Present: Carrico, C.J., Compton, Lacy, Hassell, Keenan, and
Koontz, JJ., and Whiting, Senior Justice
TOWN OF MADISON, INC.
OPINION BY
v. Record No. 970642 SENIOR JUSTICE HENRY H. WHITING
February 27, 1998
CAROL W. FORD
FROM THE CIRCUIT COURT OF MADISON COUNTY
Lloyd C. Sullenburger, Judge
This case turns on whether a town zoning ordinance was
adopted in compliance with the second paragraph of the following
constitutional provision:
No ordinance or resolution appropriating money
exceeding the sum of five hundred dollars, imposing taxes,
or authorizing the borrowing of money shall be passed
except by a recorded affirmative vote of a majority of all
members elected to the governing body. . . .
On final vote on any ordinance or resolution, the name
of each member voting and how he voted shall be recorded.
Va. Const. Art. VII, § 7 (art. VII, § 7).
In a suit filed by the Town of Madison to enjoin Carol W.
Ford’s alleged violation of a town zoning ordinance, Ford
defended on the ground that the ordinance was void because it
had not been adopted in the manner prescribed by the paragraph
in question.
At an ore tenus hearing on Ford's special plea, the Town
introduced a copy of the minutes of an October 25, 1972 special
meeting of the town council in which the ordinance allegedly was
adopted. As pertinent, the minutes provide:
Town Council held a special meeting on the above date
following the joint hearing of the Planning Commission and
the Council. All members were present. . . .
Council was informed by the Planning Commission that they
[sic] have approved the Zoning Ordnance [sic]. . . .
Councilman Drake moved that the Town Council accept the
ordnance [sic] as presented by the Commission. Motion
seconded by Councilwoman Johnston and carried unanimously.
(Emphasis added).
After hearing the evidence and argument of both parties,
the court filed a written opinion in which it held that the
zoning ordinance was not enacted in accordance with the second
paragraph of art. VII, § 7 and was, therefore, void ab initio.
The Town appeals a final judgment entered in conformity with the
opinion.
Initially, the Town argues that the provisions of the
second paragraph of art. VII, § 7 apply only to the fiscal
ordinances referred to in its paragraph one. We disagree. In
our opinion, the express terms of the second paragraph make its
provisions clearly applicable to all ordinances, not just those
ordinances referred to in the first paragraph.
Nevertheless, the Town contends that the minutes of the
meeting show compliance with the second paragraph of art. VII,
§ 7 since the minutes recite that all members were present when
the meeting began and that the resolution was passed
unanimously. Ford responds that, because the name of each
council member and how he or she voted on the ordinance is not
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shown on the face of the minutes, the constitutional requirement
was not met.
First, we consider the effect of this constitutional
provision. The Virginia constitution is “the charter by which
our people have consented to be governed.” Coleman v. Pross,
219 Va. 143, 152, 246 S.E.2d 613, 618 (1978); see also Dean v.
Paolicelli, 194 Va. 219, 226, 72 S.E.2d 506, 510-11 (1952);
Staples v. Gilmer, 183 Va. 338, 350, 32 S.E.2d 129, 133 (1944).
Therefore, it is the fundamental law in Virginia. Terry v.
Mazur, 234 Va. 442, 450, 362 S.E.2d 904, 908 (1987).
Further, the Virginia Constitution is a restriction of
powers, establishing the limits of governmental action. See
Dean, 194 Va. at 226, 72 S.E.2d at 510-11; Mumpower v. Housing
Auth., 176 Va. 426, 445, 11 S.E.2d 732, 739 (1940) (restriction
of governmental powers). Thus, although the Town had the power
to enact zoning ordinances under the provisions of Code § 15.1-
486 (now Code § 15.2-2280), that power can only be exercised in
the manner expressly required by art. VII, § 7. See Town of
South Hill v. Allen, 177 Va. 154, 159, 12 S.E.2d 770, 772 (1941)
(municipal power exercisable only in manner set forth in
constitution); see also County of Fairfax v. Southern Iron
Works, Inc., 242 Va. 435, 446, 410 S.E.2d 674, 680 (1991).
If a constitutional provision is plain and unambiguous, we
do not construe it, but apply it as written. Scott v.
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Commonwealth, 247 Va. 379, 384, 443 S.E.2d 138, 141 (1994);
Thomson v. Robb, 229 Va. 233, 239, 328 S.E.2d 136, 139 (1985);
Harrison v. Day, 200 Va. 439, 448, 106 S.E.2d 636, 644 (1959).
Here, the plain and unambiguous language of art. VII, § 7
requires that, upon the town council’s "final vote on any
ordinance or resolution, the name of each member voting and how
he voted shall be recorded.”
