Com. v. Rivera

• Decision Date: 29 March 1994
• Docket Number: No. 2184-92-4,2184-92-4
• Citation: 442 S.E.2d 410,18 Va.App. 103
• Parties: COMMONWEALTH of Virginia v. Ferdinand RIVERA. Record
• Court: Virginia Court of Appeals

Page 410

442 S.E.2d 410

18 Va.App. 103

COMMONWEALTH of Virginia v. Ferdinand RIVERA.

Record No. 2184-92-4.

Court of Appeals of Virginia.

March 29, 1994.

[18 Va.App. 104] Kathleen B. Martin, Asst. Atty. Gen. (Stephen D. Rosenthal, Atty. Gen., on briefs), for appellant.

Corinne J. Magee, Fairfax, for appellee.

Present: BENTON, ELDER and FITZPATRICK, JJ.

FITZPATRICK, Judge.

The Commonwealth appeals a decision of the Circuit Court of Fairfax County dismissing an information against Ferdinand Rivera adjudicating him an habitual offender. Code §§ 46.2-351 to -363. The trial court held that a June 9, 1987 amendment to the Fairfax City Code was invalid, because it was a prospective adoption of future legislative amendments. For the reasons set forth below, we conclude that the Fairfax City ordinance at issue in this case was not unconstitutional because no improper delegation of authority actually occurred. Accordingly, we reverse the judgment.

The facts in this case are not in dispute. On June 29, 1992, the Commonwealth initiated habitual offender proceedings against Rivera. He was properly served on August 28, 1992, and a hearing was held October 1, 1992. The Commonwealth presented a certified abstract of Rivera's traffic convictions which was admitted into evidence without objection. The abstract listed four predicate offenses: driving while intoxicated in violation of Code § 18.2-266 on January 16, 1987 and April 9, 1991 respectively; and two additional convictions on September 17, 1987, one for driving while intoxicated and one for driving under revocation or suspension, both in violation of Fairfax City Code § 13-1. The offense date for the Fairfax City offenses was July 4, 1987.

Rivera successfully argued to the trial court that the two Fairfax City convictions could not be used as predicate offenses because, on June 9, 1987, the Fairfax City Council adopted Ordinance 1987-11, which incorporated by reference amendments to Title 46.1 and Article 2, Chapter 7 of Title 18.2 of the Code of Virginia as in force and effect on July 1, 1987. The trial court, in dismissing the information, held that the City's 1987 ordinance was invalid because it constituted an improper prospective adoption of future amendments. ¹

The Commonwealth argues that the actions taken by the Fairfax City Council on June 9, 1987 were appropriately delegated legislative actions because Code § 46.1-188 (now § 46.2-1313) authorized local governing bodies to enact ordinances which incorporated by reference appropriate provisions of Title 46.2 and Article 2 of Chapter 7 of Title 18.2 of the Code of Virginia and set no time limitation on their ability to do so. The Commonwealth contends that pursuant to this statutory grant of authority, the Fairfax City Council enacted the incorporating ordinance on June 9, 1987, which was to become effective July 1, 1987.

In addition, the Commonwealth relies on Burks v. Commonwealth, 126 Va. 763, 101 S.E. 230 (1919), for the proposition that a local governing body may adopt prospective legislative amendments. In Burks, the Supreme Court upheld the ratification of a state law by a county board of supervisors seventeen days before the statute took effect. Although noting that "until the time arrives for a statute to take effect, all acts purporting to have been done under it are null and void," id. at 767, 101 S.E. at 231, the Court went [W]e are unable to give our assent to the contention that the first action of the board of supervisors was void. There is nothing in the act to indicate any intention on the part of the legislature to require the board to wait until the law would inevitably become effective before signifying approval of its terms, and we perceive no reason or principle which would require such a course.... [T]he more promptly the board acted the better opportunity the public would have to respect its terms. This view seems reasonable and just.

further in addressing a conviction after the effective date.

Id. at 767-68, 101 S.E. at 231-32.

In 1993, the General Assembly specifically codified this position in Code § 46.2-1313 and declared it to be a clarification of existing law. Code § 46.2-1313 (which replaces former Code § 46.1-188), provides:

Ordinances enacted by local authorities pursuant to this article may incorporate appropriate provisions of this title, of Article 9 ( § 16.1-278 et seq.) of Chapter 11 of Title 16.1, and of Article 2 ( § 18.2-266 et seq.) of Chapter 7 of Title 18.2 into such ordinance by reference. Nothing contained in this title shall require the reenactment of ordinances heretofore validly adopted. Local authorities may enact ordinances incorporating by reference the appropriate provisions of state law before the effective date of such state law provided such state law has been adopted by the General Assembly and signed by the Governor, and provided further that such local ordinance shall become effective on the same date as the effective date of the state law. The provisions of this section are declaratory of existing law.

