dissenting.
I do not agree with the majority’s conclusion that the General Assembly’s adoption of Code § 8.01-250.1, restoring plaintiffs’ time-barred claim under Code § 8.01-250, violates Virginia’s due process clause as embodied in Article I, Section 11 of our State Constitution.
The majority decision is based upon the premise that, “Code § 8.01-250 is not a statute of limitations [but rather] a statute of repose . . . intended as a substantive definition of rights as distinguished from a procedural limitation on the remedy used to enforce rights.” Noting that “time limitation in such a statute begins to run from the occurrence of an event unrelated to the accrual of a cause of action,” the majority concludes that, “the expiration of the time extinguishes not only the legal remedy but also all causes of action, including those which may later accrue as well as those already accrued.”
I do not believe the legislative designation of when a limitation period begins to run should determine whether the General Assembly intended the statute to be substantive or procedural. Such a distinction has no basis in the history of statutes of limitation nor in logic.
Early English statutes of limitation began to run on arbitrary dates without regard to when a particular cause of action arose. For example in 1237 a statute was enacted prohibiting all real property actions based on a seisin prior to the arbitrary date of the coronation of Henry II. See 2 Pollock & Maitland, The History of English Law, at 81 (2d ed. 1898). Almost 400 years later, Parliament synchronized the running of statutes of limitation with the accrual of particular causes of action. An act for limitation of actions and for avoiding of suits in law, 1623, 21 Jac. I Ch. 16.
The premise that Code § 8.01-250 is not a statute of limitation but a “statute of repose” and, therefore, affects substantive rights has two flaws. First, before this decision we have always considered statutes of limitation which bar common law actions to be statutes of repose affecting only procedural rights. Hawks v. DeHart, 206 Va. 810, 813, 146 S.E.2d 187, 189 (1966); Richmond Redevelopment & Housing Authority v. Laburnum Construction Corp., 195 Va. 827, 839, 80 S.E.2d 574, 581 (1954); Page v. Shenandoah, 185 Va. 919, 924, 40 S.E.2d 922, 925 (1947); Street v. Consumer Mining Corp., 185 Va. 561, 575, 39 S.E.2d 271, 277 *44(1946). Thus, creating a special “statute of repose” which affects substantive rights seems to me to be a judicial fiat. Second, the General Assembly’s choice of the date at which the limitation period begins to run cannot logically convert it into a statute barring not only the remedy but the right as well.
As recently as 1984 we have reiterated the rules for determining the validity of a legislative act:
Every presumption is made in favor of the constitutionality of an act of the legislature. A reasonable doubt as to its constitutionality must be solved in favor of the validity of the law, and the courts have nothing to do with the question whether or not the legislation is wise and proper, as the legislature has plenary power, except where the Constitution of the State or of the United States forbids, and it is only in cases where the statute in question is plainly repugnant to some provisions of the Constitution that the courts can declare it to be null and void.
City of Charlottesville v. DeHaan, 228 Va. 578, 584, 323 S.E.2d 131, 133 (1984), quoting Ex parte Settle, 114 Va. 715, 719, 77 S.E. 496, 497 (1913). Thus, if two constructions of a statute are possible, we should avoid the construction which makes the statute unconstitutional. Carpel v. City of Richmond, 162 Va. 833, 840, 175 S.E. 316, 318 (1934); A.S. White & Co. v. Jordan, 124 Va. 465, 470, 98 S.E. 24, 26 (1919).
The controlling consideration is legislative intent. What rights did the General Assembly intend to affect in adopting Code § 8.01-250? While not dispositive, it is noteworthy that this statute was placed in Chapter 4 of § 8.01 of our Code, entitled “Limitations of Actions.”
The legislation, adopted March 31, 1964, described the statute as “[a]n Act to amend the Code of Virginia by adding a section numbered 8-24.2, to limit the time within which certain actions for damages arising out of the defective and unsafe condition of improvements to real property may be brought.” Acts 1964, c. 333 (emphasis added). Significantly the statute’s second paragraph provides, “The limitation prescribed in this section shall not apply [to certain listed parties] . . . .” Code § 8.01-250 (emphasis added). There is no language in the statute in question by *45which one might infer that the General Assembly intended to bar not only the right of action but the remedy as well.
The provision in Code § 8.01-250 that reads, “[no] action to recover . . . shall be brought” resembles the language in many of our other statutes of limitation.1 The time limitation in these statutes does begin to run when the cause of action accrues. However, each has essentially the same prohibition against filing an action contained in Code § 8.01-250.
