Town of Madison, Inc. v. Ford

• Decision Date: 27 February 1998
• Docket Number: Record No. 970642.
• Citation: 255 Va. 429,498 S.E.2d 235
• Parties: TOWN OF MADISON, INC. v. Carol W. FORD.
• Court: Virginia Supreme Court

498 S.E.2d 235

255 Va. 429

TOWN OF MADISON, INC. v. Carol W. FORD.

Record No. 970642.

Supreme Court of Virginia.

February 27, 1998.

Ronald L. Morris (Jeffery C. Early; Berry & Early, on briefs), Standardsville, for appellant.

Roy D. Bradley, Madison, for appellee.

Present CARRICO, C.J., COMPTON, LACY, HASSELL, KEENAN and KOONTZ, JJ., and WHITING, Senior Justice.

WHITING, Senior Justice.

This case turns on whether a town zoning ordinance was adopted in compliance with the second paragraph of the following constitutional provision:

No ordinance or resolution appropriating money exceeding the sum of five hundred dollars, imposing taxes, or authorizing the borrowing of money shall be passed except by a recorded affirmative vote of a majority of all members elected to the governing body....

On final vote on any ordinance or resolution, the name of each member voting and how he voted shall be recorded.

Va. Const. Art. VII, § 7 (art. VII, § 7).

In a suit filed by the Town of Madison to enjoin Carol W. Ford's alleged violation of a town zoning ordinance, Ford defended on the ground that the ordinance was void because it had not been adopted in the manner prescribed by the paragraph in question. At an ore tenus hearing on Ford's special plea, the Town introduced a copy of the minutes of an October 25, 1972 special meeting of the town council in which the ordinance allegedly was adopted. As pertinent, the minutes provide:

Town Council held a special meeting on the above date following the joint hearing of the Planning Commission and the Council. All members were present....

Council was informed by the Planning Commission that they [sic] have approved the Zoning Ordnance [sic].... Councilman Drake moved that the Town Council accept the ordnance [sic] as presented by the Commission. Motion seconded by Councilwoman Johnston and carried unanimously.

(Emphasis added).

After hearing the evidence and argument of both parties, the court filed a written opinion in which it held that the zoning ordinance was not enacted in accordance with the second paragraph of art. VII, § 7 and was, therefore, void ab initio. The Town appeals a final judgment entered in conformity with the opinion.

Initially, the Town argues that the provisions of the second paragraph of art. VII, § 7 apply only to the fiscal ordinances referred to in its paragraph one. We disagree. In our opinion, the express terms of the second paragraph make its provisions clearly applicable to all ordinances, not just those ordinances referred to in the first paragraph.

Nevertheless, the Town contends that the minutes of the meeting show compliance with the second paragraph of art. VII, § 7 since the minutes recite that all members were present when the meeting began and that the resolution was passed unanimously. Ford responds that, because the name of each council member and how he or she voted on the ordinance is not shown on the face of the minutes, the constitutional requirement was not met.

First, we consider the effect of this constitutional provision. The Virginia constitution is "the charter by which our people have consented to be governed." Coleman v. Pross, 219 Va. 143, 152, 246 S.E.2d 613, 618 (1978); see also Dean v. Paolicelli, 194 Va. 219, 226, 72 S.E.2d 506, 510-11 (1952); Staples v. Gilmer, 183 Va. 338, 350, 32 S.E.2d 129, 133 (1944). Therefore, it is the fundamental law in Virginia. Terry v. Mazur, 234 Va. 442, 450, 362 S.E.2d 904, 908 (1987).

Further, the Virginia Constitution is a restriction of powers, establishing the limits of governmental action. See Dean, 194 Va. at 226, 72 S.E.2d at 510-11; Mumpower v. Housing Auth., 176 Va. 426, 445, 11 S.E.2d 732, 739 (1940) (restriction of governmental powers). Thus, although the Town had the power to enact zoning ordinances under the provisions of Code § 15.1-486 (now Code § 15.2-2280), that power can only be exercised in the manner expressly required by art. VII, § 7. See Town of South Hill v. Allen, 177 Va. 154, 159, 12 S.E.2d 770, 772 (1941) (municipal power exercisable only in manner set forth in constitution); see also County of Fairfax v. Southern Iron Works, Inc., 242 Va. 435, 446, 410 S.E.2d 674, 680 (1991).

If a constitutional provision is plain and unambiguous, we do not construe it, but apply it as written. Scott v. Commonwealth, 247 Va. 379, 384, 443 S.E.2d 138, 141 (1994); Thomson v. Robb, 229 Va. 233, 239, 328 S.E.2d 136, 139 (1985); Harrison v. Day, 200 Va. 439, 448, 106 S.E.2d 636, 644 (1959). Here, the plain and unambiguous language of art. VII, § 7 requires that, upon the town council's "final vote on any ordinance or resolution, the name of each member voting and how he voted shall be recorded."

