Dean v. Paolicelli

• Decision Date: 10 September 1952
• Docket Number: No. 4021,4021
• Citation: 194 Va. 219,72 S.E.2d 506
• Parties: ALAN L. DEAN, ETC., ET AL. v. ROCCO PAOLICELLI, ET AL. Record1/2
• Court: Virginia Supreme Court

Page 506

72 S.E.2d 506

194 Va. 219

ALAN L. DEAN, ETC., ET AL. v. ROCCO PAOLICELLI, ET AL.

Record No. 4021 1/2.

Supreme Court of Appeals of Virginia

September 10, 1952.

William J. Hassan, Lawrence W. Douglas and Edmund D. Campbell, for the petitioners.

John Locke Green and Alfred W. Trueax, for the respondents.

JUDGE: MILLER

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

The constitutionality of section 2-27, Code of 1950, and of section 2-29, subsection 11, Code of 1950, as amended by Acts of 1950, ch. 90, p. 101, is tested by this litigation.

A bill in equity was filed by Rocco Paolicelli and others, citizens and taxpayers of Arlington county, against Alan L. Dean, a member of the County Board of Arlington county, Colin C. MacPherson, treasurer of Arlington county, and others. The object of the proceeding was to have the court declare subsection 11 of section 2-29, Code of 1950, as amended, unconstitutional, adjudicate that Dean had, under the provision of section 2-27 of the Code, vacated his office as a member of the Board, and restrain the treasurer from paying his salary as a board member.

The parties will be designated complainants and defendants in accordance with the position occupied by them in the lower court, and for brevity, the County Board of Arlington county will be called the Board.

The bill alleges that Dean assumed membership on the Board January 1, 1952, and has since that date undertaken to perform the duties of a board member, and that during that time he was an employee of the Federal government. It also alleges that since January 1, 1952, he has drawn salary as a board member and as an employee of the United States. In effect, the charge is made that under section 2-27, Dean vacated his office on the board by acceptance of Federal employment. The office was vacated, they say, because subsection 11 of section 2-29, as amended by Acts of 1950, ch. 90, p. 101, under which Dean claims the right to serve as an employee of the United States while holding office on the Board, is special and local legislation that violates section 64, Art. IV, Constitution of Virginia. Subsection 11 being thus rendered inoperative, Dean's office on the Board was, it is claimed, vacated by force of section 2-27.

The County Board of Arlington county, a body corporate, asked leave to intervene in the cause and by order duly entered, was made a party defendant. The individual defendants and the Board demurred to the bill. They insist that subsection 11, as amended by Acts of 1950, is constitutional and allows Dean to hold his office while serving as a Federal employee. It is asserted that section 2-27 is special legislation of the character not prohibited by the Constitution. (Leesburg v. Loudoun County School Board, 181 Va. 279, 24 S.E (2d) 439), and thus the supplemental or amending legislation provided in subsection 11 of section 2-29 does not violate the constitution. However, if subsection 11 be held unconstitutional, then, in that event, defendants insist that section 2-27 is unconstitutional because it violates section 32, Article II, Constitution of Virginia. In this connection it is said that section 32 states and prescribes in comprehensive language that every qualified voter shall be eligible to any public office and the qualifications therein specified may not be added to or restricted by legislative enactment. Defendants then assert that by section 2-27 the legislature has illegally attempted to impose additional qualifications by disqualifying an officeholder who accepts employment with the Federal government though he otherwise measures up to the requirements of section 32.

To counter this contention complainants invoke section 56, Article IV, Constitution of Virginia, which empowers the General Assembly to declare when an office shall be deemed vacant when no such provision is made therefor in the constitution.

The office of defendant, Dean, has been vacated, and he is illegally exercising the powers of a board member if the contention of complainants that subsection 11 is unconstitutional, is correct. On the other hand, if defendants are correct in their contention that subsection 11 is constitutional or that section 2-27 is unconstitutional, then there is no legislative inhibition to prevent Dean from serving as a board member while employed by the United States government.

