Gandyv.Elizabeth City County

Supreme Court of Virginia. RichmondMar 2, 1942
179 Va. 340 (Va. 1942)

Cases citing this document

How cited

13 Citing cases

Summaries written by judges

Summaries

  • In Gandy v. Elizabeth City County, 179 Va. 340, 19 S.E.2d 97, we held that Sec. 15-10, sub-sections (1) and (2), was a general law.

    Summary of this case from Kilgour v. Board of Supervisors

  • In Gandy v. Elizabeth City County, 179 Va. 340, 344, 19 S.E.2d 97, we held that an act was general even though the legislative committee to which it was referred thought that the purpose to be accomplished could not be effected by a general law, and that a special act was necessary.

    Summary of this case from Newport News v. Elizabeth City Co.

Record No. 2495.

March 2, 1942.

Present, All the Justices.

1. STATUTES — Construction — Construction with Other Cognate Statutes. — If an act of the legislature 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.

2. STATUTES — Special and General Legislation — Test of a Special Law. — A law is "special" in a constitutional sense when by force of an inherent limitation it arbitrarily separates some persons, places or things from those upon which, but for such separation, it would operate.

3. STATUTES — Definitions — What Is a General Law. — 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.

4. STATUTES — Definitions — Distinction between General and Special Laws. — The test of a special law is the appropriateness of its provisions to the object that it excludes. It is not, therefore, what a law includes that makes it special, but what it excludes. If nothing be excluded that should be contained, the law is general. Within this distinction between a special and a general law, the question in every case is whether any appropriate subject is excluded to which the law, but for its limitations, would apply. If the only limitation contained in a law is a legislative classification of its objects, it is a general law.

5. CONSTITUTIONAL LAW — Powers of Legislature — To Determine What Public Convenience and Welfare Require. — The legislative department has the power to determine, within reasonable limits, what public convenience and public welfare require.

6. CONSTITUTIONAL LAW — Construction of Doubtful Statutes — Duty of Court to Sustain Constitutionality of Act. — It is the duty of the courts to sustain the constitutionality of an act in all doubtful cases.

7. CONSTITUTIONAL LAW — Equal Protection of Laws — All Persons Subject to Law Must Be Treated Alike. — An act is not invalid if within the sphere of its operation all persons subject to it are "treated alike, under like circumstances and conditions, both in the privileges conferred and in the liabilities imposed."

8. COUNTIES — Powers of Board of Supervisors — Code Section 2743b Must Be Read in Connection with Code Section 2743 — Case at Bar. — The instant case was an action based on an ordinance passed pursuant to section 2743b of the Code of 1936, vesting the boards of supervisors of counties adjoining cities having a certain population with the same general powers that are given councils of cities and towns. It was contended that section 2743b was a general statute and consequently that the provisions of section 2743 of the Code of 1936, requiring publication of notice of intention to propose ordinances for passage, applied to county boards acting under section 2743b.

Held: That section 2743b was a general law and must be read in connection with cognate general statutes and therefore the notice by publication required by section 2743 was necessary.

9. COUNTIES — Powers of Board of Supervisors — Code Section 2743b Unconstitutional — Case at Bar. — The instant case was an action based on an ordinance passed pursuant to section 2743b of the Code of 1936, vesting the boards of supervisors of counties adjoining cities having a certain population with the same general powers that are given councils of cities and towns. Section 2743b provides that all laws enacted by the board of supervisors pursuant to the section be submitted to and approved by the judge of the circuit court after hearing testimony, etc., showing the necessity for such laws.

Held: That the act plainly called for legislation by the court and the legislature could no more delegate to the judge this power than it could delegate to him the power to decide upon the necessity for one of its own acts and that therefore section 2743b was unconstitutional.

10. CONSTITUTIONAL LAW — Separation of Powers. — The legislative, judicial and executive departments of our State government are to be kept apart.

11. CONSTITUTIONAL LAW — Powers of Judiciary — Courts Have Nothing to Do with Wisdom and Necessity of Legislation. — An act may be unwise and unnecessary but with this courts have nothing to do.

12. JUDGMENTS AND DECREES — Judgments Nunc Pro Tunc — Office of Judgment. — The office of a nunc pro tunc judgment is to record some act of the court done at a former time which is not then carried into the record. A retroactive order of this character may be used to make the record speak the truth, but not to make it speak what had not been spoken, even though it ought to have been spoken.

13. JUDGMENTS AND DECREES — Judgments Nunc Pro Tunc — Must Relate Back to a Time When a Proper Judgment Could Have Been Reached — Case at Bar. — The instant case was an action based on an ordinance passed pursuant to section 2743b of the Code of 1936, vesting the boards of supervisors of counties adjoining cities having a certain population with the same general powers that are given councils of cities and towns. Section 2743b provides that all laws enacted by the board of supervisors pursuant to the section be submitted to and approved by the judge of the circuit court after hearing testimony, etc., showing the necessity for such laws. The ordinance was adopted on December 6, 1939, and approved by the court 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. On February 27, 1940, evidence had not been concluded.