Article VII, Section 2 of the Constitution of Virginia limits the powers of local governments to exercise only those powers that the General Assembly may provide by general law or special act. Dillon's Rule provides that "the powers of [the Fairfax City Council] are fixed by statute and are limited to those conferred expressly or by necessary implication." Bd. of Supervisors v. Horne, 216 Va. 113, 117, 215 S.E.2d 453, 455 (1975). Any ordinance not passed in accord with these principles is void and unconstitutional. See Commonwealth v. Knott, 11 Va.App. 44, 396 S.E.2d 148 (1990); Commonwealth v. Holtz, 12 Va.App. 1151, 408 S.E.2d 561 (1991) (holding that an habitual offender certification cannot be predicated upon a conviction under an invalid ordinance).

Code § 15.1-132 specifically authorizes "[t]he governing bodies of cities ... [to] make ordinances prohibiting the driving of motor vehicles ... while under the influence of alcohol." Code § 46.1-188, as in effect on June 9, 1987, provided:

Ordinances enacted on and after July 1, 1968, by local authorities pursuant to this article may incorporate appropriate provisions of this title and of Article 2 ( § 18.2-266 et seq.) of Chapter 7 of Title 18.2 into such ordinance by reference. Nothing contained in this title shall be construed to require the reenactment of ordinances heretofore validly adopted.

Code §§ 15.1-132 and 46.1-188 expressly allow local authorities to enact ordinances prohibiting the driving of a motor vehicle while under the influence of alcohol and the incorporation by reference of appropriate provisions of state law into such local ordinances. The Code is silent, however, as to when and how the local governing body may incorporate these provisions of state law into their ordinances. For example, former Code § 46.1-188 did not specify whether incorporation by reference could be done before the actual effective date of the state law. Therefore, this case requires us to determine whether the City had the authority to act as it did.

"[T]he Dillon Rule is applicable to determine in the first instance, from express words or by implication, whether a power exists at all. If the power cannot be found, the inquiry is at an end." Commonwealth v. Arlington County Bd., 217 Va. 558, 575, 232 S.E.2d 30, 41 (1977). Dillon's Rule was first recognized in City of Winchester v. Redmond, 93 Va. 711, 25 S.E. 1001 (1896), a decision in which the Supreme Court quoted with approval from 1 John F. Dillon Commentaries * 413 on the Law of Mun. Corp. § 89 (3d ed. 1881), as follows:

[A] municipal corporation possesses and can exercise the following powers, and no others: First, those granted in express words; Second, those necessarily or fairly implied in or incident to the powers expressly granted; Third, those essential to the declared objects and purposes of the corporation, not simply convenient, but indispensable. Any fair, reasonable doubt concerning the existence of power is resolved by the courts against the corporation, and the power is denied.

Id. at 714, 25 S.E. at 1002; accord County Board v. Brown, 229 Va. 341, 344, 329 S.E.2d 468, 470 (1985). Further, "[a]n ordinance may by appropriate language adopt by reference the provisions of existing statutes." 5 Eugene McQuillen Municipal Corporations § 16.12 (1981) (emphasis added); see also Rollins v. Town of Gordonsville, 216 Va. 25, 215 S.E.2d 637 (1975); Code § 46.1-188. Applying this standard to the case at bar, we conclude that the Fairfax City Council had the power and authority to enact ordinances incorporating by reference appropriate provisions of existing state law that had already been enacted by the legislature and signed by the Governor.

"In assessing the constitutionality of a statute or ordinance, courts must presume that the legislative action is valid. Consequently, the burden is on the challenger to demonstrate the constitutional defect." Coleman v. City of Richmond, 5 Va.App. 459, 462, 364 S.E.2d 239, 241 (1988) (citations omitted). The trial court held that the 1987 ordinance was "an improper, prospective adoption by reference of amendments by the General Assembly to the Virginia State Code which had yet to become effective when adopted by Fairfax City." As previously stated, Fairfax City was authorized to incorporate by reference existing statutes that had yet to become effective. Code § 46.1-188. In our view, the only potential defect with Fairfax City's June 9, 1987 enactment of Ordinance 1987-11 is that it permitted the possibility that during the twenty-two days between the ordinance enactment date and the effective date of both the ordinance and state statutes, a possible post-enactment amendment to the Code of Virginia could occur. In such a case, the earlier incorporation would be ineffective. Here, however, there was no post-enactment amendment to the Code of Virginia.

"[A]s a state court, we may...