As the Town states in its brief, requirements similar to
those imposed by art. VII, § 7 are “a check against the human
tendency to hide individual actions in those of the group or to
assent silently to the groups' [sic] will when the individual
may have a differing view.” The Town recognizes that the names
of the council members who voted in favor of the ordinance are
not stated in the minutes, but contends that "there can be no
doubt as to how each member voted" and that the minutes are in
substantial compliance with the constitutional provision.
In support, the Town cites the following provisions of an
attorney general's opinion.
[T]he recorded vote of each individual member of the
[B]oard [of Supervisors] is not necessary when a motion is
either passed or rejected upon the unanimous action of the
members at their regular meeting after there has been a
recording in the minutes of the members who are present.
In such circumstances, the names of the members and how
they voted is recorded.
1971-72 Op. Att'y Gen. 43 (emphasis added). The opinion does
not support the Town’s contention.
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Although suggesting a formal roll call vote is not
necessary, the opinion is clearly predicated on the assumption
that “there has been a recording in the minutes of the members
who are present.” In the minutes at issue, the names of only
three of the four council members are stated. Additionally, for
the reasons articulated later, the notation in the minutes that
"the motion . . . carried unanimously" does not necessarily
indicate that each of those council members voted in favor of
the motion.
The Town also relies on three cases from other
jurisdictions upholding the adoption of various motions by town
councils in which restraints similar to those in this case were
imposed upon the manner of recording council members’ votes.
However, unlike the minutes in this case, the minutes of each
governmental body in two of the cases reflected how each member
voted. In Goodyear Rubber Co. v. City of Eureka, 67 P. 1043,
1043 (Cal. 1902), the minutes noted the names of those
councilmen present and stated “[a]ll present voting in favor
thereof, and no one against the same.” In Brophy v. Hyatt, 15
P. 399, 401 (Colo. 1887), the minutes recited that “upon the
ballot being spread for its approval and adoption, the votes
stood as follows: Ayes, [listing by name six members of the
town board of trustees]. Noes, none.” In the third case, the
minutes recited the names of the council members and noted that
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the members present voted in favor of the ordinance. Hammon v.
Dixon, 338 S.W.2d 941, 943-44 (Ark. 1960).
In contrast to the Town's contentions, the minutes at issue
neither record the names of all council members present nor
report how the members of the council voted. The Supreme Court
of Michigan has stated:
Now if it were a legal presumption that all the members who
were present at the call to order of such a meeting
remained until its adjournment, and that no others came in
and took their seats afterwards, and if it were also a
presumption that every member voted on each resolution on
roll-call, the argument of the [town council in favor of
the validity of its action in adopting the ordinance] would
be complete . . . .
But surely there are no such presumptions of law, and
if there were, they would be contradictory to the common
experience of similar official bodies. It is very well
known that it is neither observed nor expected that when a
legislative body of any grade has commenced its daily
session, the doors will be closed to prevent the ingress of
members not prompt in arrival, or the egress of others who
may have occasion to leave. The actual attendance on such
a body will frequently be found to change materially from
hour to hour, so that a record that a vote was passed
unanimously would be very slight evidence that any
particular member present at the roll-call voted for it, or
that any member not then present did not. . . . Moreover,
the members actually present are usually allowed to vote or
not to vote at their option, . . . and if the vote of a
quorum is in favor of a resolution and no vote is cast
against it, the record may still be that it was “adopted
unanimously on call,” though some of the members present
abstained from voting.
Steckert v. City of East Saginaw, 22 Mich. 104, 108-09 (1870)
(cited with approval by: Monett Elec. Light, Power & Ice Co. v.
City of Monett, 186 F. 360, 368-69 (C.C.D. Mo. 1911); Nelson v.
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State ex. rel. Axman, 83 So.2d 696, 698 (Fla. 1955); City of
Rome v. Reese, 91 S.E. 880, 881 (Ga. Ct. App. 1917); Pontiac v.
Axford, 12 N.W. 914, 915 (Mich. 1882); Bruder v. Board of Educ.,
224 N.W. 268, 270 (Minn. 1929); Village of Beverly Hills v.
Schulter, 130 S.W.2d 532, 537 (Mo. 1939); Hand v. School Dist.,
2 N.W.2d 313, 315 (Neb. 1942); Union Bank v. Commissioners of
Oxford, 25 S.E. 966, 968 (N.C. 1896); Pickton v. City of Fargo,
88 N.W. 90, 96 (N.D. 1901); Board of Educ. v. Best, 39 N.E. 694,
697 (Ohio 1894); Shalersville Bd. of Educ. v. Horner, 9 N.E.2d
918, 921-22 (Ohio Ct. App. 1936); Finney v. Shannon, 6 P.2d 360,
362-63 (Wash. 1931)).