Held: That in view of the fact that evidence had not been concluded on February 27, 1940, no proper judgment could have been reached and consequently the judgment entered on March 14, 1940, could not by relation back have taken effect on February 27, 1940.

Error to a judgment of the Circuit Court of Elizabeth City county. Hon. John Weymouth, judge presiding.

Reversed and dismissed.

The opinion states the case.

Montague Holt and H. H. Holt, for the plaintiff in error.

J. Wilton Hope, Jr. and Frank A. Kearney, for the defendant in error.


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, 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, 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. The act 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 those upon which, but for such separation, it would operate." Budd v. Hancock, 66 N.J.L. 133, 48 A. 1023.

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 Ex'rs v. Commonwealth, 126 Va. 603, 102 S.E. 77, 724, the "West fee bill" came under review. There compensation for court clerks was varied according to the population of the counties. Those having a population of 50,000 or over fell within the first class. Contention was made that such a provision constituted special legislation, but the court said not so, and quoted this with approval from Budd v. Hancock, supra:

"The test of a special law is the appropriateness of its provisions to the object that it excludes. It is not, therefore, what a law includes that makes it special, but what it excludes. If nothing be excluded that should be contained, the law is general. Within this distinction between a special and a general law, the question in every case is whether any appropriate subject is excluded to which the law, but for its limitations, would apply. If the only limitation contained in a law is a legislative classification of its objects, it is a general law."

This principle was reaffirmed in Bryce v. Gillespie, 160 Va. 137, 168 S.E. 653, where it was said:

[5-7] "The legislative department has the power to determine, within reasonable limits, what public convenience and public welfare require. The wisdom of its legislation is not the concern of the courts. It is the duty of the courts to sustain the constitutionality of an act in all doubtful cases. An act is not invalid if within the sphere of its operation all persons subject to it are `treated alike, under like circumstances and conditions, both in the privileges conferred and in the liabilities imposed.'"

See to the same effect Ex parte Settle, 114 Va. 715, 77 S.E. 496; Polglaise v. Commonwealth, 114 Va. 850, 76 S.E. 897; Cole v. Commonwealth, 169 Va. 868, 193 S.E. 517; and Carpel v. Richmond, 162 Va. 833, 175 S.E. 316.

This act applies not only to Elizabeth City county but to all other counties which measure up to its requirements. It is a general law and must be read in connection with other cognate general statutes. That is to say, the notice by publication required by Code, section 2743, is still necessary.

In the act of 1932 is this provision:

"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. * * *"

[9-13] Before this ordinance can go into effect, the circuit judge of the county to which it applies must hear evidence "showing the necessity for such laws." The establishment of this necessity is for the judge to decide. Plainly this is legislation. The Legislature can no more delegate to a judge this power than it could delegate to him the power to decide upon the necessity for one of its own acts.

We have had occasion to consider this subject at some length in Commonwealth v. Dodson, 176 Va. 281, 11 S.E.2d 120. We were of opinion there, as we are of opinion here, that the legislative, judicial and executive departments of our State government are to be kept apart. Constitution of Virginia, sections 5 and 39. The only exception to this rule is that written into the Constitution itself.

An act may be unwise and unnecessary but with this courts have nothing to do.

We have seen that the judge by a nunc pro tunc order of March 14, 1940, declared that his judgment, approving of the ordinance under review, should take effect as of February 27, 1940. The office of such a judgment is to record some act of the court done at a former time which is not then carried into the record. A retroactive order of this character may be used to make the record speak the truth, but not to make it speak what had not been spoken, even though it ought to have been spoken.

On February 27, 1940, this case was not ready for the judgment afterwards entered. Evidence had not been concluded, and until that had been done, no proper judgment could have been reached. It follows that no judgment entered on March 14, 1940, could, by relation back, have taken effect on February 27, 1940. Cox v. Hagan, 125 Va. 656, 100 S.E. 666; 15 R.C.L. 622, and note in 4 Am. St. Rep., at pp. 828-830.

There are other assignments of error — eighteen in all. Those which we have considered dispose of this case. Further discussion is not necessary.

The statute is unconstitutional in that it confers legislative power upon the presiding judge; the ordinance is invalid because the publication required by statute, Code, section 2743, was not had; and the judgment is invalid because it dates back to a time when the court was not in position to enter any final order.

We may say in passing that when the Legislature spoke of population and its density, it had in mind dry land and not that which perchance lay under some arm of the Atlantic ocean.

For reasons stated, the conviction of the defendant must be set aside and final order of dismissal entered.

Reversed and dismissed.