Duke v. Pulaski County

• Decision Date: 06 October 1978
• Docket Number: No. 780121,780121
• Citation: 219 Va. 428,247 S.E.2d 824
• Parties: James D. DUKE, Jr. v. COUNTY OF PULASKI. Record
• Court: Virginia Supreme Court

Page 824

247 S.E.2d 824

219 Va. 428

James D. DUKE, Jr. v. COUNTY OF PULASKI.

Record No. 780121.

Supreme Court of Virginia.

Oct. 6, 1978.

Philip M. Sadler, Gary C. Hancock, Pulaski (Gilmer, Sadler, Ingram, Sutherland & Hutton, Pulaski, on brief), for appellant.

R. Glennwood Lookabill, Asst. Commonwealth Atty., Pulaski, for appellee.

Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, POFF and COMPTON, JJ.

COCHRAN, Justice.

James D. Duke, Jr., was charged with violation of the Pulaski County Unlicensed Automobile License Tax Ordinance. The trial court, sitting without a jury, found Duke guilty and imposed upon him a fine of $50. On appeal, Duke contends, as he did in the trial court, that the enabling statute, Code § 15.1-27.1, and the Pulaski County ordinance enacted pursuant thereto, were unconstitutionally applied to him in violation of his rights under the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the United States Constitution ¹ and under Article I, Section 11 of the Virginia Constitution. ² Duke also challenges the sufficiency of the evidence.

The enabling statute, enacted as Acts 1970, c. 380, provided:

"S 15.1-27.1. Ordinances imposing license taxes on owners of certain automobiles. The governing body of any county, city or town in this State may adopt an ordinance imposing a license tax, in an amount not exceeding ten dollars annually, upon the owners of automobiles which do not display current license plates and which are not exempted from the requirements of displaying such license plates under the provisions of §§ 46.1-42 through 46.1-49 and 46.1-119 and 46.1-120, are not in a public dump, in an 'automobile graveyard' as defined in § 33-279.3 ³ or in the possession of a licensed junk dealer or licensed automobile dealer. Nothing in this section shall be applicable to any vehicle being held or stored by or at the direction of any governmental authority, to any vehicle owned by a member of the armed forces on active duty or to any vehicle regularly stored within a structure." ⁴

Pursuant to the enabling statute, the Board of Supervisors of Pulaski County approved the local ordinance, effective November 27, 1973, which read in pertinent part as follows:

"ARTICLE I LICENSE TAX

"1-1 There is hereby imposed an annual license tax of ten dollars ($10.00) per automobile on owners of automobiles located in Pulaski County which do not display current license plates and which are not exempted from the requirements of displaying such license plates under the provisions of Sections 46.1-42 through ( ⁵ ) 46.1-119 and 46.1-120, Code of Virginia of 1950, as amended, are not in a public landfill, in an automobile graveyard as defined in Section 33.1-348, Code of Virginia of 1950, as amended, or in the possession of a licensed junk dealer or licensed automobile dealer. This tax will be due and payable on March 15, of each year beginning in 1974 and will not be considered in default if paid on or before April 15th of the year in which due.

"1-2 Nothing in this Article shall be applicable to any vehicle being held or stored by or at the direction of any governmental authority, to any vehicle owned by a member of the armed forces on active duty or to any vehicle regularly stored within an enclosed structure."

The facts are undisputed. Charles T. Goins, the official charged with responsibility for enforcing the ordinance, found that Duke owned four unlicensed vehicles parked on private property on which Duke operated a business known as Jim's Steak House. Goins gave Duke seven days to comply with the ordinance, and, when Duke failed to act, caused a warrant to be issued against him for the violation.

Duke described the four unlicensed vehicles as a 1960 Buick convertible, a 1961 Chevrolet pickup "special catering truck", a 1950 Ford panel truck, and a refrigerated milk truck. He denied that he had abandoned any of the vehicles. It was his testimony that he had repossessed the Buick from a defaulting purchaser and was holding it for a cash sale. The Chevrolet pickup truck, Duke said, was fitted out to transport sandwiches, soft drinks, and coffee for sale at retail. Although Duke was in the business of selling sandwiches only at wholesale, he had hoped to use the truck but had been unable to do so because of a shortage of help. He had refused many offers to buy the Ford panel truck, and he planned to work on it during the year with his brothers and restore it to operable condition. The refrigerated milk truck had been purchased from a creamery and Duke was using it to store beer for sale in his restaurant. Duke acknowledged that he had not purchased licenses for the four vehicles and that he did not intend to comply with what he considered to be a discriminatory ordinance.

