TERRY ALLEN DIGGS v. COMMONWEALTH OF VIRGINIA
No. 0254-86-4
Richmond
Decided May 17, 1988
300
Ron Lewis Napier (Napier & Napier, on brief), for appellant.
Eugene Murphy, Assistant Attorney General, (Mary Sue Terry, Attorney General, on brief), for appellee.
OPINION
ON REHEARING EN BANC
BARROW, J.---In this appeal of a traffic infraction we conclude that a person whose operator‘s license has been suspended or revoked may not drive a moped1 on a public highway.
Diggs was convicted of operating a moped on a public highway after his operator‘s license had been revoked. When he was observed, his moped was being propelled by its motor, although foot-pedalling was required to initiate its motion.
The words, “self-propelled machinery,” are not ambiguous. Words are ambiguous if they admit to “being understood in more
The meaning of “self-propelled machinery,” is clear and has only one meaning. “Self-propelled” is an adjective meaning “[c]ontaining its own means of propulsion . . . .” American Heritage Dictionary 1113 (2d College ed. 1982). Machinery refers to “[m]achines or machine parts collectively,” while a machine is “[a] system, usually of rigid bodies, formed and connected to alter, transmit, and direct applied forces in a predetermined manner to accomplish a specific objective . . . .” Id. at 751.
According to these definitions, a moped is a “self-propelled” machine. Like a bicycle, it is a system of rigid bodies or parts formed and connected to direct energy in a predetermined manner to accomplish locomotion. Unlike a bicycle, it is equipped with a helper motor and, therefore, contains its own means of propulsion.
Since the words of the statute are clear and unambiguous, judicial construction is not required. Brown, 229 Va. at 321, 330 S.E.2d at 87. The general rules of statutory construction do not apply, and we may not “resort to legislative history and extrinsic facts” to interpret words whose meaning is clear. Id. We must “take the words as written” and give them their plain meaning. Id.
The appellant argues that the words, “self-propelled machinery or equipment” are ambiguous because they are too inclusive. But, broadly inclusive language in a statute is not ambiguous if the legislature‘s objective requires such language. Diamond v. Chakrabarty, 447 U.S. 303, 315 (1980).
Even if we were to accept Diggs’ argument that the term is ambiguous, the legislative history supports our conclusion that a moped is “self-propelled machinery or equipment” for purposes of
This broad objective of the language in
Diggs contends that another provision of the motor vehicle code,
Since the language of
Other provisions of the motor vehicle code do not define “machinery” or “equipment” nor do they limit the definition of these terms in a way that would exclude mopeds. Diggs points to other provisions where these terms are used and contends that the manner of their use excludes mopeds.3 However, in each instance of their use the terms simply enumerate certain tangible personalty without attempting, either explicitly or implicitly, to define “machinery” or “equipment” or limit what may be included within their scope.
In addition, Virginia Attorney General opinions have consistently held, without contrary legislative response, that one whose license is suspended or revoked cannot legally operate a moped on public highways during the period of suspension or revocation. See Op. Va. Att‘y Gen. 215-16 (Oct. 26, 1984); Op. Va. Att‘y Gen. 265-67 (July 20, 1977); Op. Va. Att‘y Gen. 251-52 (Oct. 2, 1975). Although the Attorney General‘s opinions are not binding, Barber v. City of Danville, 149 Va. 418, 424, 141 S.E. 126, 127 (1928),
We conclude that, since the defendant was operating a moped being propelled by its motor, he was operating “self-propelled machinery or equipment” in violation of
Affirmed.
Baker, J., Coleman, J., Duff, J., Keenan, J., and Moon, J., concurred.
Cole, J., with whom Koontz, C.J. and Benton, J., join, dissenting.
I respectfully dissent and disagree with the majority opinion.
The issue presented in this case is whether the appellant, Terry Allen Diggs, violated
We must first know what a moped is. By statutory definition a moped is a “bicycle-like device with pedals and a helper motor which is rated at no more than two brake horsepower and which produces speeds up to a maximum of thirty miles per hour.”
