The Virginia Supreme Court Friday morning, in a unanimous ruling, declared
Virginia's Republican Party's notorious 'transportation' plan
The ruling immediately quashes plans both here and in nothern Virginia by the rogue, un-elected agencies to
implement planned new taxes and fees this April 1st.
The Court all but finished off the authorities created by the rouge republican
General Assembly members who were trying to charge the public for roads who's
main purpose was to serve as feeders to want-to-be tourist attractions, rather
than having the tourist industry itself paying for these projects via higher
taxes on services provided to the tourist.
This holding by the Court may also force the General Assembly to revisit impact fees charged to developers. The General assembly turned this down earlier this year.
Local citizen previous efforts, including a case heard by Virginia Beach's
Circuit Court [Judge West], to kill the plan failed and as a consequence to
these failures this joint action was filed challenging the constitutionality of
PRESENT: All the Justices
ROBERT G. MARSHALL, ET AL.
v. Record No.
NORTHERN VIRGINIA TRANSPORTATION
AUTHORITY, ET AL.
BOARD OF SUPERVISORS OF LOUDOUN
v. Record No. 071979
NORTHERN VIRGINIA TRANSPORTATION
AUTHORITY, ET AL.
JUSTICE S. BERNARD GOODWYN
February 29, 2008
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Benjamin N. A. Kendrick, Judge
In this appeal, we are asked to consider several challenges to
Chapter 896 of the 2007 Acts of Assembly. Our consideration of two particular
issues resolves the matters presented. Those issues are: (1) whether Chapter 896
violates Article IV, Section 12 of the Constitution of Virginia ("the
Constitution"); and (2) whether the Constitution prohibits the General
Assembly from delegating its power of taxation to a political subdivision
charged with the responsibility of addressing regional transportation issues
affecting certain localities of the Commonwealth, when that political
subdivision is not a county, city, town, or regional government, and is not an
elected body. 2
I. PROCEDURAL HISTORY
On July 13, 2007, the Northern Virginia Transportation Authority
("NVTA") instituted a bond validation proceeding in the Circuit Court
of Arlington County under Article 6 of the Public Finance Act of 1991, Code §§
15.2-2650 through -2658. NVTA requested, among other things, that the circuit
court determine the validity of certain bonds that NVTA proposed to issue
("the bonds"), and the constitutionality of certain taxes and fees
that NVTA was authorized to impose, under Chapter 896 of the 2007 Acts of
Assembly ("Chapter 896"), to finance the bonds.
The Commonwealth, on behalf of the Governor, the Attorney
General, and the Speaker of the House of Delegates (collectively, "the
Commonwealth"), intervened in the bond validation proceeding as plaintiffs
in support of NVTA. The Board of Supervisors of Loudoun County, Virginia ("Loudoun
County") filed responsive pleadings as a defendant opposing validation of
the bonds. A group of citizens living in the area encompassed by NVTA, Robert G.
Marshall, John Berthoud, Richard H. Black, Catherine Ann Marshall, Edmund
Charles Miller, Marcia S. Miller, Kristina Rasmussen, Phillip A. Rodokanakis,
and Frank W. Smerbeck ("the Marshall Defendants"), also filed a joint
answer opposing the validation. Additionally, the Marshall Defendants filed a 3
counterclaim and moved for summary judgment alleging, in part,
that the bonds and Chapter 896, or portions thereof, violate the Constitution.
After conducting a hearing, the circuit court granted NVTA its
requested relief, dismissed the remaining counts of the Marshall Defendants’
counterclaim, and dismissed the Marshall Defendants’ motion for summary
judgment. The circuit court held, in relevant part, that the enactment of
was within the legislative power of the Virginia General
Assembly set forth in Article IV of the Constitution of Virginia, and does not
violate any Section of that Article, and the NVTA Act, as amended by Chapter
896, and Virginia Code §§ 46.2-755.1, 46.2-755.2, 46.2-1167.1, 58.1-605,
58.1-606, 58.1-802.1, 58.1-2402.1, 58.1-3825.1, as enacted, do not violate any
provisions of the Constitution of Virginia; and
. . . .
that the regional fees and taxes and all other means provided
for payment of the Bonds are valid and legal and meet the requirements of the
Constitution of Virginia and all applicable statutes . . . .
The court, in granting the relief prayed for in the complaint,
ruled that the bonds are valid and legal. Loudoun County and the Marshall
Defendants appeal from the circuit court’s judgment.
