Brecken Bridge Co. v. School B'd.

• Decision Date: 18 November 1926
• Parties: BRECKEN BRIDGE, ETC. v. COUNTY SCHOOL BOARD.
• Court: Virginia Supreme Court

Page 1

146 Va. 1

BRECKEN BRIDGE, ETC. v. COUNTY SCHOOL BOARD.

Supreme Court of Virginia, Richmond.

November 18, 1926.

1. STATUTES — Emergency Clause — Section 53 of the Constitution of 1902 — Local, Special or Private Laws. — Section 53 of the Constitution of Virginia in regard to the taking effect of statutes in case of an emergency applies to local, special or private laws as well as to general laws.

2. STATUTES — Emergency Clause — Section 53 of the Constitution of 1902 — Statement of Ground of the Emergency. — Under section 53 of the Constitution of 1902, in regard to the time of taking effect of statutes in case of an emergency, the ground of the emergency need not be stated.

3. STATUTES — Act of 1926, Page 30, Authorizing County School Board of Botetourt County to Borrow Money and Issue its Bonds — Constitutionality. — Acts of 1926, page 30, authorized the county school board of Botetourt county to borrow money and issue bonds for school purposes. The act further provided that after the issuance of the bonds, the supervisors should levy a special tax on property subject to local school taxation to provide for interest and sinking fund. It was argued that this act was unconstitutional under section 63 of the Constitution of 1902, because it provided for the assessment and collecting of taxes by a local or private statute. This is a misapprehension of the character of the statute. It is not a revenue statute, but a bond issue statute. It makes no provision for the assessment and collection of taxes. It only provides upon what the supervisors may make a levy, and leaves the subject of the assessment and collection of the levy to the general law on the subject. The statute does not contravene the provision of section 63 of the Constitution of 1902.

4. TAXATION — Levy and Assessment Distinguished. — There is a marked difference between making a levy and the assessment of property for the purpose of taxation. A levy is merely fixing the subject and the amount at which property is to be taxed. An assessment consists in listing the property and putting a value thereon to which the rate fixed by the levy is to be applied. It is quasi judicial.

5. CONSTITUTIONAL LAW — Power of the Legislature — Constitution a Restraining Instrument — Restraints by Implication. — It is the settled law of the State that, outside of the powers ceded to the Federal government, the power of the General Assembly to enact statutes is without limit, except as restrained by the Constitution of the State. The Constitution of the State is a restraining instrument and not a grant of power. If there be any restraints by implication, the restraint must be so necessary and so plainly manifest as to require the implication in order to enforce the restraints expressly imposed.

6. CAPITATION TAX — Women — Constitution of 1902, Section 173. — If there is any restraint in section 173 of the Constitution of 1902, on the power of the legislature to put a capitation tax on women it must be by necessary implication as none is expressed. Women are not mentioned in the section. But the fact that women were not in mind at the time this section of the Constitution was adopted, imposed no restraint on the powers of the legislature, and there is nothing in the section that by necessary implication restrains the legislature from imposing such tax. The legislature had the power, independent of the Constitution, to put any tax it saw fit on men and women too, and the constitutional provision is important only so far as it acted as a restraint on that power.

7. STATUTES — Constitutionality — Valid in one Part and Invalid in Another — Case at Bar. — An act may be valid in one part and invalid in another and if the valid part is separable from the remainder the invalid part may be ignored, if after such elimination the remaining portions are sufficient to accomplish their purpose in accordance with the legislative intent. It is only where the void portion of an act is the inducement to the passage of the act, or is so interwoven in the texture of the act as to prevent the statute from becoming operative, that the whole statute is invalid. Thus an act providing among other things for a capitation tax on male and female inhabitants of a county to provide for interest and sinking fund for school bonds would not be totally invalid because the legislature had no power to impose a capitation tax on women.

