Bray v. County Bd. of Arlington County

• Decision Date: 10 September 1953
• Citation: 77 S.E.2d 479,195 Va. 31
• Parties: MILES SPENCE BRAY v. THE COUNTY BOARD OF ARLINGTON COUNTY, VIRGINIA, AND ANOTHER. MILES SPENCE BRAY v. COMMONWEALTH OF VIRGINIA
• Court: Virginia Supreme Court

Page 479

77 S.E.2d 479

195 Va. 31

MILES SPENCE BRAY v.THE COUNTY BOARD OF ARLINGTON COUNTY, VIRGINIA, AND ANOTHER.

MILES SPENCE BRAY v.COMMONWEALTH OF VIRGINIA.

Supreme Court of Appeals of Virginia

September 10, 1953.

John Locke Green and Miles Spence Bray, for plaintiff in error, Miles Spence Bray.

William J. Hassan and Peter J. Kostik, for defendants in error, County Board of Arlington County.

William J. Hassan and Peter J. Kostik, for defendant in error, the Commonwealth.

JUDGE: BUCHANAN

BUCHANAN, J., delivered the opinion of the court.

These two cases involve similar constitutional questions, were heard together and will be disposed of by one opinion.

No. 4087 is a motion for a declaratory judgment, Code section 8-578, alleging that the Arlington Business Privilege License Ordinance adopted by the County Board of Arlington County on February 2, 1949, is invalid because (1) it does not show what statute is relied on as authority for its adoption, and (2) it is a local and special tax prohibited by section 63(5) of the Constitution of Virginia.

The ordinance provides that every person who engages in the practice of law, or in a long list of other professions and occupations, shall pay for the privilege an annual license tax graduated according to his gross receipts.Cf.Langston v. City of Danville, 189 Va. 603, 54 S.E. (2d) 101.

The motion alleged that the plaintiff, Miles Spence Bray, an attorney at law, was assessed under this ordinance with a license tax of $10, which he refused to pay, on the grounds stated, thereby becoming subject to the penalties provided by the ordinance if the same is enforced.Therefore he prayed that the ordinance be adjudged to be unconstitutional and invalid.

The defendants, the present appellees, filed an answer denying that the ordinance was unconstitutional and invalid, whereupon the plaintiff moved for a summary judgment.Rule 3:20.All matters of law and fact were submitted to the court for determination.The court held that the ordinance had been validly adopted by the Board, under the authority of section 58-266.2 of the Code as amended; that the population classification in said section was reasonable and did not constitute a local or special law for the assessment or collection of taxes, prohibited by section 63(5) of the Constitution, and did not violate section 64 of the Constitution.The plaintiff assigns as error the holding that section 58-266.2 is constitutional, 'in so far as it relates to density of population as applied to Arlington county.'

Section 58-266.2 of the Code, amended by Acts 1950, chapter 119, page 155, provides that the governing body of any county having a population of more than 2,000 per square mile, according to the last preceding United States census, and of any county having an area of less than sixty square miles, is authorized to assess and collect county license taxes on businesses, professions, etc., whether any license tax be imposed thereon by the State or not, except that no county license tax shall be levied in any case in which the levying of a local license tax is prohibited by any general law, or upon the right to operate a radio or television station or service.

We do not find it necessary to pass upon the constitutional validity of that section because the ordinance in question was legal and valid at the time of the assessment of which the plaintiff complains, under another section of the Code which was before this court in Gandy v. Elizabeth City County(1942)179 Va. 340, 19 S.E. (2d) 97, and there held to be constitutional so far as its provisions here pertinent are concerned.

Under consideration in that case was an ordinance of the Board of Supervisors of Elizabeth City county imposing a business license tax, enacted in December, 1939.At that time chapter 69 of Acts 1932, page 60, as amended bychapter 55 of Acts 1938, page 107, was in effect, giving to the boards of supervisors of counties: -- (1) adjoining and abutting any city, within or without this State, having a population of 125,000 or more; (2) adjoining any county which adjoins and abuts any such city and has a density of population of 500 or more to the square mile; or (3) having a density of population of 475 or more to the square mile, -- the same powers and authority as then or thereafter vested in the councils of cities and towns by virtue of the Constitution of Virginia or the Acts of the General Assembly then or thereafter passed in pursuance thereof; with other provisions not necessary now to recite.It was held:

'This act applies not only to Elizabeth City county but to all other counties which measure up to its requirements.It is a general law and must be read in connection with other cognate general statutes. * * *.'179 Va. at p. 345, 19 S.E. (2d) at p. 99.¹

The 1932 and 1938 acts provided that all laws enacted by the boards of supervisors under authority thereof must be approved by the judge of the circuit court of the respective counties, after hearing evidence showing the necessity therefor.The Gandy case held that that provision rendered the statute unconstitutional as delegating legislative power to the judge.By Acts 1942, chapter 389, page 624, that provision was eliminated from the statute.By Acts 1946, chapter 46, page 66, the statute was made to apply also to counties having within their boundaries a United States Marine Corps Base; and, lastly, it was amended by Acts 1950, chapter 100, page 113, which carried an emergency clause and was approved March 4, 1950.

