION,

AND
WEST VIRGINIA DIVISION OF ENVIRONMENTAL PROTECTION, AND ITS DIRECTOR, DAVID CALLAGHAN; AND PASQUALE N. MASCARO, PRESIDENT AND OWNER OF LACKAWANNA TRANSPORT COMPANY, Respondents Below
Certified Question from the Circuit Court of Kanawha County Honorable James O. Holliday, Special Judge
CERTIFIED QUESTION ANSWERED; CASE REMANDED. ___________________________________________________
Submitted: May 10, 1995 Filed: July 14, 1995
Larry Harless Charleston, West Virginia Attorney for the Petitioners Below Logan Hassig Timothy E. Haught Wendy E. Greve Snyder & Hassig New Martinsville, West Virginia William F. Fox, Jr. Harleysville, Pennsylvania Attorneys for Lackawanna Transport and Pasquale N. Mascaro
Darrell V. McGraw, Jr. Attorney General David L. Lahr Assistant Attorney General Environmental & Energy Division Charleston, West Virginia Attorneys for the West Virginia Division of Environmental Protection; Director, David C. Callaghan; and Chief of the Office of Waste Management, George Max Robertson
Darrell V. McGraw, Jr. Attorney General Silas B. Taylor Senior Deputy Attorney General Charleston, West Virginia Attorney for Department of Tax & Revenue Amicus Curiae
W. Dean DeLaMater DeLaMater & Hagg Weirton, West Virginia Attorney for Brooke County Solid Waste Authority Amicus Curiae
CHIEF JUSTICE McHUGH delivered the Opinion of the Court.

JUSTICE BROTHERTON AND JUSTICE RECHT did not participate.
JUDGE FOX and RETIRED JUSTICE MILLER sitting by temporary assignment. SYLLABUS BY THE COURT

1.
"'"In considering the constitutionality of a legislative enactment, courts must exercise due restraint, in recognition of the principle of the separation of powers in government among the judicial, legislative and executive branches. Every reasonable construction must be resorted to by the courts in order to sustain constitutionality, and any reasonable doubt must be resolved in favor of the constitutionality of the legislative enactment in question. Courts are not concerned with questions relating to legislative policy. The general powers of the legislature, within constitutional limits, are almost plenary. In considering the constitutionality of an act of the legislature, the negation of legislative power must appear beyond reasonable doubt." Point 1 Syllabus, State ex rel. Appalachian Power Company v. Gainer, 149 W. Va. 740 [, 143 S.E.2d 351 (1965)].' Syl. pt. 3, State ex rel. W. Va. Housing Development Fund v. Copenhaver, 153 W. Va. 636, 171 S.E.2d 545 (1969)." Syl. pt. 3, State ex rel. Lambert v. County Comm'n, ___ W. Va. ___, 452 S.E.2d 906 (1994).

2.
"The character of a tax is determined not by its label but by analyzing its operation and effect." Syllabus point 2, City of Fairmont v. Pitrolo Pontiac-Cadillac, 172 W. Va. 505, 308 S.E.2d 527 (1983).

3.
The solid waste assessment fee authorized by W. Va. Code, 7-5-22 [1990] is a regulatory fee rather than a tax since the revenue from the fee is used for the sole purpose of defraying the costs of the administration of duties imposed upon the county or regional solid waste authorities. Therefore, W. Va. Code, 7-5-22 [1990] does not violate


W. Va. Const. art. V,

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