II. FACTUAL BACKGROUND 4
In 2002, the General Assembly created NVTA as a political
subdivision of the Commonwealth. See Code § 15.2-4830. NVTA encompasses
the Counties of Arlington, Fairfax, Loudoun, and Prince William, and the Cities
of Alexandria, Fairfax, Falls Church, Manassas, and Manassas Park ("the
Northern Virginia localities") which are designated by name in the statute.
Code § 15.2-4831. The governing board of NVTA consists of 14 voting members and
two non-voting members. See Code § 15.2-4832.
The voting members of NVTA’s governing board are the chief
elected officers of the governing body for each named county and city, two
members of the House of Delegates appointed by the Speaker of the House, one
member of the Senate appointed by the Senate Committee on Rules, and two
citizens appointed by the Governor, all of whom reside in the nine localities
embraced by NVTA. See Code § 15.2-4832. Any chief elected officer of a
governing body of a member city or county may name a designee, but each such
designee must be "a current elected officer" of the applicable
governing body. Id. Decisions of NVTA must be approved by a
"super-majority" of the voting members. See Code § 15.2-4834.
NVTA’s powers are limited by its enabling legislation to
activities pertaining to regional transportation. See Code §§
15.2-4830, -4838, and -4840. NVTA is empowered, among 5
other things, to prepare a regional transportation plan for the
Northern Virginia localities and to construct or acquire transportation
facilities that are either specified in the plan or constitute a regional
priority. Id. NVTA may issue bonds to finance such projects. See Code
§§ 15.2-4839, -4519.
In 2007, both houses of the General Assembly passed and the
Governor signed the legislation that became Chapter 896. The title to Chapter
896 states, in part, that the act will amend and reenact numerous provisions of
the Code, with all such enactments "relating to transportation."A copy of Chapter 896 of the 2007 Acts
of Assembly is available for viewing, downloading and printing from the General
Assembly’s website as of the date of this opinion at
§ 58.1-2402.1); and an additional transient occupancy tax (Code
§ 58.1-3825.1). For each such tax and fee, the General Assembly specified the
subject of taxation and fixed the amount or rate.
the following Internet URL: http://leg1.state.va.us/cgi-bin/legp504.exe?071+ful+CHAP0896.
The General Assembly designated the revenue raised from
imposition of the regional taxes and fees for the sole purpose of financing
bonds and providing revenue for transportation projects and purposes in the nine
localities embraced by NVTA. Code §§ 15.2-4831, -4838.1. Chapter 896 also
contains a provision directing that should a court of competent jurisdiction
hold that any portion of the Chapter is unconstitutional, the remaining portions
of the Chapter shall remain in effect. 2007 Acts ch. 896, cl. 23.
After conducting a public hearing, NVTA’s governing body voted
to impose the regional taxes and fees authorized by Chapter 896, effective
January 1, 2008. The governing body also adopted a resolution authorizing the
issuance of bonds of NVTA in a principal amount not to exceed $130 million, to
be paid from the pledgeable NVTA revenues, which include revenues from the
regional taxes and fees.
III. ANALYSIS 7
We have long recognized the principle that the power of a
government to tax its people and their property is essential to government’s
very existence. Southern Ry. Co. v. Commonwealth, 211 Va. 210, 220, 176
S.E.2d 578, 584 (1970); Chesapeake & Potomac Tel. Co. v. City of Newport
News, 196 Va. 627, 638, 85 S.E.2d 345, 351 (1955); City of Fredericksburg
v. Sanitary Grocery Co., 168 Va. 57, 64, 190 S.E. 318, 321 (1937); Vaughan
v. City of Richmond, 165 Va. 145, 148, 181 S.E. 372, 374 (1935); City of
Norfolk v. Chamberlain, 89 Va. (14 Hans.) 196, 226, 16 S.E. 730, 740 (1892).
This power to tax, which is inherent in every sovereign state government, is a
legislative power that the Constitution vests in the General Assembly. Town
of Danville v. Shelton, 76 Va. (1 Hans.) 325, 327-28 (1882); see
Chamberlain, 89 Va. (14 Hans.) at 227, 16 S.E. at 739.
Established principles govern our determination whether the
General Assembly has adhered to the Constitution in exercising its legislative
power. The exercise of that power clearly encompasses the levying of taxes.
Every law enacted by the General Assembly carries a strong presumption of
validity, and courts are concerned only with the issue whether a legislative
enactment has been rendered according to, and within, constitutional
requirements. City of Newport News v. Elizabeth City County, 189 Va. 825,
839, 55 S.E.2d 56, 64 8
(1949). The separate question regarding the wisdom and the
propriety of a statute are matters within the province of the legislature. Id.
at 831, 55 S.E.2d at 60.
