BRAY v. BROWN, et al.

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BROWN, et al.

November 5, 1999

Record No. 982684





William G. Plummer, Judge Designate

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


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

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
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
, 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).

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

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 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

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

Article II, ? 5(c) Constitution of

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.
, 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 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.