Moreover, the General Assembly has expressly said that “[n]o statutory limitation period shall have jurisdictional effects . . . .” Code § 8.01-235. This indicates a legislative intent that all statutes of limitation, whether “conventional” or of the newly coined “repose” variety, are procedural and not substantive.
I believe the majority has shifted statutes of repose from the category of statutes of limitation to the category of nonclaim statutes. As the Supreme Court of Washington pointed out in Lane v. Department of Labor and Industries, 21 Wash. 2d 420, 425, 151 P.2d 440, 443 (1944):
There are two types of statutes which the courts had to apply. One of them is the statute which either by its plain terms or by the construction given it by the court makes the limitation of time inhere in the right or obligation rather than the remedy. It is sometimes referred to as a statute of nonclaim, and, strictly speaking is not a statute of limitations at all. In its usual form the statute creates some right or obligation and a time is fixed within which the right must be asserted or the obligation sought to be enforced, or the same will be barred. When the limitation period expires, the right *46or obligation is extinguished and cannot be revived by a subsequent statute enlarging the time limitation. Illustrations of nonclaim statutes in this state are those providing for liens of laborers and materialmen, claims against estates of deceased persons, and claims for damages against municipal corporations.
We have examples of similar nonclaim statutes in Code § 8.01-222 providing for notice of claim of damages for negligence against municipal corporations and in Code § 43-17 requiring the filing of the memorandum of lien within six months of the filing of the suit to perfect that lien. Note that each of these statutes creates a new right and places a limitation on the time for enforcing it. In contrast, Code § 8.01-250 imposes a time limitation on a common law right.
In Bellevue School Dist. 405 v. Brazier Construction Co., 103 Wash. 2d 111, 691 P.2d 178 (1984), the Washington Supreme Court considered whether a statute2 similar to Code § 8.01-250 affected the cause of action as well as the remedy. The Washington court, quoting Lane, 21 Wash. 2d at 426, 151 P.2d at 443, distinguished its statute from a nonclaim statute in the following language:
The other type of statute is one which relates only to the remedy and has nothing to do with any right or obligation, does not inhere in either, and is wholly independent of them. It is a statute of limitations in its strict sense, and although a remedy may become barred thereunder, the right or obligation is not extinguished. It is a statute of repose.
Id. at 118, 691 P.2d at 183. The Washington court did not construe the statute as barring the right as well as the remedy even *47though its limitation period did not begin to run on the date the cause of action accrued. As the court pointed out:
The builder limitation statute, RCW 4.16.310, creates no new right, but merely defines a limitation period within which a claim ordinarily must accrue. Even without this statute, a common law right would still exist. [Citation omitted.]
The essential difference between RCW 4.16.310 and an ordinary statute of limitation is simply the point at which the limitation period begins to run. Builder statutes such as RCW 4.16.310 arbitrarily define this point as the date of substantial completion of the construction project. Under conventional statutes of limitation, the period begins to run when the cause of action accrues. See RCW 4.16.010. Under RCW 4.16.310, the accrual period is defined by statute to exist for a period limited to 6 years from the date of substantial completion. The discovery rule, if applicable, for accrual of actions is limited to the 6-year period.
The fact that actions which fall within RCW 4.16.310 may also be subject to other periods of limitation does not transform this limitations statute into a nonclaim provision. With the recognition that under some circumstances causes of action for negligence or professional malpractice may not arise until discovery, the Legislature has responded by enacting statutes of limitations which require suit be filed within the shorter of two periods, one measured from the date of discovery and a second, longer period measured from the event giving rise to the cause of action. See, e.g., RCW 4.16.350 (actions against health care providers). RCW 4.16.310 enacts such a two-step procedure: actions founded upon negligence or professional malpractice concerning improvements to real property must be filed within 2 or 3 years of discovery, depending on the type of action but, in any case, discovery must occur within 6 years of substantial completion of the improvement. This statute simply restricts the judicially created discovery rule with a 6-year overall bar.
Id. at 118-19, 691 P.2d at 183-84.
We have not previously treated Code § 8.01-250 as a substantive or nonclaim statute. In Cape Henry Towers, Inc. v. National *48Gypsum Co., 229 Va. 596, 331 S.E.2d 476 (1985), we described it as “the five-year statute of limitations provided by Code § 8.01-250,” id. at 598, 331 S.E.2d at 477, comparing it, by ihference, to “[t]he traditional statutes of limitations”. Id. at 601 n.4, 331 S.E.2d at 480 n.4. In Virginia Military Institute v. King, 217 Va. 751, 232 S.E.2d 895 (1977), we described it as “that statute [which] sets an outside limit within which the applicable statutes of limitations operate. Its purpose is not to extend existing limitation periods, such as the two-year period applicable to personal injury actions, but to establish an arbitrary termination date after which no litigation of the type specified may be initiated.” Id. at 758, 232 S.E.2d at 899.