As the Town states in its brief, requirements similar to those imposed by art. VII, § 7 are "a check against the human tendency to hide individual actions in those of the group or to assent silently to the groups' [sic] will when the individual may have a differing view." The Town recognizes that the names of the council members who voted in favor of the ordinance are not stated in the minutes, but contends that "there can be no doubt as to how each member voted" and that the minutes are in substantial compliance with the constitutional provision. In support, the Town cites the following provisions of an attorney general's opinion.

[T]he recorded vote of each individual member of the [B]oard [of Supervisors] is not necessary when a motion is either passed or rejected upon the unanimous action of the members at their regular meeting after there has been a recording in the minutes of the members who are present. In such circumstances, the names of the members and how they voted is recorded.

1971-72 Op. Att'y Gen. 43 (emphasis added). The opinion does not support the Town's contention.

Although suggesting a formal roll call vote is not necessary, the opinion is clearly predicated on the assumption that "there has been a recording in the minutes of the members who are present." In the minutes at issue, the names of only three of the four council members are stated. Additionally, for the reasons articulated later, the notation in the minutes that "the motion ... carried unanimously" does not necessarily indicate that each of those council members voted in favor of the motion.

The Town also relies on three cases from other jurisdictions upholding the adoption of various motions by town councils in which restraints similar to those in this case were imposed upon the manner of recording council members' votes. However, unlike the minutes in this case, the minutes of each governmental body in two of the cases reflected how each member voted. In Goodyear Rubber Co. v. City of Eureka, 135 Cal. 613, 67 P. 1043, 1043 (1902), the minutes noted the names of those councilmen present and stated "[a]ll present voting in favor thereof, and no one against the same." In Brophy v. Hyatt, 10 Colo. 223, 15 P. 399, 401 (1887), the minutes recited that "upon the ballot being spread for its approval and adoption, the votes stood as follows: Ayes, [listing by name six members of the town board of trustees]. Noes, none." In the third case, the minutes recited the names of the council members and noted that the members present voted in favor of the ordinance. Hammon v. Dixon, 232 Ark. 537, 338 S.W.2d 941, 943-44 (1960).

In contrast to the Town's contentions, the minutes at issue neither record the names of all council members present nor report how the members of the council voted. The Supreme Court of Michigan has stated:

Now if it were a legal presumption that all the members who were present at the call to order of such a meeting remained until its adjournment, and that no others came in and took their seats afterwards, and if it were also a presumption that every member voted on each resolution on roll-call, the argument of the [town council in favor of the validity of its action in adopting the ordinance] would be complete....

But surely there are no such presumptions of law, and if there were, they would be contradictory to the common experience of similar official bodies. It is very well known that it is neither observed nor expected that when a legislative body of any grade has commenced its daily session, the doors will be closed to prevent the ingress of members not prompt in arrival, or the egress of others who may have occasion to leave. The actual attendance on such a body will frequently be found to change materially from hour to hour, so that a record that a vote was passed unanimously would be very slight evidence that any particular member present at the roll-call voted for it, or that any member not then present did not.... Moreover, the members actually present are usually allowed to vote or not to vote at their option, ... and if the vote of a quorum is in favor of a resolution and no vote is cast against it, the record may still be that it was "adopted unanimously on call," though some of the members present abstained from voting.

Steckert v. City of East Saginaw, 22 Mich. 104, 108-09 (1870) (cited with approval by: Monett Elec. Light, Power & Ice Co. v. City of Monett, 186 F. 360, 368-69 (C.C.D.Mo. 1911); Nelson v. State ex. rel. Axman, 83 So.2d 696, 698 (Fla.1955); City of Rome v. Reese, 19 Ga.App. 559, 91 S.E. 880, 881 (1917); Pontiac v. Axford, 49 Mich. 69, 12 N.W. 914, 915 (1882); Bruder v. Board of Educ., 177 Minn. 19, 224 N.W. 268, 270 (1929); Village of Beverly Hills v. Schulter, 344 Mo. 1098, 130 S.W.2d 532, 537 (1939); Hand v. School Dist., 140 Neb. 874, 2 N.W.2d 313, 315 (1942); Union Bank v. Commissioners of Oxford, 119 N.C. 214, 25 S.E. 966, 968 (1896); Pickton v. City of Fargo, 10 N.D. 469, 88 N.W. 90, 96 (1901); Board of Educ. v. Best, 52 Ohio St. 138, 39 N.E. 694, 697 (1894); Shalersville Bd. of Educ. v. Horner, 55 Ohio App. 356, 9 N.E.2d 918, 921-22 (1936); Finney v. Shannon, 166 Wash. 28, 6 P.2d 360, 362-63 (1931)).

Further, the Town's recital of a unanimous...