“It is a settled rule of construction in this state that where a statute is plain and unambiguous there is no room for construction by the court and the plain meaning and intent of the statute will be given it.” McClung v. Henrico County, 200 Va. 870, 874, 108 S.E.2d 513, 516 (1959); see Winston v. City of Richmond, 196 Va. 403, 407-08, 83 S.E.2d 728, 731 (1954); Almond v. Gilmer, 188 Va. 1, 14-15, 49 S.E.2d 431, 439 (1948).
Language is ambiguous if it admits to being understood in more than one way or refers to two or more things simultaneously. An ambiguity exists when the language is difficult to comprehend, is of doubtful import, or lacks clearness and definiteness. . . . [W]hen an enactment is unambiguous, extrinsic legislative history may not be used to create an ambiguity, and then remove it, where none otherwise exists.
Brown v. Lukhard, 229 Va. 316, 321, 330 S.E.2d 84, 87 (1985) (citations omitted).
Applying these rules to the facts of this case, we find the language of
Webster‘s defines “equipment,” among other things, as (1) “the implements (as machinery or tools) used in an operation or activity;” (2) “all the fixed assets other than land and buildings of a business enterprise;” (3) “apparatus, machinery, paraphernalia, outfit, tackle, gear, material . . . in common, all the things used in a given work or useful in effecting as given end.” The Commonwealth argues from these definitions that a moped is “machinery” or “equipment.”
I think it unreasonable to conclude that the legislature would pass
Since I find that the statute is ambiguous, I must resort to the history of the statute and the rules of construction to determine legislative intent, which is the primary concern of statutory construction. Virginia Dep‘t of Labor & Industry v. Westmoreland Coal Co., 233 Va. 97, 101-02, 353 S.E.2d 758, 762 (1987). “The divergent interpretations discussed above demonstrate the difficulty one encounters in trying to ascertain the statute‘s meaning.” Id. at 101, 353 S.E.2d at 762.
The history of the Motor Vehicle Code is informative in determining legislative intent. Section 2154(39)a(b) of the 1930 Code of Virginia defined the term “motor vehicle” as “every vehicle, as
Every device in, upon or by which any person or property is or may be transported or drawn upon a public highway, except devices moved by human power or used exclusively upon stationary rails or tracks.
Code § 2154(39)a(a) (1930). The 1930 Code does not define the terms bicycle or moped. Notably, as far back as 1930, motor vehicles have been defined as self-propelled, and devices moved by human power have been exempted from the definition of “motor vehicles.”
In 1958, title 46 was repealed and the Motor Vehicle Code was reenacted as title 46.1. Former Code § 46-347.1 of the 1952 Code was reenacted as
First, the Council recommended that legislation should be adopted making it “unlawful for any person whose operator‘s license is under suspension or revocation to operate any self-propelled farm machinery or construction equipment” on Virginia highways. S. Doc. No. 8, at 7 (emphasis added). The reason given for this recommendation was that the privilege to operate such machinery and equipment was abused by those whose licenses had been revoked, and the use of such machinery or equipment in lieu of motor vehicles added “an unnecessary hazard to our overcrowded highways.” Id., at 16.
In response to the Council‘s report, the General Assembly, in its 1964 session, amended
Secondly, the Council recommended that “the State Department of Highways be given authority to prohibit the use of controlled access highways by pedestrians, bicycles, horse-drawn vehicles, self-propelled farm or construction machinery or equipment, and animals led, ridden or driven on the hoof.” Id. at 7 (emphasis added). This recommendation resulted in the enactment of
The State Highway Commission may, when necessary to promote safety, prohibit the use of interstate highways . . . and other controlled access highways or any part thereof by any of the following: (1) Pedestrians, (2) persons riding bicycles, (3) horse-drawn vehicles, (4) self-propelled machinery or equipment, and (5) animals led, ridden or driven on the hoof.”
