Bray v. Brown

PRESENT: Carrico, C.J., Compton, Hassell, Keenan, Koontz, and
Kinser, JJ., and Whiting, Senior Justice

MELVIN BRAY
OPINION BY
v. Record No. 982684 SENIOR JUSTICE HENRY H. WHITING
November 5, 1999
CHRISTOPHER K. BROWN, ET AL.

FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
William G. Plummer, Judge Designate

In this appeal, we consider the prohibition against

holding multiple public offices contained in the following

constitutional and statutory provisions:

Article VII, § 6 of the Constitution of Virginia:

[N]o person shall at the same time hold more than one
office mentioned in this Article. No member of a governing
body shall be eligible, during the term of office for which
he was elected or appointed, to hold any office filled by
the governing body by election or appointment. . . .

Code § 15.2-1534:

A. Pursuant to Article VII, Section 6 of the
Constitution of Virginia, no person holding the office
of treasurer, sheriff, attorney for the Commonwealth,
clerk of the circuit court, commissioner of the
revenue, supervisor, councilman, mayor, board
chairman, or other member of the governing body of any
locality shall hold more than one such office at the
same time.

B. Subsection A shall not be construed to prohibit:

. . . .

3. A deputy sheriff of a county from serving as
appointed town sergeant of a town located in the
county;.

. . . .
 6. The election of deputies of constitutional
officers to school board membership, consistent with
federal law and regulation.

In August 1998, there was a vacancy on the Town

Council of Dumphries in Prince William County. The

remaining members of the council were unable to agree upon

an appointment to fill the vacancy. Accordingly, the

judges of the Circuit Court of Prince William County

appointed Melvin Bray, a Prince William County deputy

sheriff, to fill the vacancy pursuant to the provisions of

Code § 24.2-228. The following day, Bray, purporting to

qualify as a council member, took the required oath of

office.

Thereafter, Christopher K. Brown and Claude C. Thomas,

Jr., the town's mayor and vice mayor, respectively, who are

also members of the Town Council (plaintiffs), brought this

declaratory judgment suit to determine whether Bray could

simultaneously hold both offices under the above quoted

constitutional and statutory provisions. The foregoing

facts were stipulated, counsel for the parties argued the

case, and the circuit court ruled that Bray could not hold

both offices concurrently. Bray appeals.

The plaintiffs contend that Article VII, § 6

encompasses a deputy sheriff within its prohibition against

a sheriff, as an elected constitutional official, holding

2
multiple offices. They rely primarily upon the history of

these provisions and the rules of construction of ambiguous

language to support their contention. Bray responds that

the constitutional provision is unambiguous and that we

should apply it as written. We agree with Bray.

We find nothing in Article VII, § 6 which extends its

proscription against multiple public office holding beyond the

holders of the offices described or referred to therein. As

applied in this case, we think that the prohibition against

holding multiple offices contained in Article VII, § 6 is

clearly and unambiguously limited to persons who hold more than

one of the various offices expressly mentioned in Article VII,

§§ 4 and 5 of the Constitution of Virginia. Article VII, § 4

thereof mentions "a sheriff" and Article VII, § 5 mentions

"[members of] the governing body of each . . . town."

When the language of an enactment is plain and unambiguous,

as in this case, we apply its plain meaning. City of Winchester

v. American Woodmark Corp., 250 Va. 451, 457, 464 S.E.2d 148,

152 (1995) (statute); Southern Ry. v. City of Richmond, 175 Va.

308, 312, 8 S.E.2d 271, 272 (1940) (Constitution). Accordingly,

we take the words as written and do not resort to the history of

a particular enactment, extrinsic facts, or to general rules of

construction of enactments that have a doubtful meaning. Brown

v. Lukhard, 229 Va. 316, 321, 330 S.E.2d 84, 87 (1985).

3
 The plaintiffs implicitly recognize that none of the

language in Article VII, § 6 expressly includes deputy sheriffs

within its scope. Nevertheless, they suggest that since prior

cases have considered sheriffs and their deputies as "one

person," we should apply the same concept here. The plaintiffs

rely upon Mosby v. Mosby, 50 Va. (9 Gratt.) 584, 604 (1853), and

Whited v. Fields, 581 F. Supp. 1444, 1456 (W.D. Va. 1984).

These cases discuss the liability of a sheriff for the acts of

his deputy, an entirely different issue than that involved here;

we are considering whether the multiple office disqualification

extends to the deputies of a constitutional officer. Thus, we

find no merit in this suggestion.

Next, plaintiffs argue that Bray is subject to the second

sentence of the quoted provision of Article VII, § 6 which

disqualifies a Town Council member from holding an office filled

by the council either by election or appointment during the term

of his service on the council. We reject this argument because

Bray was neither elected nor appointed as a deputy sheriff by

the Dumphries Town Council.

Nor do we agree with plaintiffs' contention that the

exceptions in Code § 15.2-1534 make it ambiguous and permit a

consideration of its legislative history and an application of

the rules of construction of ambiguous language. Even if the

statute supported this argument, the statute would not be valid

4
because the legislature cannot create a disqualification for

public office that is not authorized in the constitutional

provision relied upon to support the statute. City of Richmond

v. Lynch, 106 Va. 324, 325, 56 S.E. 139, 139 (1907).

Finally, we reject the plaintiffs' claim that the following

constitutional provision authorizes their broad construction of

Code § 15.2-1534:

[N]othing in this Constitution shall limit the power of the
General Assembly to prevent conflict of interests, dual
officeholding, or other incompatible activities by elective
or appointive officials of the Commonwealth or of any
political subdivision.

Article II, § 5(c) Constitution of Virginia.

The difficulty with the plaintiffs' claim is that the

legislature did not rely upon this section of the Constitution

in adopting Code § 15.2-1534. Instead, the legislature

expressly stated that its enactment of Code § 15.2-1534 was

"[p]ursuant to Article VII, § 6." The term "'[p]ursuant to'

means 'in the course of carrying out: in conformance to or

agreement with: according to' and, when used in a statute, is a

restrictive term." Black's Law Dictionary 1237 (6th ed. 1990)

(quoting Knowles v. Holly, 513 P.2d 18, 23 (Wash. 1973)); E.P.

Paup Co. v. Director, 999 F.2d 1341, 1349 (9th Cir. 1993).

Thus, given the legislature's deliberate reference to Article

VII, § 6, we cannot consider another provision of the

5
Constitution as additional authorization for the enactment of

Code § 15.2-1534.

For these reasons, we will reverse the judgment of the

trial court and enter final judgment here declaring that Bray is

entitled to serve as a member of the Town Council even though he

is a deputy sheriff in the same county.

Reversed and final judgment.

6