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In the Supreme
Court of Appeals of West Virginia
Docket No 13-1160
Pocahontas County Solid Waste Authority, Plaintiff
Vs.
Alikakos et als Pocahontas County Civil Action #
07-C-30(P) 13 February 2014
Petitioner's Reply Brief
Plaintiff
/Appellee PCSWA opens its belated
“Conslolidated (sic) Response” with a disingenuous characterization of
the background of this case and of the regulations out of which it arises.
The
so-called “Green Box Fee”, in actuality a tax,
imposed contrary to the West Virginia Constitution without assessment on
residential property, is not, as implied, the sole, nor a necessary, nor a
lawful, means to defray the costs of
operating a landfill. And the Response
is laughably but misleadingly truthful when it says that the so-called “fee” is
not mandatory. As Appellant has
abundantly documented, PCSWA has no lawful authority to make charges except for
services rendered; nor has it lawful authority to foreclose, as they affect to
do, uniquely to Pocahontas County owners of residential property, the use
of “other lawful manners” of waste
disposal and of its own landfill which charges commercial users lawfully by the
ton of waste disposed of there.
PCSWA's/Appellee's so-called
“Statement of Facts” on its Page 1 is essentially the same incomplete
and false representation it has made before, already rebutted in detail in
Motions 1, 9, 10, 13, 17, 38, and 43
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PCSWA
spends pages trying to argue that I am not appealing the summary judgement,
when this is plainly false as on page 8
of my Petitioner's brief , I ask for
three specific items of relief,
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including a finding that I owe the PCSAW nothing, which
would reverse the Summary Judgement. The
same statement is made in my Statement of Case and Relief Sought, dated 13
February 2014 . . In addition, PCSWA tries to say that I cannot
appeal the numerous erroneous denials
of my motions in which I showed that the
SWA itself and/or its alleged regulations were not according to law, because
these erroneous rulings did not finally dispose of the case. However they did severally dispose of
respective issues of validity of the regulations under which the case is
brought, and each is then proper to be reviewed by this Honorable Court. If
these issues, the foundations of the final Order appealed, cannot be reviewed
by this Court, then no right to appeal exists in fact.
However
this should properly be phrased in the mysterious argot of the Law, if a rule
is not lawful, a judgement made under it cannot be lawful, this Court must be
the place to finally determine if it IS lawful,
and I must trust this Honorable Court's common sense to recognize this,
and do substantial justice, as I specified in my statements of Relief Sought.
PCSWA
references several Court cases, including City of Princeton v Stamper, City of
Huntington v Bacon, and Cooper v.City of Charleston.
All
these cases differ from, and are inapplicable to, the instant case, for the
following reasons as presented in my Motion 19a
1. Our American
Revolution confirmed and established on this shore the ancient Common Law
principle that taxes must only be levied
with representation, i.e. by
representative legislatures. City Councils are elected bodies, with both
inherent and enumerated powers to collect monies (taxes by-any-other-name) for
the general benefit of their citizens.
But
the PCSWA is constituted by law (WV Code§22C-4-3(b)) as a body of appointees,
three out of five of whom are appointed
by bodies themselves non-representative, therefore the PCSWA cannot be
construed as a representative body with any inherent power of general taxation
or assessment, but only such specific powers of charging fees for, and
proportionate to, services received,
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as specified by law ( see WV Code§7-5-22, §22-15-11, §22C-4-11, §22C-4-23,
§22C-4-30, and Motion #9) .
Nota Bene that the Law does not
say that Solid Waste Authorities may collect money, “...for general benefits
enjoyed.”
“It is axiomatic under the
American republican form of government that "the representatives of the
people must impose the taxes the people are to pay." 1 T. Cooley, The
Law of Taxation § 21 at 84 (4th ed. 1924). This fundamental principle of government
comes from England and precedes the American Revolution. It was recognized that imposition of taxes
was a legislative power, and the sovereign could not levy taxes except as
authorized by the representatives of the realm.
Id. "No taxation without representation"
subsequently became a rallying cry in the American colonies' fight for
independence from the British crown, as evidenced by the list of grievances set
out in the Declaration of Independence.
That historic document condemned the British monarchy "for imposing
Taxes on us without our Consent”.
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1.
The framers of the United States Constitution recognized the fundamental
requirement of representative taxation in the organic law of the country when
they gave sole authority "to lay and collect taxes" to Congress. U.S.