Since I believe that Code § 8.01-250 is a statute of limitation or repose and not a nonclaim statute, I must consider whether a legislature has the constitutional power to revive a time-barred right of action. The courts have disagreed on this issue for a number of years.
The Supreme Court of the United States in an early case, Campbell v. Holt, 115 U.S. 620 (1885), decided that the Fourteenth Amendment to the United States Constitution3 did not prohibit a legislative revival of a time-barred action. The Campbell Court reasoned that the statute of limitation only barred the remedy or right of action but not the cause of action. The dissent in Campbell characterized the right to plead the statute of limitation as a remedy, but said the deprivation of a remedy was equivalent to a deprivation of a right which the remedy was intended to vindicate. As such, the dissent found it to be a vested right which the Fourteenth Amendment to the Constitution was intended to protect. The dissent quotes Cooley, Constitutional Limitations, at 429-30 (3d ed. 1874), in support of its conclusion that the right to plead a statute of limitation once it has run is a vested right:
Regarding the circumstances under which a man may be said to have a vested right to a defence against a demand made by another, it is somewhat difficult to lay down a comprehensive rule which the authorities will justify. It is certain that he who has satisfied a demand cannot have it revived *49against him, and he who has become released from a demand by the operation of the statute of limitations is equally protected. In both cases the demand is gone, and to restore it would be to create a new contract for the parties-a thing quite beyond the power of the legislature.
Id. at 633-34.
A number of states adopting the dissent’s view referred to that quotation from Cooley. Cooley erroneously assumes that all parties impliedly contract for a continuation of any defense the law provides at the time of the making of any contract or the commission of any tort. Our previous holdings indicate that we should not adopt such a rationale.
In Bain v. Boykin, 180 Va. 259, 23 S.E.2d 127 (1942), we deprived a defendant of his defense that the plaintiff had failed to register under the fictitious name statute in effect at the time the parties entered into the contract. The amendment came long after the contract had been performed and, in fact, while the case was on appeal before this Court. The defendant pitched his argument on a claim of a vested right in the judgment, but we decided that even though the Act was retroactive he had no vested right in the judgment. Id. at 264, 23 S.E.2d at 129-30. Implicit in our holding is a finding that a defendant has no vested or substantive right in any statutory defense. By similar reasoning I fail to see how these defendants have a vested or substantive right in a statute of limitation which had run prior to the revival of the present right of action.
As Justice Jackson pointed out in Chase Securities Corp. v. Donaldson, 325 U.S. 304 (1945):
Statutes of limitations find their justification in necessity and convenience rather than in logic. They represent expedients, rather than principles. They are practical and pragmatic devices to spare the courts from litigation of stale claims, and the citizen from being put to his defense after memories have faded, witnesses have died or disappeared, and evidence has been lost. (Citation omitted.) They are by definition arbitrary, and their operation does not discriminate between the just and the unjust claim, or the voidable and unavoidable delay. They have come into the law not through the judicial process but through legislation. They represent a public pol*50icy about the privilege to litigate. Their shelter has never been regarded as what now is called a ‘fundamental’ right or what used to be called a ‘natural’ right of the individual. He may, of course, have the protection of the policy while it exists, but the history of pleas of limitation shows them to be good only by legislative grace and to be subject to a relatively large degree of legislative control.
This Court, in Campbell v. Holt, adopted as a working hypothesis, as a matter of constitutional law, the view that statutes of limitations go to matters of remedy, not to destruction of fundamental rights. The abstract logic of the distinction between substantive rights and remedial or procedural rights may not be clear-cut, but it has been found a workable concept to point up the real and valid difference between rules in which stability is of prime importance and those in which flexibility is a more important value.
The Fourteenth Amendment does not make an act of state legislation void merely because it has some retrospective operation. What it does forbid is taking of life, liberty or property without due process of law. Some rules of law probably could not be changed retroactively without hardship and oppression, and this whether wise or unwise in their origin. Assuming that statutes of limitation, like other types of legislation, could be so manipulated that their retroactive effects would offend the Constitution, certainly it cannot be said that lifting the bar of a statute of limitation so as to restore a remedy lost through mere lapse of time is per se an offense against the Fourteenth Amendment.
Id. at 314-16.
