Board of Sup'rs of Henrico County v. Corbett

• Decision Date: 14 June 1965
• Citation: Board of Sup'rs of Henrico County v. Corbett, 142 S.E.2d 504, 206 Va. 167 (1965)
• Court: Virginia Supreme Court
• Parties: The BOARD OF SUPERVISORS OF HENRICO COUNTY v. A. Q. CORBETT, Director, etc.

Page 504

142 S.E.2d 504

206 Va. 167

The BOARD OF SUPERVISORS OF HENRICO COUNTY v.A. Q. CORBETT, Director, etc.

Supreme Court of Appeals of Virginia.

June 14, 1965.

William F. Parkerson, Jr., Paul M. Shuford, Richmond (H. Ratcliffe Turner, Richmond, on brief), for petitioner.

Walter E. Rogers, Richmond (Williams, Mullen & Christian, Richmond, on brief), for defendant.

Before EGGLESTON, C. J., and STRATLEY, BUCHANAN, SNEAD, I'ANSON, CARRICO, and GORDON, JJ.

SPRATLEY, Justice.

The real issue in this case in whether the Board of Supervisors of Henrico County, by virtue of Code, § 15.1-522, 1964 Repl.Vol., possesses the power to levy taxes and assessments as specified in Code, § 15.1-841, 1964 Repl.Vo., and thus have the power to enact a retail sales and use tax ordinance.

Code, § 15.1-522 reads as follows:

'Powers of boards of certain counties.--The board of supervisors of counties:

'(1) Adjoining and abutting any city, with or without this State, having a population of one hundred and twenty-five thousand or more,

'(2) Ajoining any county which adjoins and abuts any such city and has a density of population of five hundred or more to the square mile,

'(3) * * *

'(4) * * *

'Are hereby vested with the same powers and authority as the councils of cities and towns by virtue of the Constitution of the State of Virginia or the Acts of the General Assembly passed in pursuance thereof; * * * (Code 1950, § 15-10;1950p. 113;1958, c. 190;1962, c. 623).'

Code, § 15.1-841, in Chapter 18,Title 15.1, as amended, reads as follows:

'Texas and assessments.--A municipal corporation may raise annually by taxes and assessments on property, persons and other subjects of taxation, which are not prohibited by law, such sums of money as in the judgment of the municipal corporation are necessary to pay the debts, defray the expenses, accomplish the purposes and perform the functions of the municipal corporation, in such manner as the municipal corporation deems necessary or expedient.(Code 1950 (Suppl.), § 15-77.5;1958, c. 328;1962, c. 623).'

Henrico county has a population, according to the U. S. census of 1960, of 117,339 and a land area of 232 square miles.The population density of the county is in excess of 500 persons to the square mile.It adjoins the city of Richmond, which city has a population, according to the same census, of 219,958.As is the case with numerous other areas in Virginia, the population of the county has greatly increased during the past few years, and this increase has created many problems of an economic and public nature, including the need of additional revenue to defray administerial and governmental purposes.On March 17, 1965, the Board of Supervisors of Henrico County adopted an ordinance entitled 'The County of Henrico, Virginia, Retail Sales and Use Tax Ordinance.'In addition to imposing a privilege tax upon specified sales and uses, it imposed certain administerial duties upon A. Q. Corbett, Director of Finance of Henrico County, relating to the design and furnishing of certain forms required under the ordinance, which Corbett refused to perform on the ground 'that the County of Henrico is without legal authority to enact a sales and use tax at this time.'

The Board of Supervisors invoking the original jurisdiction of this Court, filed its petition against A. Q. Corbett, Director of Finance of Henrico County, praying for a writ of mandamus directing and compelling him to forthwith comply with the ministerial duties imposed upon him by the tax ordinance, and to pay, in his official capacity, an invoice rendered for the cost of printing forms required under the ordinance and authorized to be printed by a county purchase order.

Petitioner contends that Chapter 18 of Title 15.1, §§ 15.1-837 to 15.1-915, 1964 Repl.Vol. (Chapter 328, Acts 1958) is a general grant of power to all cities and towns to levy taxes in the manner specified by § 15.1-841, and that since the county of Henrico comes within the classification of counties listed in § 15.1-522, it is empowered to enact a retail sales and use tax ordinance.The respondent, Corbett, denies that there is any legislative authority granting such power to petitioner.He says (1) that § 15.1-522 confers on counties included in the classification therein enumerated only those powers that are conferred by general law on the councils of all cities and towns of the Commonwealth; and (2) that § 15.1-841 is not a general grant of power to all cities and towns to levy taxes and assessments, in that it only prescribes the manner and method by which that power may be obtained by them.

