City Council of City of Emporia v. Newsome, 811058

• Decision Date: 20 January 1984
• Docket Number: No. 811058,811058
• Citation: 311 S.E.2d 761,226 Va. 518
• Parties: CITY COUNCIL OF the CITY OF EMPORIA v. Jean NEWSOME, et al. 1 Record
• Court: Virginia Supreme Court

Page 761

311 S.E.2d 761

226 Va. 518

CITY COUNCIL OF the CITY OF EMPORIA v. Jean NEWSOME, et al. ¹

Record No. 811058.

Supreme Court of Virginia.

Jan. 20, 1984.

John F. Kay, Jr., Richmond (Theodore J. Burr, Jr., City Atty., Henry T. Wickham, Carter Glass, IV, David G. Shuford, Mays, Valentine, Davenport & Moore, Richmond, on briefs), for appellant.

Robert C. Fitzgerald, Fairfax (Russell O. Slayton, Jr., County Atty., Myron C. Smith, Fitzgerald & Smith, Fairfax, on brief), for appellees.

Before CARRICO, C.J., and COCHRAN, POFF, COMPTON, STEPHENSON and RUSSELL, JJ.

COCHRAN, Justice.

In this appeal, City Council of the City of Emporia (Council) challenges consolidation proceedings initiated under the provisions of Code § 15.1-1132 (Cum.Supp.1980). ² Pursuant to that statute, the required number of qualified voters in the City of Emporia and Greensville County filed petitions asking their respective governing bodies to perfect an agreement consolidating the City and the County and to petition the judge of the circuit court for a referendum on the question. Copies of the petitions were filed with the judge in July 1978.

The governing bodies failed to reach agreement within the prescribed period of one year, and the petitioning voters moved the trial court to appoint committees to act for and in lieu of the governing bodies. The Board of Supervisors (Board) moved to intervene as a party in support of the proceedings. Council filed an answer and request to intervene in which it stated its conclusion that consolidation was not in the best interests of the citizens of Emporia. Council also moved to dismiss the proceedings on the ground that the statute "constitutes an unlawful delegation of legislative authority ... in violation of ... the Virginia Constitution."

By order entered April 1, 1981, the trial court granted the motions to intervene, denied Council's motion to dismiss, and appointed five-member committees, as authorized by statute, to "perfect the consolidation agreement, and report same to [the] Court, no later than September 1st, 1981." The order incorporated by reference a "Charge to the Citizens Committee on Consolidation" defining the committees' duties, powers, and authority. Included in the Charge was an instruction that the committees consider for inclusion in the agreement provisions set forth in Code § 15.1-1135. ³

On appeal, Council contends, as it did in the trial court, that the appointment of a committee of citizens to act for and in lieu of Council was an unconstitutional delegation of legislative authority. The proposed consolidation agreement, Council says, may include in optional provisions the power to set a lower tax rate in certain areas of the consolidated city or county and to levy a special tax on real property in certain areas. Therefore, the argument continues, the enabling statute violates the provisions of Article VII, Section 5 of the Virginia Constitution, requiring that local governing bodies be elected by the qualified voters, as well as the holding of Wright v. Norfolk Elec. Bd., 223 Va. 149, 286 S.E.2d 227 (1982), decided after judgment was entered below, that the power of assessment and taxation is beyond the reach of initiative statutes. We disagree with both contentions.

The General Assembly has demonstrated an increasing interest in facilitating the consolidation of political subdivisions either with or without the approval of local governing bodies. In 1940, an enabling statute was enacted which was severely limited in its applicability. Acts 1940, c. 395. The 1940 Act established the format for effecting the authorized consolidation. In addition to providing for the initiation of proceedings by the local governing bodies, it authorized qualified voters in each jurisdiction to force action on consolidation by petitioning the proper court to appoint a five-member citizen committee "to act for and in lieu of" the governing body "in perfecting the said consolidation agreement and in petitioning for a referendum."

In 1948, the statute was amended to include mandatory provisions now found in Code § 15.1-1133, and optional provisions now found in Code § 15.1-1135, subsections (1) through (8). Acts 1948, c. 354. In 1962, in a major revision of the laws pertaining to the government of counties, cities, and towns, the provisions for consolidation were made applicable generally to all political subdivisions. Acts 1962, c. 623, p. 1203. The provisions permitting qualified voters to initiate the proceedings when their local governing body fails to act have been retained in substantially the same language that was used in the 1940 Act. The statute has continuously encouraged voluntary action by the local governing bodies, however, by authorizing them to appoint and compensate citizen advisory committees to assist in the preparation of consolidation agreements. See Code § 15.1-1131.

Every law enacted by the General Assembly carries a strong presumption of validity. Unless a statute clearly violates a provision of the United States or Virginia Constitutions, we will not invalidate it. See Henrico County v. City of Richmond, 106 Va. 282, 292, 55 S.E. 683, 686-87 (1906), where we upheld an annexation statute that was challenged as an unconstitutional delegation of legislative authority to the annexation court. See also Bull v. Read, 54 Va. (13 Gratt.) 78 (1855), where we rejected the claim that a legislative act conditioned upon voter approval in a referendum was an unconstitutional delegation of legislative authority to the voters.

The obvious purpose of the consolidation statute is to foster and promote the consolidation of political subdivisions, preferably by action of the respective governing bodies. Recognizing, however, that a decision by the electorate on consolidation may be unduly delayed by a governing body unwilling or unable to act, the General Assembly provided for proceedings to be initiated by interested citizens.

In requiring the local judge to appoint a citizen committee to act in "perfecting the consolidation agreement and in petitioning for a referendum," the statute is not an unconstitutional delegation of legislative authority to the committee. The committee's function is to draft an agreement, just as the function of an advisory committee appointed by one of the governing bodies is to assist in drafting an agreement. In drafting the agreement to be submitted to the voters, the committee is required to include certain provisions set forth in § 15.1-1133, and is authorized to include any or all the optional provisions set forth in § 15.1-1135. Regardless of the provisions included, however, the agreement does not levy taxes or make assessments. It may contain tax-related proposals for submission to a referendum, but it is not a tax ordinance. In this respect, it is distinguishable from Wright.

In Wright, a committee of private citizens, proceeding under the initiative and referendum provisions of the charter of the City of Norfolk, drafted an ordinance setting the real estate tax rate in that city and petitioned the court to order a referendum. The circuit court ruled that the charter provisions were unconstitutional and dismissed the petition. On appeal, we affirmed this ruling. We held that as only the local governing body under Article VII Section 7 of the Virginia Constitution may pass an ordinance levying taxes, this function could not constitutionally be delegated to private citizens. We invalidated the charter provisions as applied in that case.

In the present case, the committees are not drafting a tax ordinance; they are merely drafting a proposed contract. If and when the voters approve the agreement, the governing bodies will...