TOWN OF MADISON, INC. v.
February 27, 1998
Record No. 970642
TOWN OF MADISON, INC.
CAROL W. FORD
OPINION BY SENIOR JUSTICE HENRY H. WHITING
FROM THE CIRCUIT COURT OF MADISON COUNTY
Lloyd C. Sullenburger, Judge
Present: Carrico, C.J., Compton, Lacy, Hassell, Keenan, and
Koontz, JJ., and Whiting, Senior Justice
This case turns on whether a town zoning ordinance was adopted
in compliance with the second paragraph of the following
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
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.
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 shown on
the face of the minutes, the constitutional requirement was not
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.
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
In support, the Town cites the following provisions of an
attorney general’s opinion.
[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
1971-72 Op. Att’y Gen. 43 (emphasis added). The opinion does
not support the Town’s contention.
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 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
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. 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. 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,
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.
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
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. 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
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 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
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
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 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.
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
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
Finally, we think that Code ? 15.2-1427(C) (cited by the
dissent) reaffirms the legislative intent not to validate
any ordinance adopted by a governing body that violates
"some provision of the Constitution of Virginia."