County Bd. of Sup'rs of Fairfax County v. American Trailer Co.

• Decision Date: 03 December 1951
• Docket Number: No. 3818,3818
• Citation: 193 Va. 72,68 S.E.2d 115
• Court: Virginia Supreme Court
• Parties: COUNTY BOARD OF SUPERVISORS OF FAIRFAX COUNTY, ET. AL. v. AMERICAN TRAILER COMPANY, INC. Record

Page 115

68 S.E.2d 115

193 Va. 72

COUNTY BOARD OF SUPERVISORS OF FAIRFAX COUNTY, ET. AL. v. AMERICAN TRAILER COMPANY, INC.

Record No. 3818.

Supreme Court of Appeals of Virginia

December 3, 1951.

Hugh B. Marsh and James Keith, for the plaintiffs in error.

Chadwick & Garnett, for the defendant in error.

JUDGE: BUCHANAN

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

This is an appeal from a declaratory judgment, Code, § 8-578, holding invalid the Trailer Park Ordinance of Fairfax county.

The ordinance, as adopted in 1943 and amended in 1944, recites that it was enacted pursuant to the provisions of chapters 256 and 443 of the Acts of 1942. It provided that the operator of a trailer camp should first obtain a certificate from the County Health Department, to be issued only after compliance with detailed requirements with respect to location, water supply, sewage disposal and other regulations; and should also obtain a permit from the board of supervisors, to be issued upon proof that the applicant was a proper person and had complied with all regulations and restrictions 'set up in any County ordinance affecting the same.' Each day's violation of the ordinance was made a misdemeanor, punishable by fine.

The ordinance defined a trailer park or camp as being a tract of land on which is located one or more trailers for use as living quarters, and a trailer lot as being a unit of land used or intended to be used by one trailer, and to have a minimum width of 30 feet and a minimum depth of 50 feet.

Section 5 imposed a license tax of $25 a year to cover from one to eight trailer lots, and $5 a lot for two-thirds of the number of lots over eight. The Trailer Company, appellee, obtained licenses and paid this tax for 1947 and 1948.

By amendments in 1948 to section 5, effective January 1, 1949, there was imposed a license tax of $50 per year per trailer lot, used or intended to be used as such.

The Trailer Company owns and operates two trailer parks in Fairfax county, one called Temple Trailer Village, containing 322 trailer lots, and the other called Oak Grove Trailer Court, containing 55 lots. For 1949 the license tax assessed against Temple under amended section 5 was $16,100 and against Oak Grove $2,750. The company refused to pay this license tax on the ground that the ordinance was invalid.

The court below sustained this contention, holding that the amendments to section 5 of the ordinance were not authorized by chapter 256, and that chapter 443 was unconstitutional. This appeal by the Board challenges the validity of these holdings.

The Board contends that chapter 256, Acts 1942, page 378, as amended by chapter 308, Acts 1946, page 518, authorized an ordinance to raise revenue as well as to regulate trailer champs. It concedes that if the acts authorized only a regulatory ordinance, the amount of the tax must have a reasonable relation to the cost of enforcing it. Charlottesville v. Marks' Shows, 179 Va. 321, 329, 18 S.E. (2d) 890, 895. The Trailer Company insists, and the court below held, that it was regulatory only and that the license tax bore no relation to the cost of enforcement.

Chapter 256, as enacted in 1942, in section 1 authorized the board of supervisors in any county in the State to adopt appropriate ordinances requiring a license to be obtained by and imposing a license tax upon the operator of a trailer camp, prescribing the conditions under which the license might be obtained, its duration, and the tax to be paid therefor, the amount of which could be based upon the maximum number of trailers to be accommodated at any one time, and providing penalties for violations. Section 2 defined a trailer and a trailer camp.

Chapter 308, Acts 1946, page 518, in effect when the ordinance was amended in 1948, was entitled 'An ACT to amend and reenact Section 1 of Chapter 256 of the Acts of Assembly of 1942, approved March 18, 1942, the section and chapter authorizing the governing bodies of counties to regulate trailer camps and provide penalties for violations.' By the amendment the board of supervisors of any county was authorized 'as herein defined to regulate by ordinances' the location and operation of trailer camps. It was provided that such ordinances may require a license to be obtained and impose a license tax, prescribe the period for which the license shall run, with lower charges for portions of a year and may prescribe the tax to be paid, which 'may be based upon the maximum number of trailers which are permitted by such license to be parked or placed or accommodated at such camp at any one time.' As a condition to the issuance of the license and operation of the camp, the board may prescribe the location, the size of the lots, the water supply, sewerage and garbage disposal facilities to be maintained, not in conflict with the regulations of the State Board of Health; and may prescribe safety measures for the heating facilities and other measures reasonably necessary 'to protect the health, safety, and welfare of the people of the county and the occupants of such trailer camps.' Violations were made a misdemeanor, punishable by fine.