Further, the Town’s recital of a unanimous vote in its
minutes does not necessarily demonstrate that all members
present actually voted in favor of the ordinance. “To say that
a proposition was adopted by a 'unanimous' vote does not always
mean that every one present voted for the proposition.” Black's
Law Dictionary 1523 (6th ed. 1990); see also Steckert, 22 Mich.
at 108-09; Virginia Schlotzhauer et al., Parliamentary Opinions
91 (1982) (published by American Institute of Parliamentarians)
(vote of commission unanimous if nine of ten members present
voted in favor and one abstained); Paul Mason, Manual of
Legislative Procedure for Legislative and Other Governmental
Bodies § 516, at 201 (1979) (presumption of affirmative vote of
abstaining member if simple majority vote required); J.R.
7
Kemper, Annotation, Abstention from voting of member of
municipal council present at session as affecting requisite
voting majority, 63 A.L.R.3d 1072, 1078 (1975).
Since there is no presumption that all members remained in
the meeting from the time it convened until the vote to adopt
the ordinance was taken, we cannot determine which council
members were present for the vote or who actually voted to adopt
the ordinance. Additionally, the recitation of a unanimous vote
does not necessarily indicate that all council members present
actually voted in favor of the adoption of the ordinance.
Because we cannot tell from the minutes which of the
members actually voted for the adoption of the zoning ordinance,
whether any member abstained, or if any member was absent when
the vote was taken, we conclude that the minutes simply do not
comply with the constitutional requirement of art. VII, § 7. 1
1
The dissent reads this constitutional provision as permitting
evidence of “the name of each member voting and how he voted” to
be gleaned from other unrelated documents, at least one of which
was prepared in the year before the council allegedly adopted
the ordinance. We think that the constitutional provision
clearly requires that this information be recorded either in the
minutes adopting the ordinance or in some contemporaneous
document referencing the adoption of the ordinance. Further,
even if the documents suggested by the dissent are used in an
attempt to establish which members voted, we must still
speculate on this record (1) whether all members of the council
were present when the ordinance was adopted and (2) which of the
members who were present actually voted for the adoption of the
ordinance and which members abstained.
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Accordingly, we hold that the alleged zoning ordinance is null
and void. See McClintock v. Richlands Brick Corp., 152 Va. 1,
24, 145 S.E. 425, 431 (1928) (municipal ordinance in conflict
with state constitution is void).
Finally, the Town argues that our ruling should not be
applied retroactively, but only prospectively. Since Ford has
successfully raised the issue, she is entitled to the benefit of
our decision. See City Council v. Potomac Greens Assocs.
Partnership, 245 Va. 371, 378, 429 S.E.2d 225, 229 (1993);
Perkins v. County of Albemarle, 214 Va. 416, 418, 200 S.E.2d
566, 568 (1973). However, our decision today shall be limited
to the present case and shall operate prospectively only.
Indeed, we note that the council has not sought to amend
and supplement its minutes nunc pro tunc to correct this
deficiency by recording “the name of each member voting and how
he [or she] voted.” See City of Hallandale v. State ex rel.
Sage Corp., 326 So.2d 202, 203 (Fla. Dist. Ct. App. 1976)
(amendment of minutes permitted so that record "speak[s] the
truth"); City of Independence v. Hare, 359 S.W.2d 33, 37 (Mo.
Ct. App. 1962) (court allowed modification of minutes to detail
actual vote); State ex rel. Schuler v. Dunbar, 333 N.W.2d 652,
655-56 (Neb. 1983) (minutes corrected to reflect what actually
occurred); Council v. Commonwealth, 198 Va. 288, 293-94, 94
S.E.2d 245, 248-49 (1956) (amendment of court order nunc pro
tunc to show name of twelfth juror in felony case); 5 Eugene
McQuillin, The Law of Municipal Corporations § 14.10 to .13 (3d.
ed. rev. vol. 1996) (amendment of council minutes nunc pro tunc
permitted under certain circumstances to show what actually
happened).
Finally, we think that Code § 15.2-1427(C) (cited by the
dissent) reaffirms the legislative intent not to validate any
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Ordinances enacted prior to this decision which were adopted
with minutes containing the same deficiencies as the minutes
involved in this case shall not be affected. See Potomac Greens
Assocs., 245 Va. at 378, 429 S.E.2d at 229.
Accordingly, the judgment of the trial court will be
Affirmed.
JUSTICE COMPTON, with whom CHIEF JUSTICE CARRICO and JUSTICE
LACY join, dissenting.
The dispositive question in this zoning controversy is
whether a local governing body, in enacting a zoning ordinance,
violated the second paragraph of art. VII, § 7, of the 1971
Constitution of Virginia, which provides: “On final vote on any
ordinance or resolution, the name of each member voting and how
he voted shall be recorded.”
