Wilmert Jack Pruett v. Town of Tazewell ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Bumgardner and Lemons
Argued at Salem, Virginia
WILMERT JACK PRUETT
MEMORANDUM OPINION * BY
v. Record No. 0771-98-3 JUDGE SAM W. COLEMAN III
MARCH 30, 1999
TOWN OF TAZEWELL
FROM THE CIRCUIT COURT OF TAZEWELL COUNTY
Donald R. Mullins, Judge
Robert M. Galumbeck (Dudley, Galumbeck &
Necessary, on brief), for appellant.
George R. Brittain, II (Robert B. Altizer;
Gillespie, Hart, Altizer & Whitesell, P.C., on
brief), for appellee.
Wilmert Jack Pruett was convicted in a bench trial for
operating a motor vehicle while under the influence of intoxicants
in violation of § 16-2 of the Code of the Town of Tazewell
(Tazewell Code). Pruett contends that Tazewell's DUI ordinance is
invalid because it violated provisions in the town's charter by
(1) exceeding the charter's $500 limit imposed on municipal fines,
see Tazewell Code § 2-246, and (2) violating the charter's
requirement that an ordinance be confined to a single subject, see
Tazewell Code § 3-8. Because the General Assembly expressly
authorized all municipal corporations, including Tazewell, to
adopt ordinances proscribing the operation of a motor vehicle
while under the influence of intoxicants, Code § 46.2-1313, and
expressly provided that the penalty for such offense shall conform
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
to the penalty in the state statute, we find Tazewell's ordinance
to have been validly enacted by virtue of the specific legislation
rather than its general authority granted under its charter. We
also find that the enactment of § 16-2 of the Tazewell Code did
not violate the town's charter requirement that an ordinance be
confined to a single subject. Accordingly, we affirm the trial
court's ruling that the town ordinance is not invalid on either
ground.
I. IMPACT OF TAZEWELL CODE § 2-246 ON TAZEWELL CODE § 16-2
Pursuant to Virginia Code § 46.2-1313 1 the Town of Tazewell
passed an ordinance, Code § 16-2, which incorporated Virginia Code
§§ 18.2-266 through 18.2-273, proscribing operation of a motor
vehicle while intoxicated. By so doing, the Town Council made
operating a motor vehicle while intoxicated within the town's
boundaries a violation of the Tazewell Code. Among the Virginia
Code sections that Tazewell adopted is Virginia Code § 18.2-270
1
Code § 46.2-1313 provides:
Ordinances enacted by local authorities
pursuant to this article may incorporate
appropriate provisions of this title, of
Article 9 (§ 16.1-278 et seq.) of Chapter 11
of Title 16.1, and of Article 2 (§ 18.2-266
et seq.) of Chapter 7 of Title 18.2 into such
ordinances by reference. Nothing contained
in this title shall require the readoption of
ordinances heretofore validly adopted. Local
authorities may adopt ordinances
incorporating by reference the appropriate
provisions of state law before the effective
date of such state law; provided that such
local ordinances do not become effective
before the effective date of the state law.
The provisions of this section are
declaratory of existing law.
- 2 -
which fixes the maximum penalty for driving while intoxicated at
$2,500. Pruett contends that Tazewell Code § 16-2, which
incorporates the $2,500 penalty provisions of Virginia Code
§ 18.2-270, violates Tazewell Code § 2-246, a provision of the
town charter which limits the power of the town "[t]o prescribe
penalties for the violation of any town ordinance, rule or
regulation, not exceeding five hundred dollars or twelve months'
imprisonment in jail, or both." Tazewell Code § 2-246. We
disagree.
Significantly, in Code § 46.2-1313 the Virginia General
Assembly expressly granted localities the power to adopt by
incorporation Code § 18.2-266 et seq., the state statutes
prohibiting driving a motor vehicle while intoxicated. 2 The town
incorporated the driving while intoxicated statutes pursuant to
the Commonwealth's specific grant of authority in Virginia Code
§ 46.2-1313. See Tazewell Code § 16-2. Virginia Code § 46.2-1313
provides that local government "may incorporate appropriate
provisions . . . of Chapter 7 of Title 18.2 into such ordinances
by reference." See Commonwealth v. Howell, 20 Va. App. 732, 734,
460 S.E.2d 614, 615 (1995) ("Under Code § 46.1-188 [replaced by
Code § 46.2-1313], localities were given the authority to
'incorporate appropriate provisions of Article 2 (§ 18.2-266 et
2
Code § 15.1-132 offers an alternative statutory grant of
power to adopt Code § 18.2-266 et seq. Although Title 15.2
repealed Title 15.1, Code § 15.2-101 specifically states that the
repeal of Title 15.1 will not affect the powers of any locality
regarding any ordinance adopted prior to December 1, 1997. Code
§ 15.1-132 authorized Tazewell to enact Tazewell Code § 16-2 in
1994, and pursuant to the express language of Code § 15.2-101,
Code § 16-2 remains in effect.
