Fallon Florist v. City of Roanoke

• Court: Supreme Court of Virginia
• Citation: 190 Va. 564,58 S.E.2d 316
• Decision Date: 13 March 1950
• Docket Number: 3594,Nos. 3593,BARROW-PENN,3596,s. 3593
• Parties: FALLON FLORIST, INC., ET ALS. v. CITY OF ROANOKE.& COMPANY, INC., ET ALS. v. CITY OF ROANOKE. PATRICK HENRY OPERATING COMPANY, INC., ET ALS. v. CITY OF ROANOKE. Record1

Page 316

58 S.E.2d 316

190 Va. 564

FALLON FLORIST, INC., ET ALS. v. CITY OF ROANOKE.

BARROW-PENN & COMPANY, INC., ET ALS. v. CITY OF ROANOKE.

PATRICK HENRY OPERATING COMPANY, INC., ET ALS. v. CITY OF ROANOKE.

Record Nos. 3593, 3594, 3596. 1

Supreme Court of Appeals of Virginia

March 13, 1950.

Hazlegrove, Shackelford & Carr and Earl A. Fitzpatrick for appellants, Fallon Florist, Inc., et als.

H. M. Moomaw, for appellants, Barrow-Penn & Co., Inc., et als.

Woodrum & Staples and Hazlegrove, Shackelford & Carr, for appellants, Patrick Henry Operating Co., Inc., et als.

Randolph G. Whittle and James N. Kincanon, for the appellee.

JUDGE: EGGLESTON

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

These appeals involve the validity of certain ordinances enacted by the council of the city of Roanoke imposing taxes upon three types of business transactions conducted within the city. Each of the appeals is from a decree entered by the lower court in a declaratory judgment proceeding ¹ sustaining the validity of the ordinance and the tax thereby imposed.

The Fallon Florist case involves the validity of a tax 'imposed upon each and every purchaser of any floral design' within the city, at the rate of 5% 'of the price contracted to be paid for the same.'

The Barrow-Penn & Company case involves the validity of a tax 'upon each and every sale of cigarettes' within the city at the rate of one cent for each ten, or fractional number of ten, cigarettes so sold.

The Patrick Henry Operating Company case involves the validity of a tax of 5% 'of the total amount paid for room rental by or for any * * * transient to any hotel' within the city.

Under the ordinances the duty of collecting and reporting to the designated officials of the city the taxes on floral designs and on cigarettes sold within the city is placed upon the respective sellers of these articles, and the corresponding duty with respect to the hotel room rental tax is imposed upon the individual, corporation, company, association, firm, etc., receiving payment for such rental. Penalties are prescribed for the failure to comply with the terms and provisions of the ordinances. Such other provisions of the ordinances as may be pertinent to the questions raised will be later referred to.

The City of Roanoke concedes that it possesses only such power to levy, assess and collect taxes as has been delegated to and conferred upon it by the General Assembly in accordance with the Constitution of this State. But it contends, and the lower court held, that the necessary power and authority were delegated to it by section 2 of its charter ² which confers upon it the general power of taxation in this language:

'Section 2. In addition to the powers mentioned in the preceding section, the said city shall have power:

'First. To raise annually by taxes and assessments in said city such sums of money as the council hereinafter provided for shall deem necessary for the purposes of said city, and in such manner as said council shall deem expedient, in accordance with the Constitution and laws of this State and of the United States; provided, however, that it shall impose no tax on the bonds of said city; and provided, further, that said tax rate shall not exceed the sum of two dollars and fifty cents ($2.50) on the one hundred dollars of assessed value of real and personal property in this city except for providing for the payment of the principal and interest on any non-revenue bonds hereafter issued and approved by a vote of the freeholders, or for any bonds issued to refund the same. The maximum rate of two dollars and fifty cents ($2.50) shall be construed to include any and all levies which might otherwise be levied under the provisions of sections two hundred and ninety-three, two hundred and ninety-four and two hundred and ninety-five of the Tax Code of Virginia; and the authority to exceed the two dollars and fifty cents ($2.50) maximum rate shall not be construed to authorize the council to exceed the same to pay principal or interest on non-revenue bonds or on any refunding bonds issued to refund bonds originally issued prior to January first, nineteen hundred and forty-two.'

The appellants make both concerted and separate attacks on this position.