In 1996, appellant Town of Madison, Incorporated, filed a
bill of complaint seeking an injunction against appellee
Carol W. Ford. The Town alleged Ford owns a parcel of land
located in the Town that is classified “Residential, R-1” under
the Town’s zoning ordinance. The Town further alleged that two
businesses, a realty company and an attorney’s office, are being
operated from a residence on the property in violation of the
ordinance adopted by a governing body that violates “some
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ordinance. The Town asked the court to issue a permanent
injunction to prohibit such violation.
Responding, Ford filed a “special plea” seeking dismissal
of the bill of complaint. She asserted the constitutional
provision at issue requires “a Roll Call vote.” Thus, she
alleged, the zoning ordinance, adopted in 1972, is void because
it was not enacted according to the procedure set forth in art.
VII, § 7.
The parties submitted in evidence by stipulation certain
Town records. Following argument of counsel, the trial court
sustained the plea and dismissed the bill. We awarded the Town
this appeal.
The 1971 and 1972 Town records received in evidence show
these facts. On July 14, 1971, the incumbent circuit judge
administered the oath of office to the five members of the
Madison Town Council, one of whom took the oath as Mayor.
Council minutes of a “regular monthly meeting,” held on
October 9, 1972, show that the same five persons were still
serving as members.
Council minutes of “a special meeting,” the focus of this
dispute, held on October 25, 1972, show that “[a]ll members were
present.” The minutes further show: “Council was informed by
provision of the Constitution of Virginia.”
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the Planning Commission that they have approved the Zoning
Ordnance [sic] as stated in the June 1972 printing with
revisions." The minutes also show that a named council member
“moved that the Town Council accept the ordnance [sic] as
presented by the Commission” and that another named member
“seconded” the motion, which “carried unanimously.” A third
member, the Mayor, as well as the Town’s clerk, signed the typed
minutes, which contain 12 sentences.
In a letter opinion sustaining the plea, the trial court
stated that “only one” of the documents received in evidence was
“relevant” to the issue presented, that is, the copy of the
minutes of the October 25 special meeting. The court said those
minutes “state that all members were present without stating the
names of the members or even the number of members.”
The trial court then ruled as follows: “This court
concludes that since the minutes in question do not set forth
the names of the council members in attendance, the statements
that all members were present and that the zoning ordinance was
unanimously adopted do not comply with the constitutional
requirement of the second paragraph of Art. VII, § 7.” The
court incorporated its letter opinion in the January 1997 final
order, which declared the ordinance void ab initio.
When a legislative body performs its law-making function,
courts must accord the legislative action “every reasonable
12
presumption” of validity. Wise v. Bigger, 79 Va. 269, 281
(1884). Otherwise, there would be interference with the
legitimate power and functions of legislative bodies. Id.
Consistent with this principle, the General Assembly, in the
revision of Title 15.1 of the Code effective December 1, 1997
(after the decision below), has provided: “All ordinances
heretofore adopted by a governing body shall be deemed to have
been validly adopted, unless some provision of the Constitution
of Virginia or the Constitution of the United States has been
violated in such adoption.” Code § 15.2-1427(C).
Accordingly, if the procedure connected with enactment of a
local ordinance is questioned, substantial compliance with
constitutional or statutory provisions regarding recording of
legislators’ votes should be sufficient to validate the action.
Hammon v. Dixon, 338 S.W.2d 941, 944 (Ark. 1960).
Applying these principles to the present case, I would
conclude, first, contrary to Ford’s argument, that the
constitutional provision in issue does not require a roll call
vote, that is, a vote “taken by yeas and nays,” as defined in
Robert’s Rules of Order Revised 197 (1951). Indeed, Code
§ 15.1-828 (1981 Repl. Vol.), effective at the time of this
dispute, specifically provided that “the yeas and nays shall be
recorded on any question” at the request of any town council
member present, a clear indication that the General Assembly did
13
not consider the constitutional procedure to require that method
of voting. (That statute was repealed with the revision of
Title 15.1. Acts 1997, ch. 587.)
Second, I would conclude there has been substantial
compliance with the constitutional requirement. Contrary to the
trial court’s ruling, I am of opinion that all the Town’s
records submitted as exhibits were “relevant” to consideration
of the issue; the constitutional provision nowhere specifies
that only the minutes of the meeting in issue may be considered
to sustain an ordinance.
When all these documents are considered, they show the
names of all the council members; they show that all members
were present at the special meeting (which had only one item on
the agenda); and they show that all those members voted in the
affirmative for the adoption of the zoning ordinance. Given the
presumption of validity to be accorded the actions of the
council, I would hold that Ford failed as a matter of law to
carry her burden to establish the correctness of her “special
plea,” that the Town has not violated this nonsubstantive,
procedural constitutional provision, and that the ordinance was
validly adopted.
Consequently, I would reverse the judgment of the trial
court, reinstate the Town’s bill of complaint, and remand the
cause to the trial court for further proceedings.
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