- 3 -
seq.) of Chapter 7 of Title 18.2 into such ordinance by
reference.'"); Commonwealth v. Rivera, 18 Va. App. 103, 107, 442
S.E.2d 410, 412 (1994) (stating that § 15.1-132 (repealed) and
§ 46.1-188 (replaced by § 46.2-1313) "expressly allow local
authorities to enact local ordinances prohibiting driving a motor
vehicle while under the influence of alcohol and the incorporation
by reference of appropriate provisions of state law into such
local ordinances").
Pruett's argument that the $500 limitation applies to
Tazewell's DUI ordinance fails to appreciate that Tazewell Code
§ 2-246, viewed in context is part of a separate enumeration of
power to enact ordinances independent of the specific grant of
power under which Tazewell was acting. "[A] fundamental rule of
statutory construction requires that courts view the entire body
of legislation and the statutory scheme to determine 'the true
intention of each part.'" Virginia Real Estate Bd. v. Clay, 9 Va.
App. 152, 157, 384 S.E.2d 622, 625 (1989) (citations omitted).
The $500 limitation described in § 2-246 applies specifically to
penalties prescribed pursuant to § 2-246 which is part of the
town's "Power to regulate the health, safety and welfare of the
town." Tazewell Code § 2-4. The town's "Power to regulate the
health, safety and welfare" as articulated in Tazewell Code § 2-4
exists independent of, and in addition to, powers granted in other
sections of its charter or specifically granted to municipal
corporations by the state. Because the town did not rely upon
Tazewell Code § 2-246 for authority to enact Tazewell Code § 16-2,
- 4 -
the $500 limitation of Tazewell Code § 2-246 has no bearing on the
town's authority to enact Tazewell Code § 16-2. Moreover, Code
§ 2-1 of Tazewell's charter expressly provides that in addition to
the town's general grant of powers in its charter, there is
conferred on and vested in the Town . . . all
other powers which are now or may hereafter be
conferred upon or delegated to towns under the
Constitution and the laws of the Commonwealth
. . . and no enumeration of powers in this
Charter shall be held to be exclusive but
shall be in addition to this general grant of
power.
(Emphasis added).
Because Virginia Code § 46.2-1313 grants authority for
localities to incorporate the Virginia Code provisions
criminalizing and fixing penalties for driving while intoxicated,
the town's incorporation of Virginia Code § 18.2-266 et seq. is
not governed by the $500 limitation on prescribing penalties under
Tazewell Code § 2-246. Accordingly, Tazewell Code § 16-2 does not
violate the prohibition of prescribing penalties in excess of $500
as provided in Tazewell Code § 2-246.
II. SINGLE SUBJECT REQUIREMENT OF TAZEWELL CODE § 3–8
The town's charter requires that the town council confine
all ordinances to a single subject. See Tazewell Code § 3-8.
Pruett contends that Tazewell Code § 16-2 violates this
prohibition because it incorporates and adopts statutory
provisions from Titles 16.1, 18.2, and 46.2, three different
titles of the Virginia Code which address several subject
matters.
For the reasons set forth in Part I, Tazewell, in enacting
Code § 16-2, was acting under authority expressly granted by the
- 5 -
Commonwealth in Code § 46.2-1313 and was not acting under its
general grant of authority in its charter to enact ordinances.
Code § 46.2-1313 expressly empowers towns, including Tazewell, to
enact an ordinance incorporating the appropriate provisions of
the Motor Vehicle Code and the DUI provisions of Code § 18.2-266
et seq. and Article 9 (Code § 16.1-278 et seq.) of the Juvenile
Code to enable Tazewell to deal with juvenile offenders. The
state statute expressly authorized the Town of Tazewell to adopt
these provisions as its ordinance regulating misdemeanor motor
vehicle violations and infractions.