The original 1932 act as changed by these various amendments is now section 15-10 of the 1950 Code(1952 Cum. Supp.).The concluding paragraph thereof, added by the emergency act of March 4, 1950, supra, provides:

'All laws or ordinances heretofore enacted by the board of supervisors under authority of this section shall be deemed to have been validly enacted, unless some provision of the Constitution of Virginia or the Constitution of the United States has been violated in such enactment.'

Section 65 of the Constitution provides:

'The General Assembly may, by general laws, confer upon the boards of supervisors of counties, and the councils of cities and towns, such powers of local and special legislation as it may, from time to time, deem expedient, not inconsistent with the limitations contained in this Constitution.'

Chapter 7 of Title 58 of the Code provides for State revenue licenses on business, professions and other occupations, including, in section 58-371 in that chapter, attorneys at law.Section 58-266.1 in that chapter (amended by Acts 1950, chapter 119, page 155, not here material) provides that in addition to the State tax on any license 'as hereinbefore and hereafter provided for in this chapter,' the council of a city or town may, when anything for which a license is so required to be done therein, impose a tax for the privilege of doing the same and require a license to be obtained therefor.

Section 15-10 of the Code, as we have seen, confers upon boards of supervisors of certain counties the same powers and authority as are given to the councils of cities and towns.²Sub-section 3 therof gives this power and authority to counties with a population of 475 or more per square mile.That includes Arlington county, which has a population of more than 5,600 per square mile.It also included Elizabeth City county and Warwick county before they became cities.It includes all other counties which measure up to its requirements.

'A law is general though it may immediately affect a small number of persons, places or things, provided, under named conditions and circumstances, it operates alike on all who measure up to its requirements.'Gandy v. Elizabeth City County, supra, 179 Va. at p. 344, 19 S.E. (2d) at p. 99.

In Ex parte Settle, 114 Va. 715, 77 S.E. 496, the act under review provided that in all counties having a population greater than 300 per square mile the judge of the circuit court should appoint a trial justice.It was attacked on the ground that it was special legislation, applying only to the county of Alexandria.It was held that that fact did not render the act unconstitutional, because it represented a reasonable and not an arbitrary classification, in that the county of Alexandria was faced with conditions not unlike those within a city, and its needs were quite different from those of a sparsely settled community.

'A law is 'special' in a constitutional sense when by force of an inherent limitation it arbitrarily separates some persons, places or things from those upon which, but for such separation, it would operate.''The test of a special law is the appropriateness of its provisions to the objects that it excludes.It is not, therefore, what a law includes that makes it special, but what it excludes.If nothing be excluded that should be contained, the law is general.'These definitions taken from Budd v. Hancock,66 N.J. Law 133, 48 A. 1023, were approved in Martin's Ex'rs v. Commonwealth, 126 Va. 603, 610, 612, 102 S.E. 77, 79, 80, and have served as a guide in many subsequent cases.Quesinberry v. Hull, 159 Va. 270, 165 S.E. 382;Newport News v. Elizabeth City County, 189 Va. 825, 55 S.E. (2d) 56;Joyner v. Centre Motor Co., 192 Va. 627, 66 S.E. (2d) 469;County Board of Supervisors v. American Trailer Co., 193 Va 72, 68 S.E. (2d) 115;Green v. County Board, 193 Va. 284, 68 S.E. (2d) 516.

The necessity for and the reasonableness of a classification are primarily questions for the legislature.If any state of facts can be reasonably conceived to sustain it, that state of facts at the time the law was enacted must be assumed.Martin's Ex'rs v. Commonwealth, supra, 126 Va. at pp. 612-13, 102 S.E. at p. 80;Joy et al. v. Green, 194 Va. 1003, 1009, 76 S.E. (2d) 178, 182.

It is not too difficult to discover a reasonable basis for classifying counties having a population of 475 or more per square mile as a group...