Wilmert Jack Pruett v. Town of Tazewell

• Court: Court of Appeals of Virginia
• Decided: March 30, 1999
• Docket: 0771983
• Status: Unpublished

Opinion

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 -