The various state cases which have dealt with this issue are in disarray. See Chevron Chemical Co. v. Superior. Ct., 131 Ariz. 431, 438-40, 641 P.2d 1275, 1283-84 (1982); Gilbert v. Selleck, 93 Conn. 412, 418-19, 106 A. 439, 440-41 (1919); Roe v. Doe, 59 Haw. 259, 266-69, 581 P.2d 310, 316-17 (1978); Canton Textile Mills, Inc. v. Lathem, 253 Ga. 102, 104-05, 317 S.E.2d 189, 192, cert. denied, 469 U.S. 918 (1984); Aaron v. City of Tipton, 218 Ind. 227, 238-40, 32 N.E.2d 88, 92-93 (1941); Pryber v. Marriott *51Corp., 98 Mich. App. 50, 56, 296 N.W.2d 597, 600 (1980), aff'd, 411 Mich. 887, 307 N.W.2d 333 (1981); Donaldson v. Chase Securities Corp., 216 Minn. 269, 275-77, 13 N.W.2d 1, 4-5 (1943), aff'd, 325 U.S. 304 (1945); Crist v. Town of Gallup, 51 N.M. 286, 293, 183 P.2d 156, 160 (1947); In Interest of W.M.V., 268 N.W.2d 781, 786 (N.D. 1978); Vigil v. Tafoya, 600 P.2d 721, 724-25 (Wyo. 1979) (legislative revival of time-barred right of action does not violate state due process); cf. Gallewski v. H. Hentz & Co., 301 N.Y. 164, 174, 93 N.E.2d 620, 624 (1950); Pnakovich v. SWCC, 163 W.Va. 583, 589-90, 259 S.E.2d 127, 130-31 (1979) (legislative revival of time-barred right of action does not per se violate due process, ad hoc determination weighing fairness to the parties). But see Wasson v. State ex rel. Jackson, 187 Ark. 537, 538, 60 S.W.2d 1020, 1020-21 (1933); Cheswold Volunteer Fire Co., 489 A.2d 413, 418 (Del. 1984); Mazda Motors of America, Inc. v. S.C. Henderson & Sons, Inc., 364 So.2d 107, 108 (Fla. Dist. Ct. App. 1978), cert. denied, 378 So.2d 348 (1979); Wilson v. All-Steel, Inc., 87 Ill. 2d 28, 40-42, 428 N.E.2d 489, 494-95 (1981); Jackson v. American Best Freight System, Inc., 238 Kan. 322, 324-25, 709 P.2d 983, 985 (1985); Jackson v. Evans, 284 Ky. 748, 751-52, 145 S.W.2d 1061, 1062 (1940); Ayo v. Control Insulation Corp., 477 So.2d 1258, 1260 (La. Ct. App. 1985),cert. denied, 481 So.2d 1349 (1986); Dobson v. Quinn Freight Lines, Inc., 415 A.2d 814, 816 (Me. 1980); Zitomer v. Slate, 21 Md. App. 709, 714, 321 A.2d 328, 331 (1974), rev’d on other grounds, 275 Md. 534, 341 A.2d 789 (1975), cert. denied sub nom., Gasperich v. Church, 423 U.S. 1076 (1976); Williams v. Wellman-Power Gas, Inc., 174 Mont. 387, 391, 571 P.2d 90, 92-93 (1977); Colony Hill Condominium I Ass’n v. Colony Co., 70 N.C. App. 390, 394, 320 S.E.2d 273, 276 (1984), review denied, 312 N.C. 796, 325 S.E.2d 485 (1985); Grand Island School District No. 2 v. Celotex Corp., 203 Neb. 559, 563, 279 N.W.2d 603, 607 (1979); Cathey v. Weaver, 111 Tex. 515, 527, 242 S.W. 447, 453 (1922); In re Swan’s Estate, 95 Utah 408, 415, 79 P.2d 999, 1002 (1938); Haase v. Sawicki, 20 Wis. 2d 308, 311-13, 121 N.W.2d 876, 878-79 (1963) (expiration of limitation period vests party with right which is entitled to due process protection); cf. Tyson v. Johns-Manville Sales Corp., 399 So.2d 263, 270 (Ala. 1981); Jefferson County Dept. of Social Services v. D.A.G., 199 Colo. 315, 317-18, 607 P.2d 1004, 1006 (1980); Uber v. Missouri Pacific R.R. Co., 441 S.W.2d 682, 687 (Mo. 1969); Gould v. Concord *52Hospital, 126 N.H. 405, 408, 493 A.2d 1193, 1195-96 (1985); Wright v. Keiser, 568 P.2d 1262, 1267 (Okla. 1977); Ford Motor Co. v. Moulton, 511 S.W.2d 690, 695 (Tenn.) cert. denied, 419 U.S. 870 (1974), called into doubt by, Clay v. Johns-Manville Sales Corp., 722 F.2d 1289 (6th Cir. 1983), cert. denied sub nom., Raymark Industries, Inc. v. Clay, 467 U.S. 1253 (1984) (legislative revival of time-barred right of action unconstitutional under state constitution’s specific prohibition against retrospective laws). At least one state that adopted the dissenting view of Campbell v. Holt has since repudiated its earlier decision and found that the legislature does have the constitutional power to revive “dead” rights of action previously barred by the statutes of limitation. Canton Textile Mills, Inc., 253 Ga. at 104-05, 317 S.E.2d at 192; cf. Krenzlak v. Krenzlak, 469 A.2d 987, 991-93 (Pa. 1983).