Moreover, Code § 16-2 does not violate the single subject
prohibition of Tazewell's charter. "'[T]he primary objective of
statutory construction is to ascertain and give effect to
legislative intent.'" Zamani v. Commonwealth, 26 Va. App. 59,
63, 492 S.E.2d 854, 856 (1997) (quoting Crews v. Commonwealth, 3
Va. App. 531, 535-36, 352 S.E.2d 1, 3 (1987)). The language of
Tazewell Code § 3-8 is:
Except in dealing with questions of
parliamentary procedure the council shall act
only by ordinance or resolution, and all
ordinances except ordinances making
appropriations, or authorizing the
contracting of indebtedness or issuance of
bonds or other evidence of debt, shall be
confined to one subject. Ordinances making
appropriations or other obligations and
appropriating the money to be raised thereby
shall be confined to those subjects
respectively.
To determine the intent of the legislature in enacting this
provision in Tazewell's charter, we look by analogy, to the
similar provision in the Virginia Constitution: "No law shall
embrace more than one object, which shall be expressed in its
- 6 -
title." Va. Const. art. IV, § 12. Commenting on this similar
language in the Virginia Constitution, the Virginia Supreme Court
observed that:
"[H]istorically, [these provisions] were
designed to prevent several abuses in the
legislative process: (1) log-rolling,
whereby two or more blocs (which might
separately be minorities in the legislative
body) combine forces on a bill containing
several unrelated features, no one of which
by itself could command a majority; [and] (2)
lack of notice to legislators who, but for
the one object requirement, might be unaware
of the real contents of the bill . . . ."
See State Bd. of Health v. Chippenham Hosp., 219 Va. 65, 74, 245
S.E.2d 430, 435-36 (1978) (quoting The Constitution of Virginia:
Report of the Commission on Constitutional Revision, 148 (1969)).
We find that Article IV, Section 12 of the Virginia Constitution
and Tazewell Code § 3-8 share the same legislative purpose.
Therefore, we look to prior constructions of the constitutional
provision to shed light on Tazewell's charter provision.
In construing Article IV, Section 12 of the Constitution of
Virginia, our Supreme Court said:
"When the title is general, as it may
be, all persons interested are put upon
inquiry as to anything in the body of the act
which is germane to the subject expressed;
but when the title is restrictive, and
confined to a special feature of a particular
subject, the natural inference is that other
features of the same general subject are
excluded."
Chippenham Hosp., 219 Va. at 70-71; 245 S.E.2d at 433 (quoting
Fidelity Ins. v. Shenandoah Valley R.R. Co., 86 Va. 1, 6, 9 S.E.
759, 761 (1889)). Further, the Court observed that "'[i]f the
title be not misleading and if those things are done which are
- 7 -
germane to it, that is enough.'" Id. at 71, 245 S.E.2d at 434
(quoting Commonwealth v. Dodson, 176 Va. 281, 305-06, 11 S.E.2d
120, 131-32 (1940)).
Here, nothing in the body of the ordinance was outside the
scope of the ordinance's title: "Ordinance Adopting Certain
Provisions of the Code of Virginia." Thus, the title fairly
noticed all councilpersons as to the contents of the ordinance.
Additionally, the three code sections incorporated by reference
in Tazewell Code § 16-2 share a common function. Article 2,
Chapter 7, Title 18.2, proscribes and sets the penalties for
driving while intoxicated; Title 46.2 sets forth general
provisions regarding regulation of motor vehicles including
suspension and revocation of licenses; and Article 9, Chapter 11,
Title 16.1, concerns dispositions of the juvenile and domestic
relations district courts which, among other things, instructs
the courts in penalizing juveniles for driving infractions.
Tazewell Code § 16-2, which deals exclusively with motor
vehicle offenses, confined itself to a logical subject matter
reflected in both the body of the ordinance and the title by
which the town passed the ordinance. Its drafting does not
portend abuse of the legislative process. Accordingly, we find
that it complies with the requirements of Tazewell Code § 3-8,
the provisions limiting ordinances to a single subject.
- 8 -
CONCLUSION
The Council of the Town of Tazewell did not violate its
charter in enacting § 16-2. Accordingly, Pruett's conviction for
violating Tazewell Code § 16-2 is affirmed.
Affirmed.
- 9 -