We will not invalidate a statute unless that statute clearly
violates a provision of the United States or Virginia Constitutions. In re
Phillips, 265 Va. 81, 85-86, 574 S.E.2d 270, 272 (2003); City Council of
Emporia v. Newsome, 226 Va. 518, 523, 311 S.E.2d 761, 764 (1984). Here, we
are only concerned with the applicable provisions of the Constitution of
Virginia. We give the Constitution a liberal construction in order to sustain
the enactment in question, if practicable. Heublein, Inc. v. Department of
Alcoholic Beverage Control, 237 Va. 192, 195, 376 S.E.2d 77, 78 (1989). We
also interpret statutes in a manner that avoids a constitutional question
whenever possible. Yamaha Motor Corp. v. Quillian, 264 Va. 656, 665, 571
S.E.2d 122, 126-27 (2002); Virginia Soc’y for Human Life, Inc. v. Caldwell,
256 Va. 151, 156-57, 500 S.E.2d 814, 816-17 (1998). The party challenging an
enactment has the burden of proving that the statute is unconstitutional, and
every reasonable doubt regarding the constitutionality of a legislative
enactment must be resolved in favor of its validity. Hess v. Snyder Hunt
Corp., 240 Va. 49, 53, 392 S.E.2d 817, 820 (1990). See Blue Cross of
Virginia v. Commonwealth, 221 Va. 349, 358-59, 269 S.E.2d 827, 832-33 9
(1980); see also Phillips, 265 Va. at 85-86, 574 S.E.2d
An act is unconstitutional if it is expressly prohibited or is
prohibited by necessary implication based upon the provisions of the
Constitution of Virginia or the United States Constitution. Dean v.
Paolicelli, 194 Va. 219, 227, 72 S.E.2d 506, 511 (1952); Kirkpatrick v.
Board of Supervisors, 146 Va. 113, 126, 136 S.E. 186, 190 (1926); Albemarle
Oil & Gas Co. v. Morris, 138 Va. 1, 7, 121 S.E. 60, 61 (1924); Button
v. State Corp. Comm’n, 105 Va. 634, 636, 54 S.E. 769, 769 (1906); Smith
v. Commonwealth, 75 Va. (1 Matt.) 904, 907 (1880); see also School Bd. v.
Shockley, 160 Va. 405, 413, 168 S.E. 419, 422 (1933). However, when a court,
in determining the constitutionality of a statute, departs from the express
limitations of the Constitution and relies instead on implied constitutional
restrictions, the legislative usurpation must be very clear and palpable to
justify the court’s holding that an enactment is unconstitutional. Whitlock
v. Hawkins, 105 Va. 242, 249, 53 S.E. 401, 403 (1906).
The principle of severability is also applicable to the various
provisions of an enactment. The General Assembly expressly has provided that any
unconstitutional provisions of an enactment will be severed from its remaining
valid provisions, unless the enactment specifically states that its 10
provisions may not be severed or that the provisions must
operate in accord with one another. Code § 1-243; see also 2007 Acts ch.
896, cl. 23.
Applying these principles, we first examine the Marshall
Defendants’ claim that Chapter 896 violates Article IV, Section 12 of the
Constitution. This Section provides that:
No law shall embrace more than one object, which shall be
expressed in its title. Nor shall any law be revived or amended with reference
to its title, but the act revived or the section amended shall be reenacted and
published at length.
The Marshall Defendants argue that Chapter 896 violates this
Constitutional provision in two respects: (1) the title of Chapter 896 is not
sufficiently inclusive because although that Chapter affects 12 titles of the
Code and contains 23 enactment clauses, some of those enactment clauses and Code
titles are not referenced in the title to Chapter 896; and (2) Chapter 896
violates the "single object rule" because it contains matters
unrelated to transportation.
As examples in support of their second argument, the Marshall
Defendants note that Chapter 896 provides for such diverse subjects as funding
salaries for certain professors at Virginia Polytechnic Institute and State
University ("Virginia Tech"), funding the Virginia Truck and
Ornamentals Research Station, mandating impact fees on new development, and
dedicating revenues from a statewide tax increase to the 11
Virginia Agricultural Foundation Fund. Thus, according to the
Marshall Defendants, Chapter 896 combines so many diverse matters in a single
act that legislators and the public were likely to have been misled by its
title, and that the various elements of Chapter 896 lack a natural and necessary
connection to each other.