The omission of “farm” and “construction” in the statutes suggests that the General Assembly recognized that machinery and equipment were operated upon the highways for uses other than “farm” and “construction” purposes. I think that the report of the Virginia Advisory Legislative Council clearly indicates that the legislature did not have in mind every conceivable mechanical contrivance that man can imagine, but rather those types of self-propelled machinery and equipment usually designed for and associated with agricultural and construction work. The absence of any reference to a moped indicates that the General Assembly did not consider it “self-propelled machinery or equipment.” Even if in existence at the time, they clearly would have been included in the term “motor vehicle.” The primary purpose of machines and equipment is to generate energy with which to perform work. A moped has no connection with work. I find nothing in the legislative history of the statutes which indicates that mopeds are ordinarily considered instruments to accomplish work, as is the case with machines and equipment.
In 1981 the General Assembly made several significant changes in
A bicycle-like device with pedals and a helper motor which is rated at no more than two brake horsepower and which produces speeds at up to a maximum of thirty miles per hour. . . . For purposes of Chapter 4 (§ 46.1-168 et seq.) of this title, a moped shall be a vehicle while operated upon a highway.
Chapter Four of the Motor Vehicle Code is entitled Regulation of Traffic. This chapter encompasses
Also in the 1981 session, the General Assembly amended
The State Highway and Transportation Commission may . . . prohibit the use of interstate highways . . . by any or all of the following: (1) Pedestrians, (2) persons riding bicycles or mopeds, (3) horse-drawn vehicles, (4) self-propelled machinery or equipment, and (5) animals led, ridden or driven on the hoof.
The legislative intent to equate mopeds with bicycles and not “self-propelled machinery or equipment” is reinforced by comparing various definitions throughout Title 46.1. First, a “motor vehicle” is defined as “self-propelled” in
Finally, I am cognizant of three opinions of the Attorney General stating that a moped is “self-propelled machinery or equipment,” and that it is, therefore, covered by
The Commonwealth acknowledges that no Virginia case discusses this issue, and from other jurisdictions cites State v. Senko, 457 A.2d 824 (Me. 1983); Royal-Globe Insurance Co. v. Schultz, 385 Mass. 1013, 434 N.E.2d 213 (1982); Lalomia v. Bankers & Shippers Insurance Co., 312 N.Y.S.2d 1018 (1970), aff‘d, 291 N.E.2d 724 (1972); Myers v. State Farm Mutual Auto Insurance Co., 502 A.2d 676 (Pa. Super. Ct. 1985); People v. Jordan, 75 Cal. App. 3d 1, 142 Cal. Rptr. 401 (1977); United States v. Stancil, 422 A.2d 1285 (D.C. App. 1980), in support of its position. All of these cases are readily distinguishable from the pending case.
Senko was based upon a statutory provision in Maine which defined a “motor vehicle” as “any self-propelled vehicle not operated exclusively on tracks.” 457 A.2d at 825. Royal-Globe Insurance was decided upon an insurance policy which defined “auto” as “a land motor vehicle.” The defendant admitted that a moped moved over land and had a motor. The court concluded that a moped was a “land motor vehicle.” 385 Mass. at 1013, 434 N.E.2d at 213-14. In Lalomia, a motorized bicycle was held to be a motor vehicle within the meaning of an uninsured motorist endorsement contained in an insurance policy. 312 N.Y.S.2d at 1024. In Myers, a moped was determined to be a motor vehicle because it “was required to be licensed” under that state‘s law. 502 A.2d at 677-78. In Jordan, a moped was considered a motor vehicle in a drunk driving case, 75 Cal. App. 3d at 7, 142 Cal. Rptr. at 405; and in Stancil a moped was considered a “motor vehicle” for purposes of a statute governing unauthorized use of a vehicle. 422 A.2d at 287-88. However, these cases are unlike the pending case because the Commonwealth admits that, by statutory definition, a moped is not a motor vehicle in Virginia.
The most analogous opinion from another state is Velez v. Criterion Insurance Co., 461 So. 2d 1348 (Fla. 1984), where the issue before the court was whether a moped was a self-propelled vehicle. The Florida Supreme Court held that for purposes of the Florida Automobile Reparations Reform Act, the statue in question unambiguously defined a moped as a bicycle. It further held that a bicycle was not a motor vehicle as defined and concluded that the legislature did not intend that a moped be considered a self-propelled vehicle. Id. at 1349.
I would hope that a moped is not a “motor vehicle or any self-propelled machinery or equipment” within the meaning and intent of