Present: Carrico, C.J., Compton, Lacy, Hassell, Keenan, and
Koontz, JJ., and Whiting, Senior Justic
TOWN OF MADISON, INC.
CAROL W. FORD
Record No. 970642
February 27, 1998
OPINION BY SENIOR JUSTICE HENRY H. WHITING
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
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
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 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
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 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.
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
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
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,
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. 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
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
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
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 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
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 §
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.
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,
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
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.