After hearing argument upon the demurrer, the court treated the bill of complaint as one for a declaratory judgment and overruled the demurrer. The merits of the case being presented by the pleadings, the defendants elected to stand on their demurrer. The court thereupon entered a decree on May 8, 1952, which declared section 2-27 to be constitutional but held that section 2-29, subsection 11, Code 1950, and subsection 11, as amended by Acts of 1950, ch. 90, p. 101, to be 'special and local legislation, and as such, in violation of the constitution of this state.'

Though the decree recited that 'this order is final,' no injunction was awarded to restrain the treasurer from paying Dean his salary, nor was his office on the board declared vacant.

Though there are other incidental problems involved, the chief questions presented to us for determination have to do with the constitutionality of the two sections of the Code, i.e., section 2-27 and section 2-29, subsection 11.

It is to be kept in mind that the right to be elected to public office and the right of incumbency are not natural, absolute and inalienable rights inherent in all individuals. They are rather political privileges, upon which may be imposed reasonable qualifications, conditions and restrictions in the interest of the public. 42 Am. Jur., Public Officers, sections 3 and 37, 67 C.J.S., Officers, section 11, et seq.

Section 2-27, which imposes certain qualifications and conditions upon a person who assumes to occupy and hold an office, reads as follows:

'No person shall be capable of holding any office or post mentioned in the preceding section [i.e., any office of honor, profit, or trust, under the constitution of Virginia], who holds any office or post of profit, trust, or emolument, civil or military, legislative, executive or judicial, under the government of the United States, or who is in the employment of such government, or who receives from it in any way any emolument whatever; and the acceptance of any such office, post, trust, or emolument, or acceptance of any emolument whatever under such government, shall, ipso facto, vacate any office, or post of profit, trust or emolument under the government of this Commonwealth or under any county, city, or town thereof.'

Section 2-29, Code of 1950, as amended by Acts of 1950, ch. 90, p. 101, consists of a group of fourteen exceptions to section 2-27, which have the effect of limiting its operation and thus, in part, repealing it.

Insofar as pertinent here, section 2-29, as amended by Acts of 1950, ch. 90, p. 101 provides that section 2-27 shall not be construed:

'(11) To prevent any United States government employee, otherwise eligible, from holding any office under the government of any county in this state having a population in excess of three hundred inhabitants per square mile, *or of any city or county adjoining any county having a population in excess of two thousand inhabitants per square mile; * * *' ¹

No part of the relief prayed for by complainants can be awarded if section 2-27 is unconstitutional. It is therefore best that we decide whether or not it contravenes section 32 of the constitution before the validity or invalidity of subsection 11 of section 2-29 is considered. We now direct our attention to that phase of the case.

The pertinent part of section 32, upon which defendants rely to support their contention that section 2-27 of the Code is unconstitutional, and section 56, under which complainants assert that the legislature was empowered to enact section 2-27, read respectively as follows:

32: 'Every person qualified to vote shall be eligible to any office of the State, or of any county, city, town or other subdivision of the State, wherein he resides, except as otherwise provided in this Constitution, * * *'

56: 'The manner of conducting and making returns of elections, of determining contested elections, and of filling vacancies in office, in cases not specially provided for by this Constitution, shall be prescribed by law, and the General Assembly may declare the cases in which any office shall be deemed vacant where no provision is made for that purpose in this Constitution.' (Italics supplied.)

When sections 32 and 56 of the constitution are read and considered together, which must be done, was the enactment of section 2-27 within the power of the legislature? That is the first question to be solved.

When these sections of the constitution are considered in the light of each other and the controlling principles of construction applied, complainants assert that there is no conflict. They insist that section 32 deals solely with qualifications of eligibility in the first instance, i.e., eligibility of the aspirant to election, whereas section 56 empowers the legislature, in the interest of the public, to determine the electee's capability to hold the office, and if incapable, to declare the office vacant if provision for such declaration be not made elsewhere in the constitution. Complainants then argue that there is no provision in the constitution declaring an office of this character vacant if its incumbent accepts another office or employment with the United States government, and that in keeping with the public policy of this state, the legislature is fully empowered by section 56 to enact section 2-27 which makes that declaration in the interest of the public.

The office and purpose of the constitution is to shape and fix the limits of governmental activity. It thus proclaims, safeguards and preserves in basic form the pre-existing laws,...