Gandy v. Elizabeth City County

• Decision Date: 02 March 1942
• Citation: 19 S.E.2d 97
• Parties: GANDY. v. ELIZABETH CITY COUNTY.
• Court: Virginia Supreme Court

19 S.E.2d 97

GANDY.

v.ELIZABETH CITY COUNTY.

Supreme Court of Appeals of Virginia.

March 2, 1942.

Error to Circuit Court, Elizabeth City County; John Weymouth, Judge.

W. J. Gandy was convicted of violating an ordinance of the County of Elizabeth City imposing a tax, and he brings error.

Reversed and dismissed.

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

Montague & Holt and H. H. Holt, all of Hampton, for plaintiff in error.

J. Wilton Hope, Jr., of Hampton, and Frank A. Kearney, of Phoebus, for defendant in error.

HOLT, Justice.

W. J. Gandy has been convicted of violating an ordinance enacted by the Board of Supervisors of Elizabeth City county which imposed a tax upon those doing business there. Upon a writ of error that judgment now comes under review.

This ordinance was first adopted on December 6, 1939, and later, on December 22, 1939, it was amended and readopted. Before it could go into effect its approval by the judge of the circuit court was necessary. It was approved by him on the 14th day of March, 1940, but by a nunc pro tunc order of that date it was made to take effect as of February 27, 1940.

Authority relied upon to enact such an ordinance and conditions prerequisite to its taking effect appear in an act of the General Assembly approved February 27, 1932, Acts of Assembly, p. 61, Code 1936, section 2743b, which, in part, reads:

"1. Be it enacted by the general assembly of Virginia, That the boards of supervisors of counties adjoining and abutting any city, within or without this State, having a population of one hundred and twenty-five thousand or more as shown by United States census, and the boards of supervisors of counties adjoining any county which adjoins and abuts any such city and has a density of population of five hundred or more to the square mile, are hereby vested with the same powers and authority as are now vested or which may hereafter be vested in the councils of cities and towns by virtue of the Constitution of the State of Virginia or the Acts of the General Assembly passed or which may hereafter be passed, in pursuance thereof; provided, however, that no ordinance shall be enacted under authority of this act regulating the equipment, operation, lighting, or speed of motor propelled vehicles operated on the public highways of such county, unless the same be uniform with general laws of this State, regulating such equipment, operation, lighting or speed and with the regulations of the State highway commission enacted pursuant to such general laws.

"Provided, that all laws enacted by boards of supervisors under authority of this act shall be submitted to and approved by the judge of the circuit court of the respective counties, after hearing testimony of all parties desiring to be heard to be taken as in common law cases, showing the necessity of such laws and police regulations, or in opposition thereto. And provided further that all fines imposed under any such ordinances shall be paid into the State treasury where the offender was arrested by an officer of one of the departments of the State government. * * * "

By an act approved March 14, 1924, Acts of Assembly, p. 307, Code 1936, section 2743, boards of supervisors were given this among other powers: "To adopt such measures as they may deem expedient to secure and promote the health, safety, and general welfare of the inhabitants of their respective counties not inconsistent with the general laws of this State."

It was there further provided: "No such ordinance or by-laws shall be passed until after notice of an intention to propose the same for passage shall have been published for two successive weeks prior to its passage in some newspaper published in the county, or if there be none such, in some newspaper published in an adjoining county or nearby city and having a general circulation in the county of said board, and no such ordinance or by-laws shall become effective until after it shall have been published in full for two successive weeks in a like newspaper."

A legislative committee to which this matter was referred was of opinion that the purposes sought to be accomplished could not be effected by a general law and that a special act was necessary. Theact of February 27, 1932, contains no such provision for publication as appeared in the act of March 14, 1924, Code, section 2743. If the act of February 27, 1932, is complete in itself and stands alone and upon its own feet, it is only necessary that its provisions be observed; otherwise it should be read in connection with other cognate general statutes; that is to say, those which deal with this general subject.

It will be observed that the act of 1932 is general in its provisions and applies to all "counties adjoining and abutting any city, within or without this State, having a population of one hundred and twenty-five thousand or more, as shown by United States census, and the boards of supervisors of counties adjoining any county which adjoins and abuts any such city and has a density of population of five hundred or more to the square mile."

"A law is special in a constitutional sense when, by force of an inherent limitation, it arbitrarily separates some persons, places, or things from others, upon which, but for such limitation, it would operate." Budd v. Hancock, 66 N.J.L. 133, 48 A. 1023, 1024.

A law is general though it may immediately affect a small number of persons, places or things, provided, under named conditions and circumstances, it operates alike on all who measure up to its requirements.

In Martin's...