NVTA points out that the subjects embraced in Chapter 896 are
congruous and have a natural connection with, or are germane to, transportation,
and that the Marshall Defendants’ listing of various items in Chapter 896 that
they claim are unrelated to transportation are out of context; NVTA posits how
each is germane to or has a connection with transportation. For example, NVTA
points out that the changes to the statutes related to the Virginia Truck and
Ornamentals Research Station, salaries for Virginia Tech professors and the
Virginia Agricultural Foundation Fund were required because they are partially
funded by the fuels tax and it was necessary to conform the existing statutes to
reflect the increase in that tax authorized by Chapter 896.
This Court’s jurisprudence with respect to Article IV, Section
12 is well established. "The fact that many things of a diverse nature are
authorized or required to be done in the body of the act, though not expressed
in its title is not objectionable, if what is authorized by the act is germane
the object expressed in the title, or has a legitimate and
natural association therewith, or is congruous therewith, the title is
sufficient." Town of Narrows v. Board of Supervisors, 128 Va. 572,
582-83, 105 S.E. 82, 85 (1920). Thus, Article IV, Section 12 requires that
subjects encompassed in a statute, but not specified in the statute’s title,
be congruous, and have a natural connection with, or be germane to, the subject
stated in the title. Commonwealth v. Brown, 91 Va. 762, 772, 21 S.E. 357,
360 (1895) (construing former Va. Const. art. V, § 15 (1869)). This mandate,
however, does not require that an act’s title include an index to each
provision of the act. Southern Ry. Co. v. Russell, 133 Va. 292, 298, 112
S.E. 700, 702 (1922) (construing former Va. Const. art. IV, § 52 (1902)).
Acts of the General Assembly enjoy a presumption of
constitutionality both as to title and to text. State Bd. of Health v.
Chippenham Hosp., Inc., 219 Va. 65, 71, 245 S.E.2d 430, 434 (1978). "[I]f
there is doubt as to the sufficiency of the title, the doubt must be resolved in
favor of its sufficiency, as courts will not declare an act of the legislature
unconstitutional unless it is plainly so." Commonwealth v. Dodson,
176 Va. 281, 305-06, 11 S.E.2d 120, 131 (1940) (citations omitted); accord
State Bd. of Health, 219 Va. at 71, 245 S.E.2d at 434. Due to the nature of
Article IV, Section 12, the analysis of a particular act must
necessarily "stand on its own," and we must look to both the body and
to the title of the act under scrutiny to determine whether the act violates the
Constitution. State Bd. of Health, 219 Va. at 72, 245 S.E.2d at 434.
The title to Chapter 896 states, in part, that the act will
amend and reenact numerous provisions of the Code, with all such enactments
"relating to transportation." These and other references in the title
adequately describe the subject matter of the body of the act, and the act’s
provisions are germane to the object expressed in the title. See Town of
Narrows, 128 Va. at 582-83, 105 S.E. at 85; Brown, 91 Va. at 772, 21
S.E. at 360.
Our examination of the subjects included in Chapter 896 reveals
that those subjects are congruous and have a natural connection with the subject
of transportation expressed in the title. The particular statutes and changes to
statutes identified by the Marshall Defendants do not lead us to a different
conclusion. Some of those changes were required because the matters addressed in
the existing statutes were partially funded by taxes related to transportation,
and it was necessary to conform those statutes to reflect the increase in taxes
authorized by Chapter 896. Other statutes and changes improve or fund
transportation or were necessary 14
to implement or modify the effects of the provisions of Chapter
896 on existing transportation statutes. Therefore, we hold that the circuit
court correctly determined that Chapter 896 does not violate Article IV, Section
12 of the Constitution.
We next consider the argument of the Marshall Defendants and
Loudoun County that Chapter 896 violates other provisions of the Constitution.
In essence, the Marshall Defendants and Loudoun County contend that by
authorizing NVTA to impose the regional taxes and fees, Chapter 896 effects a
constitutionally prohibited delegation of the General Assembly’s taxing
authority to a political subdivision whose governing board is not elected by the
citizens to serve in that capacity.
NVTA and the Commonwealth respond that NVTA’s power to impose
the regional taxes and fees, as authorized by Chapter 896, does not constitute a
"true" delegation of legislative authority because the General
Assembly specified the subject of the regional taxes and fees, dictated the
amount or rate of the taxes and fees, and mandated that the revenue derived be
spent in a certain manner. NVTA and the Commonwealth contend that the General
Assembly retains authority and control over the regional taxes and fees, and
remains free to amend, repeal, or restrict NVTA’s power to impose them. Thus,
and the Commonwealth maintain that the Constitution does not
prohibit the General Assembly from authorizing NVTA to impose the regional taxes
and fees within the restrictions prescribed in Chapter 896. We disagree with the
arguments advanced by NVTA and the Commonwealth.
