Marshall v. Northern Virginia Transp. Auth.
State Court (South Eastern Reporter)2/29/2008
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Full Opinion
PRESENT: All the Justices
ROBERT G. MARSHALL, ET AL.
OPINION BY
v. Record No. 071959 JUSTICE S. BERNARD GOODWYN
February 29, 2008
NORTHERN VIRGINIA TRANSPORTATION
AUTHORITY, ET AL.
BOARD OF SUPERVISORS OF LOUDOUN
COUNTY
v. Record No. 071979
NORTHERN VIRGINIA TRANSPORTATION
AUTHORITY, ET AL.
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.
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
2
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 Chapter
896
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
3
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
4
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.” 1 Under various
provisions contained in Chapter 896, NVTA has the authority,
in its sole discretion, to impose seven regional taxes and
fees (“the regional taxes and fees”).
The regional taxes and fees NVTA is authorized to impose
within the Northern Virginia localities are: an additional
annual vehicle license fee (Code § 46.2-755.1); an additional
initial vehicle registration fee (Code § 46.2-755.2); an
additional vehicle inspection fee (Code § 46.2-1167.1); a
local sales and use tax on vehicle repairs (Code §§ 58.1-
605(K)(1), -606(H)(1)); a regional congestion relief fee (Code
§ 58.1-802.1); a local rental car transportation fee (Code
1
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
5
§ 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 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
the following Internet URL: http://leg1.state.va.us/cgi-
bin/legp504.exe?071+ful+CHAP0896.
6
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
7
(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
8
(1980); see also Phillips, 265 Va. at 85-86, 574 S.E.2d at
272.
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
9
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
10
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 to
11
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
12
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
13
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, NVTA
14
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
15
General Assembly has delegated a portion of its taxing
authority to NVTA.
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
16
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 part
that all men . . . cannot be taxed . . . without
their own consent, or that of their representatives
duly elected . . . .
17
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 part, that:
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 part, that:
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 part, that:
18
No ordinance . . . imposing taxes . . . shall be passed
except by a recorded affirmative vote of a majority of
all members elected to the governing body.
We view these provisions of the Constitution with special
regard for the detailed and explicit oversight that the
framers provided regarding the General Assembly’s exercise and
delegation of its legislative power of taxation. Article I,
Section 6 is contained in the Constitution’s Bill of Rights,
and it prohibits taxation of citizens without their consent or
that of their elected representatives. We observe that
Article IV, Section 1 places the legislative power of the
Commonwealth in the General Assembly.
However, the people of Virginia approved a Constitution
that places restrictions on the General Assembly’s exercise of
the taxing power. In fact, greater restrictions are placed on
the taxing power than are placed on the exercise of most other
types of legislative power. For example, under Article IV,
Section 11, the General Assembly is prohibited from enacting
legislation imposing a tax without an affirmative vote of a
majority of all members elected to each house. 2
2
In contrast, most laws that do not involve the taxing,
appropriation, or other related powers of the General Assembly
may be enacted merely by a majority of those members voting in
each house, provided that the majority is comprised of at
least two-fifths of the members elected to that house. See
Va. Const. art. IV, § 11(d).
19
The General Assembly is directly prohibited from enacting
“any local, special, or private law . . . [f]or the assessment
and collection of taxes.” Va. Const. art. IV, § 14(5). There
is, however, an exception to this specific prohibition. The
General Assembly may by special act delegate the power of
taxation to any county, city, town, or regional government.
See Va. Const. art. VII, § 2. NVTA is not a county, city,
town, or regional government, and thus it is not a political
subdivision to which the General Assembly may constitutionally
delegate its legislative taxing authority pursuant to Article
VII, Section 2. 3 Instead, NVTA is a political subdivision
narrowly charged by the General Assembly with the
responsibility of addressing certain regional transportation
issues in the Northern Virginia localities it encompasses.
See Code §§ 15.2-4830, -4838, and -4840. Furthermore,
exercise of the delegation of taxing authority by a county,
city, or town is restricted in that an ordinance or resolution
imposing taxes may not be passed except by recorded
3
The Marshall Defendants and Loudoun County did not argue
before the circuit court that Chapter 896 is a local or
special law that violates the provisions of Article IV,
Section 14(5), prohibiting the General Assembly from enacting
any local, special, or private law for the assessment and
collection of taxes. Thus, the question whether Chapter 896
is such a local or special law, and the resulting impact of
Article IV, Section 14(5) and Article VII, Section 2, is not
before us in these appeals. See Rule 5:25.
20
affirmative vote of a majority of all members elected to the
governing body. See Va. Const. art. VII, § 7.
Upon review of the constitutional provisions set forth
above, we conclude that the Constitution, in keeping with
rights enumerated in Article I, Section 6 of the
Constitution’s Bill of Rights, clearly contemplates that taxes
must be imposed only by a majority of the elected
representatives of a legislative body, with the votes cast by
the elected representatives being duly recorded. The
constraints that the citizens of Virginia have placed upon the
General Assembly regarding the imposition of taxes would be
rendered meaningless if the General Assembly were permitted to
avoid compliance with these constraints by delegating to NVTA
the decisional authority whether to impose taxes. Thus,
although the Constitution does not explicitly prohibit the
delegation of such decisional authority concerning the
imposition of taxes, that delegation is prohibited by
necessary implication, and the General Assembly may not
delegate its taxing power to a non-elected body such as NVTA.
See Shockley, 160 Va. at 415, 168 S.E. at 423.
The General Assembly also may not accomplish through
Chapter 896, indirectly, that which it is not empowered to do
directly, namely, impose taxes on the citizenry in the absence
of an affirmative, recorded vote of a majority of all members
21
elected to each body of the General Assembly. Thus, by
enacting Chapter 896, the General Assembly has failed to
adhere to the mandates of accountability and transparency that
the Constitution requires when the General Assembly exercises
the legislative taxing authority permitted by the
Constitution.
If payment of the regional taxes and fees is to be
required by a general law, it is the prerogative and the
function of the General Assembly, as provided by Article IV,
Section 1 of the Constitution, to make that decision, in a
manner which complies with the requirements of Article IV,
Section 11 of the Constitution. Accordingly, we hold that the
provisions of Chapter 896 permitting NVTA to impose the
regional taxes and fees are invalid because they violate the
Constitution. See, e.g., Commonwealth v. City of Newport
News, 158 Va. 521, 545-46, 164 S.E. 689, 696 (1932).
Therefore, such taxes and fees that NVTA has already imposed
are null and void.
We further hold that the circuit court erred in
validating the proposed bonds, which rely on the funding
mechanism of the regional taxes and fees. Because Chapter 896
specifically provides for the severance of any provisions in
the act that are determined to be unconstitutional, the
22
invalid portions of Chapter 896 are hereby severed from the
remainder of the act. 4 See Code § 1-243.
For these reasons, we will affirm in part, and reverse in
part, the circuit court’s judgment, and enter final judgment
in accordance with our stated holdings.
Affirmed in part,
reversed in part,
and final judgment.
4
Based on these holdings, we need not address the
remaining assignments of error.
23