It is agreed between the parties that: (1) the General Assembly has the power to classify counties; (2) that § 15.1-522 of the Code is a valid exercise of the power of the General Assembly to classify counties and to confer upon them the same powers which it has conferred generally upon cities and towns.Gandy v. Elizabeth City County, 179 Va. 340, 19 S.E.2d 97;Bray v. County Board, 195 Va. 31, 77 S.E.2d 479;Kilgour v. County Board of Supervisors, 195 Va. 562, 79 S.E.2d 601;(3) that Henrico county comes within the provisions of subsections (1) and (2) of § 15.1-522;(4) that the General Assembly may confer such powers of local and special legislation upon counties, cities and towns as it may deem expedient.(§ 65, Constitution of Virginia); and (5) that the General Assembly has not segregated to the State the power to levy an excise tax.

We have been favored with strong briefs and able arguments by counsel for each of the parties.Petitioner says in its brief that 'It need not rely upon specific charter powers granted cities and towns by the General Assembly under the authority of Section 117 of the Constitution for the reason that the authority conferred by the General Assembly upon cities and towns by Chapter 328 of the Acts of 1958(Code, §§ 15.1-837 to 15.1-915, inclusive) is basically a general law enacted * * *, and conferring, inter alia, excise tax powers upon all cities and incorporated towns in Virginia.'

However, petitioner does not expressly concede that the powers conferred upon certain counties by § 15.1-522 are only those conferred upon all cities and towns by general law.It does say that, 'candor requires the statement that heretofore it has been the generally accepted view that the municipal powers conferred upon certain urban counties, by virtue of § 15.1-522,formerly § 15-10,Code 1950, were those of the general type and not those enjoyed by a municipality solely by virtue of its own unique charter.'

It seems to us that the foregoing concession is required by the very language of § 15.1-522, and the construction heretofore placed upon the section.The phrase in that section reading, 'the same powers and authority as the councils of cities and towns,'(Emphasis added) is plural and connotes or implies the inclusion of all cities and towns.It does not say 'as the council of any city or town,' or 'as the council of' a specifically named city or town, or cities and towns.

It is hardly probable that the General Assembly intended to vest the board of supervisors of counties within the coverage of § 15.1-522, such as Henrico county, or Charles City County, the latter of small population, with the same powers vested in the councils of the cities of Richmond and Norfolk, each with a population exceeding 200,000 persons, and each charged with a multiplicity of problems, ministerial, administrative, executive and governmental; nor with such special powers as were granted to the cities of Danville, Bristol and Alexandria, because of their peculiar location and the activities of their residents.The phrase, 'as the councils of cities and towns,' must mean such powers as are granted by general law to all of the councils of all cities and towns.

It is worthy of note that this is the judicial, administrative and legislative interpretation, which has been placed upon § 15-10 and its successor, § 15.1-522.

Smith v. Kelley, (1934)162 Va. 645, 174 S.E. 842, is not directly in point here; but it is informative.In that casethe court dealt with a proviso of § 2773(19), Code of 1930, giving a board of supervisors of a county adopting the county management form of government 'all the powers conferred by general law on city councils.'Arlington had adopted the county management plan, which plan provided that the circuit judge should fill any vacancies in the membership of the county board of supervisors.By general law, city councils were granted power to fill vacancies in their own membership.Two vacancies occurred on the county board and the circuit court promptly filled them.The county board also appointed two men to fill the same vacancies, contending that it had the power to do so by virtue of Code, § 2773(19).The nominees of the circuit court thereupon applied to this Court for a writ of mandamus against the nominees of the board, directing them to abstain from performing duties as members of the board.We held that the petitioners were entitled to the office, and the writ was issued.

In determining the issue, under the peculiar circumstances there arising, the Court pointed out that the 'peculiar and dragnet language' of § 2773(19) had never been construed as giving to boards of supervisors of the counties, to which the statute applied, the power to fill vacancies in their own membership, and that for many years throughout the State, vacancies in the governing boards of counties had been filled by circuit court judges under general law, that is, by the same method specifically granted in Arlington's form of government.

The Court further pointed out the fundamental distinctions between the governments of cities and towns and those of county organizations.Quoting from the authorities, it said:

"In determining the meaning of a statute, it will be presumed, in the absence of words therein, specifically indicating the contrary, that...