First, they say, sections 63, (5) and 64 of the Constitution prohibit the General Assembly from delegating to cities the authority to assess and collect taxes except by general laws conferring like powers on all municipalities throughout the Commonwealth, and since there is no such general law authorizing municipalities to impose the taxes with which we are concerned, the charter provision relied on, being a special or local law, is ineffectual to confer such authority upon the city of Roanoke.

Section 63 of the Constitution provides in part:

'The General Assembly shall not enact any local, special or private law in the following cases:

* * *

'5. For the assessment and collection of taxes, except as to animals which the General Assembly may deem dangerous to the farming interests.'

Item 5 is one of twenty subjects within the inhibited class.

Section 64 provides in part: 'In all cases enumerated in the last section, and in every other case which, in its judgment, may be provided for by general laws, the General Assembly shall enact general laws.'

The city concedes that the General Assembly has enacted no general law which grants to municipalities the specific authority to impose the particular taxes here involved. It also concedes that the charter provision relied on is a special or local law within the meaning of section 63. But it insists that section 117 of the Constitution gives to the General Assembly the necessary authority to confer upon a municipality the power of taxation by a provision in its charter.

We need not stop to consider whether such a provision as that under consideration, which is usually found in the charter of a city or town and grants to it the broad power to impose such taxes as may be necessary for its governmental functions, is a law 'for the assessment and collection of taxes' within the meaning of section 63 of the Constitution. ³

There is, we think, a complete answer to appellants' argument in section 117 (a) of the Constitution, as interpreted by the previous decisions of this court. This section provides in part: 'General laws for the organization and government of cities and towns shall be enacted by the General Assembly, and no special act shall be passed in relation thereto, except in the manner provided in article four of this Constitution, and then only by a recorded vote of two-thirds of the members elected to each house. * * *'

In Portsmouth v. Weiss, 145 Va. 94, 133 S.E. 781, an attack was made on a provision in the charter of the city of Portsmouth which required a written statement of the particulars of an accident to be filed with the city manager within a specified time as a condition precedent to the right to sue the city because of the negligence of its officers or employees. It was there contended that the charter provision was in contravention of section 63, paragraph 3, of the Constitution, which forbids the enactment of a 'local, special or private law' 'regulating the practice in, or the jurisdiction of, or changing the rules of evidence in any judicial proceedings or inquiry before the courts or other tribunals.'

In an opinion by Judge Burks this court held that the charter provision was valid. The opinion points out that sections 63 and 64 must be read in connection with section 117, that the latter section was designed to enable municipal corporations, because of their peculiar problems, 'to care for their special interests,' and that, 'Usually this could be done by general laws applicable to all municipal corporations, but the Convention realized that there might be cases where it would be desirable to confer special powers, or special privileges, on one not needed or required by all, and hence we find it provided by section 117 of the Constitution that 'general laws for the organization and government of cities and towns shall be enacted by the General Assembly, and no special act shall be passed in relation thereto, except in the manner provided in article four of this Constitution, and then only by a recorded vote of two-thirds of the members elected to each house."' (145 Va., at page 106.)

Continuing, that opinion says: '* * * If section 63 of the Constitution, forbidding the passage of any local, special or private law regulating the practice in any judicial proceeding, is apparently in conflict with section 117, the conflict is more apparent than real. Section 63 must be held to apply to cases not otherwise specially provided for. It cannot be supposed that the Convention intended to impose upon the legislature any other restraints in the enactment or amendment of charters of municipal corporations than those imposed by section 117. It was dealing with that specific subject, and threw around it all the safeguards it deemed necessary. If these were complied with, the power of the legislature in reference thereto was unrestrained. The language of section 63 is general, that of 117 is specific. The general must give way to the specific, and section 63 applied to cases not otherwise specifically provided [for]. In this way the two sections are made to harmonize, and the apparent repugnancy is avoided.' (145 Va., at pages 107, 108.)

The opinion further points out that under a similar attack the validity of special charter provisions was up-held in Miller v. Pulaski, 109 Va. 137, 63 S.E. 880, 22 L.R.A. (N.S.) 552, and Narrows v. Board of Sup'rs, 128 Va. 572, 105 S.E. 82. 'The last two mentioned cases,' it is said, 'are authority for the proposition that special charters of municipal corporations or amendments thereof conferring rights and powers different from and in addition to those conferred by general statutes are authorized by ...