Clearly we think this was only a regulatory act and authorized only a regulatory ordinance. The title of the act, as noted, states its purpose. The body of the act emphasizes that its purpose is to authorize ordinances 'to regulate' the location and operation of trailer camps, 'to protect the health, safety, and welfare' of the public. The tax permitted is a tax upon the license so authorized. There is nothing in the title or in the body of the act to suggest that a revenue measure was intended. The object of an act is required to be expressed in its title. Constitution of Virginia, § 52. The object expressed in this title is regulation and the body of the act repeats that its purpose is regulation. What is authorized by an act should be germane to the object expressed in its title. Commonwealth v. Dodson, 176 Va. 281, 305, 11 S.E. (2d) 120, 131, and cases cited. It is wholly inconsistent with the language of the title and of the act itself to say that in addition to its expressed object to regulate, it was intended also to provide a revenue measure for general county purposes.

Robinson v. Norfolk, 108 Va. 14, 60 S.E. 762, 128 Am.St.Rep. 934, 15 L.R.A. (N.S.) 294, involved the right of the city to collect a license tax from a circus exhibiting outside but within one mile of the city limits, as provided by a section of its general tax ordinance. The right was denied on the ground that the tax was levied not in the exercise of police power but for the purpose of raising revenue and the city could not impose the tax on property outside of its limits. The opinion quotes from North Hudson County Ry. Co. v. Hoboken, 41 N.J.L. 71: 'The distinction between the power to license as a police regulation and the same power as a revenue measure, is of the utmost importance. If granted with a view to revenue, the amount of the tax, if not limited by the charter, is in the discretion of the authorities; if given as a police power it must be exercised as a means of regulation only, and cannot be used as a source of revenue.' 108 Va. at p. 14, 60 S.E. at p. 764.

In Charlottesvllle v. Marks' Shows, supra, the city levied against a show exhibiting outside of its limits a license of $50 a day, which the ordinance recited was for the purpose of affording police protection. It was held that while a municipality might be authorized by the legislature to exercise its licensing power for police purposes for a reasonable distance outside of its limits, this ordinance in spite of its stated purpose was a revenue measure which the city could not enforce. Principles for determining whether an exaction is a revenue tax or a regulatory license under the police power are stated, including this: 'If revenue is the primary purpose and regulation is merely incidental, the imposition is a tax. If regulation is the primary purpose the mere fact that incidentally a revenue is also obtained does not make the imposition a tax.' 179 Va. at p. 329, 18 S.E. (2d) 894. See also, Chambers v. Higgins, 169 Va. 345, 193 S.E. 531; Anne Arundel County v. English, 182 Md. 514, 35 A. (2d) 135, 150 A.L.R. 842; Cooley on Taxation, 4th ed., Vol. 4, §§ 1792, 1798, 1809.

If it is manifest that the amount imposed is out of proportion to the expenses involved, the ordinance will generally be regarded as a revenue measure and void as a regulation under the police power. 53 C.J.S., Licenses, § 19 a, p. 516. However, if the business is harmful or one which the State may prohibit, the license fee may be such as to effect a reasonable restraint on or practically a prohibition of it. 53 C.J.S., supra, at p. 519; 33 Am Jur., Licenses, § 45, p. 368; United States v. Sanchez, 340 U.S. 42, 71 S.Ct. 108, 95 L.ed. 47. The business here involved does not fall within that classification.

It is also true, as argued by appellants, that a license tax may be imposed both for revenue and to regulate, Flax v. Richmond, 189 Va. 273, 283, 52 S.E. (2d) 250, 254; but anthority to adopt an ordinance to regulate is not authority to adopt an ordinance for general revenue purposes.

The court below held that the Trailer Company had sustained the burden of proof that the amount of the tax bears no relation to the cost of regulation. That conclusion is well supported by the record. As the court found, the evidence shows no consideration given to the cost of regulation in arriving at the amount of the tax. There is no claim that additional personnel were employed or were necessary for supervision or enforcement. The parks were not regularly patrolled. The police visited the camps only occasionally and for some special purpose. Health inspectors visited the camps once a year. The tax collected was not deposited to any special account, and it is clear that no effort was made to relate the amount of the tax to the cost of...