Const. art. I, § 8. Similarly, the West Virginia Constitution vests in the
legislature the power to impose taxes. W. Va. Const. art. 10, §§ 1, 5, 9.
. It is a fundamental, indeed perhaps the founding principle
of our Country, having been the gravamen of he American revolution, that taxes may only be levied by
representative assemblies” (Michie’s Jurisprudence)
2. City of Princeton v Stamper has
been cited in a case before the PSC
(which is not a Court of Law; indeed ALJ McCann specifically stated that he would
not rule on the basis of the WV Code in
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the case)(Wilkinson v PCSWA),
as supporting the power of the Plaintiff PCSWA to impose the charges which are
the subject of this action, but this decision is inapplicable and the reasoning
which attempts to apply it here, false:
City of Princeton is not relevant to this
case for two main reasons, the first being that the City regulation upheld
there was enacted by the City Council, an elected, that is, a representative
body. Once again, it is a fundamental, indeed perhaps the founding principle of our Country having been
the gravamen of the American revolution,
that taxes may only be levied by representative assemblies. The SWA is a
Board of appointees, in turn appointed largely by administrative rather than
elected bodies, and therefore has no general power of taxation for the support
of general welfare; and, second:
The Defense (in Wilkinson; in the instant
action it is the Plaintiff) quotes the City
of Princeton decision, “an ordinance............is a reasonable and
valid exercise of the police powers granted to the City..” PCSWA’s MGDR’s are not an ordinance, because
the PCSWA has no grant of power to enact Ordinances...and also does not possess
the police powers reasonably imputed or granted to a City or to another
representative governing body.
3. It is a settled and fundamental principle
of our system of government that the powers of government are enumerated, are
limited to those enumerated or granted to them by the people through their
representative assemblies, and are not plenary.
And
the Law is clear as referenced supra that
among the SWA’s enumerated powers is not that of general taxation, or any
policing, nor establishing Ordinances,
but only the power to charge fees for USE of specific
services. Nota Bene that the Law does NOT say, “...for general benefits to
the entire populace.”
Moreover,
if any argument be made to the effect that proper handling of solid waste,
which these regulations may be alleged to promote, is a general public good
which may properly be paid for generally by the benefiting public, it must be
recognized that general public benefits which cannot be
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apportioned to specific recipients
are financed by taxation, which our American Revolution established must only
be levied with representation, or by representative legislatures.(supra)
On the other hand, a
relevant case, Darnell et als v. Park Commissioners (124 WV 787, 22SE
2d 542), says,
“An attempted assessment
for street improvement, laid on property abutting on the street improved, by a
public authority having no power to lay the same, is void, and may be enjoined
in a court of equity, regardless of statutory remedies.”
“The question raised as to
the power of the Board of Park Commissioners to lay an assessment against the
plaintiffs' property is decisive of the case before us. If the park board had
no power to lay such assessment, its action in doing so was and is void.
"Equity has jurisdiction to entertain a bill by a taxpayer, suing for himself
and all others similarly situated, to enjoin the laying of a levy for which
there is no legal authority." Vinson v. County Court, 94 W.
Va. 591, 119 S.E. 808. So that if we hold the park board was not vested with
power to lay the assessment and the same was void, there [***7] can be no doubt of the correctness of the
court's action in overruling the general demurrer. We will, therefore, proceed
to discuss and decide the vital question presented.”
“As we understand the
briefs and arguments, it is conceded that unless expressly conferred, or
arising by necessary implication from powers expressly conferred, a municipal
corporation, or a corporation such as the Board of Park Commissioners, has no power to assess
taxes or impose assessments upon property lying outside the limits of the
municipality or other taxing district. The defendant claims that such authority
is expressly conferred by statute or necessarily implied therefrom, and the
plaintiffs take the opposite position. We think it devolves upon the Board of
Park Commissioners to clearly establish their claim for the reason that it is
fundamental that "Laws imposing taxes must be construed
strictly and most strongly against the state, and all doubts
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must
be resolved in favor of the taxpayer." [**546]
9 Digest of Virginia and West Virginia Reports, page 428, and cases
there cited. Therefore, unless it
plainly appears that the statutes creating and defining the powers of the Board
of Park Commissioners confer this power, the position of the plaintiffs must be
sustained.”
“Taxation without
representation is just as unsound today as it was in earlier periods of our
history.”