Initially, we observe that neither NVTA nor the Commonwealth
disputes that the main purpose of the regional taxes and fees, authorized in
Chapter 896, is to raise revenue. We consistently have held that when the
primary purpose of an enactment is to raise revenue, the enactment will be
considered a tax, regardless of the name attached to the act. See Tidewater
Ass’n of Homebuilders, Inc. v. City of Virginia Beach, 241 Va. 114,
120-21, 400 S.E.2d 523, 527 (1991); County of Loudoun v. Parker, 205 Va.
357, 360-61, 136 S.E.2d 805, 808 (1964); Board of Supervisors v. American
Trailer Co., 193 Va. 72, 76, 68 S.E.2d 115, 118-19 (1951). In accordance
with this authority, we conclude that each of the regional taxes and fees
provided in Chapter 896 constitutes a tax, because they all are designed to
produce revenue to be used for the purpose of financing bonds and supplying
revenue for transportation purposes in the Northern Virginia localities. Code
§§ 15.2-4838.1(C)(3), –4840(12). Thus, we must consider whether by those
provisions of Chapter 896, the 16
General Assembly has delegated a portion of its taxing authority
The General Assembly has delegated its authority when it enacts
a law authorizing another entity to determine whether the law will be imposed. See
Chapel v. Commonwealth, 197 Va. 406, 413-14, 89 S.E.2d 337, 342 (1955); Mumpower
v. Housing Auth. of Bristol, 176 Va. 426, 454-55, 11 S.E.2d 732, 743 (1940).
Here, although the General Assembly specified in Chapter 896 the form,
substance, and use of the regional taxes and fees, the General Assembly retained
no authority to decide whether the regional taxes and fees would be imposed,
leaving that decision solely to NVTA. See Code § 15.2-4840(12). Although
the General Assembly can later pass a law to amend or repeal NVTA’s authority
to impose taxes, this does not negate the fact that the sole discretion to
impose the regional taxes and fees presently rests with NVTA. Therefore, we hold
that because the regional taxes and fees specified in Chapter 896 may be imposed
in the sole discretion of NVTA, the General Assembly has delegated its taxing
authority to NVTA with regard to the imposition of those taxes and fees.
We must now determine whether the General Assembly’s
delegation of this taxing authority to NVTA violates the Constitution. The
Constitution of Virginia "is not a grant of legislative powers to the
General Assembly, but is a 17
restraining instrument only, and, except as to matters ceded to
the federal government, the legislative powers of the General Assembly are
without limit." Harrison v. Day, 201 Va. 386, 396, 111 S.E.2d 504,
511 (1959); accord City of Roanoke v. Elliott, 123 Va. 393, 406, 96 S.E.
819, 824 (1918). As we have stated, the General Assembly may enact any law or
take any action "not prohibited by express terms, or by necessary
implications by the State Constitution or the Constitution of the United
States." Kirkpatrick, 146 Va. at 126, 136 S.E. at 190.
In determining the constitutionality of the General Assembly’s
delegation of taxing authority to NVTA, we consider the explicit language of the
Constitution. See Town of South Hill v. Allen, 177 Va. 154, 164-65, 12
S.E.2d 770, 774 (1941). That explicit language demonstrates the special status
that the legislative taxing power occupies in the Constitution, and reflects the
greater restrictions that the Constitution places on the General Assembly’s
exercise of the taxing power. The following provisions of the Constitution guide
our analysis in this case.
Article I, Section 6 of the Constitution states, in relevant
that all men . . . cannot be taxed . . . without their own
consent, or that of their representatives duly elected . . . . 18
Article IV, Section 1 of the Constitution provides that:
The legislative power of the Commonwealth shall be vested in a
General Assembly, which shall consist of a Senate and House of Delegates.
Article IV, Section 11 of the Constitution states, in relevant
No bill which . . . imposes, continues, or revives a tax, shall
be passed except by the affirmative vote of a majority of all the members
elected to each house, the name of each member voting and how he [or she] voted
to be recorded in the journal.
Article IV, Section 14(5) of the Constitution states, in
relevant part, that:
The General Assembly shall not enact any local, special, or
private law in the following cases:
. . . .
(5) For the assessment and collection of taxes, except as to
animals which the General Assembly may deem dangerous to the farming interests.
Article VII, Section 2 of the Constitution provides, in relevant
The General Assembly may also provide by special act for the
organization, government, and powers of any county, city, town, or regional
government, including such powers of legislation, taxation, and assessment as
the General Assembly may determine . . . .
Article VII, Section 7 of the Constitution provides, in relevant