Commonwealth v. Sanderson

• Decision Date: 10 March 1938
• Citation: 195 S.E. 516
• Court: Virginia Supreme Court
• Parties: COMMONWEALTH. v. SANDERSON.

195 S.E. 516

COMMONWEALTH.

v.SANDERSON.

Supreme Court of Appeals of Virginia.

March 10, 1938.

Appeal from Circuit Court of City of Richmond; Julien Gunn, Judge.

Proceeding by J. S. Sanderson against the Commonwealth of Virginia for a declaratory judgment to determine whether chauffeurs employed by the Commonwealth, its agencies or political subdivisions, must pay a license tax. From a decree for plaintiff, defendant appeals.

Reversed.

Argued before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

Abram P. Staples, Atty. Gen., and S. W. Shelton, Asst. Atty. Gen., for the Commonwealth.

James E. Cannon and J. Elliott Drinard, both of Richmond, for appellee.

HOLT, Justice.

Must chauffeurs or other employees of the Commonwealth, its agencies or political subdivisions, pay a license tax?

In House Bill 339, passed by the General Assembly and approved March 26, 1932, Acts 1932, c. 342, p. 613, we find "The Motor Vehicle Code of Virginia." That act undertakes to consolidate, simplify, and restate all relevant statutes. This is section 36 of that Code:

"Chauffeurs' license, how obtained; form of license.--Any person other than the owner of a motor vehicle or a member of his family, which has been registered and licensed to be operated in this State, whose principal duty or occupation requires him to drive a motor vehicle, and any person other than the owner, who drives a motor vehicle while in use as a public or common carrier of persons or property before he shall operate a motor vehicle in this State shall first take out a chauffeur's license, which shall expire on March thirty-first of each year. The applicant shall make application to the director which application shall give the name of the applicant, his residence, post office address, age and experience in operating motor vehicles, and shall be sworn to before some officer authorized to administer oaths. There shall be appended to such application a statement by two reputable citizens, that the applicant is a fit person and is competent to operate such vehicle.

"On the payment of five ($5.00) dollars, the director shall issue to such applicant a license and badge, which license and badge shall be carried by the chauffeur at all times while operating a motor vehicle, the badge to be plainly in evidence upon the lapel of the chauffeur's cap. The form of license shall be prescribed by the director.

"Provided that no charge shall be made for the issuance of a chauffeur's license to firemen, policemen or other officers or employees of the State, or any of its political subdivisions or agencies which may be nec-essary in connection with the operation of motor vehicles owned by the State, its political subdivisions or agencies."

House Bill 103 was enacted at the same session of the General Assembly and was approved March 29, 1932, Acts 1932, c. 385, p. 775. It deals specifically with the licenses of chauffeurs and the penalties to be assessed against them for negligent operations. Subdivision (b) of section 10 in part reads:

"On and after the first day of July, nineteen hundred and thirty-three, no other person, except those expressly exempted as hereinbefore provided for, shall drive any motor vehicle on any highway in this State unless and until such person shall have satisfactorily passed the examination required by subsection (a) of this section and obtained either an operator's or a chauffeur's license, which shall be issued upon the payment of a fee of fifty (50) cents for each operator's license and a fee of two ($2.00) dollars for each chauffeur's license; and all such licenses so issued from the first day of July, nineteen hundred and thirty-three, until the thirtieth day of June, nineteen hundred and thirty-four, shall expire by their own limitation, on the last mentioned date; provided, that any chauffeur's license so issued within said period, shall upon the payment of a fee of five ($5.00) dollars, be issued to expire on the thirtieth day of June, nineteen hundred and thirty-six."

Neither of these acts contains an emergency clause. The act of March 26, 1932, declares that "all acts and parts of acts in conflict with this act are hereby repealed." Section 123, Acts 1932, c. 342, p. 674. The act of March 29, 1932, provides that "all acts or parts of acts inconsistent with the provisions of this act are hereby repealed." Acts 1932, c. 385, p. 785, § 35. Both of them took effect ninety days after the adjournment of that session of the legislature, Constitution of Virginia, § 53.

On February 17, 1936, the General Assembly amended and re-enacted section 10 of the act of March 29, 1932, Acts 1936, c. 22, pp. 36, 37. It left the provisions as to the payment of fees for chauffeurs' licenses untouched, amending it in other particulars, which have no bearing upon the issue presented here.

On December 23, 1936, the city attorney for the city of Richmond advised that municipality that in his opinion the Commonwealth had no authority to require the payment of this license fee by its employees. Thereupon the city assumed the obligation of paying this fee, if required by law, and instructed him to have the question adjudicated. Thereupon this proceeding for a declaratory judgment was instituted. It came on in due course to be heard. The trial court was of opinion that this fee should not be charged against the city's chauffeurs and so decreed. Hence this appeal.

It thus appears that for four years the officers charged with the enforcement of these statutes had been of opinion that such fees should be charged and had assessed and collected them.

In South East Public Service Corporation v. Commonwealth, 165 Va. 116, 181 S.E. 448, 452, Mr. Justice Eggleston quotes with approval this statement of the law from Smith v. Bryan, 100 Va. 199, 40 S.E. 652, applicable in such cases:

"So also, the practical construction given to a statute by public officials, and acted upon by the people, is not only to be considered, but in cases of doubt will be regarded as decisive. It is allowed the same effect as a course of judicial decision. The legislature is presumed to be cognizant of such construction, and, when long continued, in the absence of legislation evincing a dissent, the courts will adopt that construction."

A host of cases have been cited to the effect that statutes in pari materia, but apparently in conflict, should be construed together, and that any apparent inconsistencies should be ironed out whenever that is possible. A late restatement of this rule appears in Scott v. Lichford, 164 Va. 419, 180 S.E. 393. It attains added weight when such statutes are passed at the same session of the legislature and is well expressed in Mitchell v. Witt, 98 Va. 459, 36 S.E. 528:

"Statutes which are not inconsistent with one another, and which relate to the same subject-matter, are in pari materia, and should be construed together, and effect be given to them all, although they contain no reference to one another, and were passed at different times. Especially should effect be given, if possible, to statutes in pari materia enacted at the same session of the Legislature."

All of this appellant properly concedes to be good law. Moreover, the intention of the Legislature is to be followed whenever possible. Jones et al. v. Rhea, 130 Va. 345, 107 S.E. 814.

But as was said by Keith, P., in Saville v. Virginia Ry. & P. Co., 114 Va. 444, 76 S.E. 954, 957:

"It is contended that the construction insisted upon by the plaintiff in error is violative of the spirit or reason of the...