The power to acquire, own
and develop property outside of the city is something quite different from the
power of exercising a taxing power conferred upon a municipality or park board
within the city itself. The Board of Park Commissioners is an elective body,
selected by the qualified voters of the park district, which is the City of
Huntington. The voters of that city or district have a voice in the selection
of officials who will exercise the powers conferred upon the board. In that way
they have some power to circumscribe the actions of the board [***13] they have created. No such power exists as to
those who own property lying outside of
the city, unless it be in a case where the owner of property located outside
the city and is a resident of the city, and such a situation would be unusual.
It is not necessary to decide, and we do not decide, that the legislature had
power to confer upon the Board of Park Commissioners of the City of Huntington,
or upon the City of Huntington itself, the right to lay assessments for street
improvements on abutting property, specially benefited, lying outside the
boundaries of the park district or the city. We only say that such a power,
being of a doubtful nature, we cannot assume that the legislature intended
to exercise the same in the absence of a clear showing of such intent.”
Nota Bene, the Park Commission was an elected Board, and thus the
pretense of power to impose a tax or assessment, on the part of PCSWA, is even
less warranted and more egregious than that of the Park Commission in the
quoted case. Note further that Darnell refers to an “assessment”, which is the
language which the PCSWA uses to refer to its “Green Box Assessment Fee”,
appropriately eliminating
the relevance of any controversy about
whether the charge imposed by the PCSWA is in fact a “tax” or a “fee”.
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Therefore the action, and the regulation on
which it is based, are incurably ultra
vires with respect to the Plaintiff, and must be dismissed with prejudice
PCSWA's Response refers to a case
styled James M.B. Vs Carolyn M ,
which appears to relate to the argument that no appeal can be granted in
this case, which I have already argued against and which would amount to denial
of due process.
PCSWA's Response refers to a case
styled Strahin v Lantz, which appears to relate to easements ant to have
no relevance here.
In
attempting find inherent power to enforce MGDR's in the PCSWA, PCSWA ignores the fundamental principle of
statutory construction, to illustrate which I could burden the record by
adducing scores of cases already familiar to this honorable Court, that all
portions of statutes must be construed together. The provisions that authorize collections of
monies must be modified by those that specify that charges must be proportional
to use of service (see Motion #9); the
provisions that refer to
enforcement must be modified by the plain
mandate to refer to the DEP (see Motion #12); the power to
sue must be limited by the same requirement
to refer/defer to the DEP in the matter of MGDR enforcement. Picking pieces of statutes out of context is
a regular trick of prosecutors greedy for convictions and unconcerned with
upholding their oaths or the Law, but
must not be countenanced or glossed over by this honorable Court.
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On page 17, PCSWA asserts that the
Authority was properly sworn and constitutional as of the date of the filing of
the instant action, however no evidence can be shewn that the Authority took
any official cognizance or voted any approval of the proceeding on or about
that date. Rather, the action is based, as explained in my Motions 5, and 6,
on regulations unconstitutionally adopted in 1995 and 2005, and on a
vote to “pursue collections” unconstitutionally taken in 2000, before any quorum
was sworn..
Constitution.
See also my Motions #14, #37
On Page 21, authority granted
to SWA's to promulgate regulations is correctly found in the law, but such
power is explicitly to implement the purposes of the Law, to which the
regulations that give rise to this action are in actual opposition. See
again my Motions #10 and #38.
On Page 23, PCSWA states that “residents of of any given County do not
have the discretion of choosing what is and what is not a lawful
manner....” In fact, precisely to the
contrary, in the total absence of specific
prohibition to the People of this right, and in the total absence of any
specific grant of power to the SWA to do so, under the Tenth Amendment to the
U.S Constitution, the citizens of the County do most definitely have this
discretion, which the alleged MGDR's allegedly adopted by the
Plaintiff/Appellee Pocahontas County Solid Waste Authority , and the instant
action brought thereunder, unlawfully and unenforceably attempt to strip from
them.
Respectfully Submitted by
John Leyzorek, pro se He respectfully demands as his right
recognized in Cottrell v Cottrell, Bush v Hammer, and others, the indulgence
and assistance of this honorable Court, wherever his research or his knowledge
of procedure may be deficient but he
attempts in good faith to make a valid point or to assert a right, or wherever
a valid defense or a right exists of which he is ignorant. He reserves the right to edit this filing to
correct errors or add supporting material.
(signed)
2133 Edray Road Marlinton WV 24954 3047997191
You've Got to Stand For Something or You will Fall for Anything!!!
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