We have never directly addressed this issue. Bartholomew v. Bartholomew, 233 Va. 86, 353 S.E.2d 752 (1987), cited in the majority opinion, involved a different situation. In Bartholomew, we held unconstitutional the retroactive application of a statute abolishing the common law defense that a release of one joint tortfeasor released the remaining tortfeasors. First, in Bartholomew the defense was one existing at common law; the defense here is a matter of legislative grace which may be granted or taken away by the General Assembly. Second, the right of action in Bartholomew was lost by the activity of the plaintiff in releasing the tortfeasor. In contrast, the General Assembly, as a matter of grace, gave the defendants a defense of the statute of limitation but later extended the period of limitation.
A careful reading of the case of Cheswold Volunteer Fire Co. v. Lambertson Construction Co., 489 A.2d 413 (Del. 1984) reveals the effect of the majority opinion. Cheswold held that a builder’s repose statute of limitation similar to the one at bar need not be pleaded as an affirmative defense.4 489 A.2d at 421. Cheswold also held the statute “may not be waived because the time limit expressly qualifies the right which the statute creates .... Moreover, because the statute of repose is a substantive provision, it relates to the jurisdiction of the court; hence ‘any failure to commence the action within the applicable time period extinguishes *53the right itself and divests the . . . court of any subject matter jurisdiction which it might otherwise have.’ ” (Citations omitted). Id.
I conclude that the General Assembly did not intend to abolish the common law cause of action described in Code § 8.01-250 but only to bar the procedural right of action. I also find that the General Assembly had the constitutional power to revive the previously barred right of action described in Code § 8.01-250.
Therefore, I would respond to the question before me by holding the application of Code § 8.01-250.1 to the facts presented in the orders of certification is constitutional under the due process clause of Va. Const, art. I, § 11.
See Code § 8.01-239 (“No action shall be brought for the recovery of any ground rent . . .”); Code § 8.01-240 (“No suit shall be brought to enforce the lien of any water . . . assessment”); Code § 8.01-241 (“No deed of trust . . . shall be enforced . . .”); Code § 8.01-245 A (“No action shall be brought upon the bond of any fiduciary . . .”; Code § 8.01-247 (“No action shall be maintained on any contract which is governed by the law of another state or country if the right of action thereon is barred either by the laws of such state or country or of this Commonwealth.”); Code § 8.01-251 (“[N]o action [shall be] brought on a judgment. . . after twenty years from the date of such judgment”); Code § 8.01-253 (“No [voluntary] gift. . . shall be avoided . . . unless within five years from its recordation . . . suit be brought for that purpose . . . .”); Code § 8.01-254 (“[N]o suit or action shall be brought to subject. . . real estate to the payment of [a charge on devised real estate] after twenty years . . .”); Code § 8.01-255.1 (“No person shall commence an action for the recovery of lands . . . [for] breach of a condition subsequent . . . .”)
Wash. Rev. Code Ann. § 4.16.310 (1967) provides:
All claims or causes of action as set forth in ROW 4.16.300 shall accrue, and the applicable statute of limitation shall begin to run only during the period within six years after substantial completion of construction, or during the period within six years after the termination of the services enumerated in RCW 4.16.300, whichever is later .... Any cause of action which has not accrued within six years after such substantial completion of construction, or within six years after such termination of services, whichever is later, shall be barred: Provided, That this limitation shall not be asserted as a defense by any owner, tenant or other person in possession and control of the improvement at the time such cause of action accrues.
The operative provisions of our due process clause and that of the Federal Constitution are the same. However, I agree that a United States Supreme Court interpretation of the federal due process clause does not inhibit our independent interpretation of Virginia’s due process clause.
The General Assembly has evidenced a contrary intent in Code § 8.01-235, “The objection that an action is not commenced within the limitation period prescribed by law can only be raised as an affirmative defense specifically set forth in a responsive pleading.”