Goins conceded that the automobile and the pickup truck were in operable condition and that if they were his he "would hate to junk them". He could not express an opinion as to the condition of the panel truck because he had not examined it as carefully as the other vehicles.

Duke says that the statute and the ordinance were enacted for the legitimate purpose of eliminating "junk" vehicles that were not located in junkyards or automobile graveyards. He points specifically to the guidelines approved by the Board of Supervisors for administering the Unlicensed Vehicle Tax Ordinance in which the ordinance is also referred to as the "Junk Car Licensing Ordinance". Duke maintains that the statute and ordinance, although presumptively valid, are overbroad. It is his contention that the classification of "junk" vehicles to comprise, subject to the designated exceptions, all unlicensed vehicles, including the operable and operating, ⁶ is unreasonable and void.

While all junk vehicles may be unlicensed, Duke argues, all unlicensed vehicles are not junk, as evidenced by his own vehicles and by the express exception provided in the law for the unlicensed vehicles of servicemen on active duty. Duke relies upon the familiar principle that a classification must be reasonable and must "rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike". Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 561, 64 L.Ed. 989 (1920).

In Equal Protection cases classifications based upon alienage, race, or national origin are inherently suspect and subject to close scrutiny. Graham v. Richardson, 403 U.S. 365, 371-72, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971). When the classification is not suspect it is permissible if the governmental objective is "legitimate" and the classification bears a "reasonable" or "substantial" relation thereto. Arlington County v. Richards, 217 Va. 645, 648, 231 S.E.2d 231, 233, Rev'd per curiam, 434 U.S. 5, 98 S.Ct. 24, 54 L.Ed.2d 4 (1977).

In Arlington County a local ordinance required the County Manager to determine which residential areas were especially crowded with parked cars from outside the neighborhood and to issue free parking permits to residents of those areas, to persons doing business with residents, and to some visitors, and prohibited parking therein by all others. We held that this ordinance facially violated the Equal Protection Clause because the discrimination between residents and nonresidents bore no reasonable relation to the ordinance's stated objectives. However, the United States Supreme Court disagreed, and reversed and remanded the case for further proceedings, holding that the Constitution does not presume distinctions between residents and nonresidents in a neighborhood to be invidious, that the Equal Protection Clause requires only that the distinction drawn by the ordinance "rationally promote the regulation's objectives", and that the ordinance on its face met this test. County Bd. of Arlington Cty., Va. v. Richards, 434 U.S. 5, 7, 98 S.Ct. 24, 54 L.Ed.2d 4 (1977). And in Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310, Reh. denied, 429 U.S. 873, 97 S.Ct. 191, 50 L.Ed.2d 155 (1976), the Supreme Court, reviewing an ordinance of the City of Detroit providing that "adult" motion picture theatres may not be located within 1,000 feet of two other zoning districts, held that the "city's interest in the present and future character of its neighborhoods adequately supports its classification of motion pictures". Id. at 72, 96 S.Ct. at 2453. The ordinance was upheld against a First Amendment challenge and was also held not to violate the Equal Protection Clause of the Fourteenth Amendment. These cases clearly demonstrate that wide discretion may be exercised by a governing body in establishing a non-suspect classification.

It is apparent in the present case that the classification in issue is not based upon religious conviction, race, color, sex, or national origin in violation of the nondiscrimination clause of Article I, Section 11 of the Virginia Constitution. Moreover, it is equally clear that, as the classification is not based upon alienage, race, or national origin, it is not inherently suspect and subject to the strict standards applicable to such classifications under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Therefore, if the classification has some reasonable basis and bears a reasonable relationship to the legislative objective, the governmental authority may treat different classes in different ways. Reed v. Reed, 404 U.S. 71, 75, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971). The classification will not be held to be unconstitutional merely because it results in some inequality or some discrimination. Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970); Sheek v. City of Newport News, 214 Va. 288, 291, 199 S.E.2d 519, 522 (1973); See Archer and Johnson v. Mayes, 213 Va. 633, 638, 194 S.E.2d 707, 710-11 (1973).

As Duke concedes that the...