8. TAXATION — Due Process of Law — Acts of 1926, Page 30, Authorizing Issuance of School Bonds by Botetourt County. — The Acts of 1926, page 30, authorizing the school board of Botetourt county to borrow money and issue bonds for school purposes and provide for interest and sinking funds did not deprive the citizens of Botetourt county of their property without due process of law. The assessment and collection of the tax was left to the general law, which makes ample provision for the correction of erroneous assessments.

9. STATUTES — Special Acts — Authority of the Legislature. — The legislature had power to pass a special act authorizing the supervisors of Botetourt county to borrow money and to issue bonds therefor for school purposes. Notwithstanding the same result might have been accomplished by a more dilatory process under a general law.

10. TAXATION — Due Process of Law. — Due process is not denied if the taxpayer is given the opportunity to question the validity or the amount of the tax, either before the amount is determined or in subsequent proceedings for its collection.

Appeal from a decree of the Circuit Court of Botetourt county. Decree for defendant. Complainants appeal.

The opinion states the case.

H. S. Reid, for the appellants.

Wm. R. Allen, Benjamin Haden, Leake & Buford, and Thos. L. Preston, for the appellee.

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

The sole question involved in this case is the constitutional validity of the statute quoted in the margin.^* It is assailed as in contravention of sections 53, 63 and 173 of the State Constitution, as well as the "due process" clauses of the Federal and State Constitutions. The sections enumerated are quoted in the margin.^**

1, 2 Objection is made to the statute under section 53 of the Constitution, because the ground of the emergency is not stated. It is argued that section 53 of the Constitution of Virginia only applies to "general laws" and not to local, special or private laws. The Constitution makes no such restriction. Section 53 applies to both alike. This section of the Constitution was fully considered and construed in City of Roanoke Elliott, 123 Va. 393, 96 S.E. 819, holding that the ground of the emergency need not be stated. No further discussion is necessary.

3, 4 Under section 63 of the Constitution, it is argued that the statute provides for the assessment and collecting of taxes, and that this cannot be done by a local or private statute. This is a misapprehension of the character of the statute. It is not a revenue statute, but a bond issue statute. It makes no provision for the assessment and collection of taxes. It only provides upon what the supervisors may make a levy, and leaves the subject of the assessment and collection of the levy to the general law on the subject. There is a marked difference between making a levy and the assessment of property for the purpose of taxation. A levy is merely fixing the subject and the amount at which property is to be taxed. An assessment consists in listing the property and putting a value thereon to which the rate fixed by the levy is to be applied. It is quasi judicial. The statute does not contravene the provision of section 63 of the Constitution. County of Sussex Jarrett, 129 Va. 672, 106 S.E. 384.

5, 6 It is the settled law of this State that, outside of the powers ceded to the Federal government, the power of the General Assembly to enact statutes is without limit, except as restrained by the Constitution of the State. The Constitution of the State is a restraining instrument, and not a grant of power. If there be any restraints by implication, the restraint must be so necessary and so plainly manifest as to require the implication in order to enforce the restraints expressly imposed. If, therefore, there is any restraint in section 173 of the Constitution on the power of the legislature to put a capitation tax on women, it must be by necessary implication, as none is expressed.

This section is mandatory in requiring a capitation tax of not exceeding $1.50 on men for State purposes. It is permissive in allowing a further tax on men for local purposes. It is restrictive in limiting the latter tax to $1.00. Except for the restrictive provision, the legislature might have authorized a tax for any amount for local purposes. Women are not mentioned in the section, doubtless for the reason that they did not have the elective franchise when the Constitution was proclaimed, and it was not then foreseen that they would thereafter have it. But there is no inhibition on the imposition of such a tax on women. The power of the legislature was left unrestrained in that respect, and when the voting power was conferred on them, there was no reason why the legislature should not impose a capitation tax on them. The fact that women were not in mind at the time did not per se impose any restraint on the powers of the legislature, and the exercise of that power is not inconsistent with nor repugnant to the restrictive provision as to men. Both can stand together. Whether or not a greater tax may be imposed upon women than upon men is not a...