*1 Richmond Supervisors W. Et Al. v. Board Paul Gordon, of Fairfax Et Al. March
Record No. 6339. Present, J., Buchanan, Snead, C. Eggleston, Gordon, I’Anson and Spratley, JJ. *2 the brief), for on Chambliss, (Hardee Church, W.
Randolph Jr. appellants. Sanders, Louk, G. Jr.; Ralph Kendrick (H. Fitzgerald C. Robert the brief), for on Smith, Attorney; Fitzgerald Commonwealth’s appellees. court. of the delivered J., opinion
I’Anson, ain entered declaratory judgment decree from a is an This apрeal bill of amended and dismissing demurrer sustaining proceeding R. Harriet Gordon Paul W. filed plaintiffs, complaint situ- others all similarly themselves Gordon, “as taxpayers Board affected,” against adversely “as landowners ated” Fairfax (Board), County Airport Fairfax County Supervisors thereof, and others. members individual (Authority), declare the court other things, among Plaintiffs prayed, Fairfax County under provisions had Board no statutory 967-975, Acts of 642, pp. costs $20,000 to preliminary to lend Board had if the that even anof airport; the construction incident resolution it had proper adopted the power from funds treasury; disbursement authorizing had no discretion; and abused had loan. to accept of the Act are as pertinent fol- provisions Airport Authority lows: Section 2 states that the revenue bonds issued shall from tolls and revenues. All incurred payable solely out the of the Act “shall carrying provisions payable solely
the funds under the of the Act.” provided provisions Section 3 that if the Fairfax Board declares that provides there is a need for an in the create an airport county, may airport The exercise authority. conferred the Act is deemed to be the essential performance govern- mental function. The remainder section prescribes organi- zation of the Authority. Under the relevant subsections of Section 4 the given (d) to issue revenue bonds following powers: payable solely tolls and revenues; (e) to fix and collect tolls and fees for the use of (f) to real and airport; in- acquire acсept personal property, *3 and contributions from cluding subdivisions; gifts (h) to political enter land upon any purpose making surveys, soundings, and examinations; to enter into borings with the (j) grant agreements federal for and government airport planning, development operation under the Act; Federal (k) to do all or con- things necessary venient to out the (1) and carry to powеrs bor- expressly granted; row and to issue evidence of indebtedness
Section with the Fair- dealing acquisition property, empowers lease, lend, fax to real to the county grant Author- convey property and of eminent domain. gives ity Section Act, 13 states: “This for the welfare of being Commonwealth its inhabitants, and shall be construed to liberally effect thereof.” purposеs Pursuant of section 3 provisions
Board, 3, 1964, on declared there that was a need for an July in airport created the and the members. county, Authority, appointed announced its intention to
Subsequently construct and on owned and operate airport property by plaintiffs landowners. 19, 1965,
itsAt on a meeting May motion to adopted $20,000 to the amount it to requested com- to сonstruction engineers engaged pensate prepare and drawings in a order for under the Federal specifications apply grant 830 the sale
Act. would be It was that repaid stipulated of bonds to be issued the Authority. the de- erred in court
Plaintiffs contend that the trial sustaining loan; to make murrer that the Board had (1) holding did that the Board (3) that was (2) resolution proper adopted; loan. discretion; (4) abuse accept this that lack (1) Defendants standing prosecute plaintiffs the Board’s (2) that the appeal; question was the enactment rendered moot that under the 1966; (3) Acts of Assembly, principle p. res loan. cannot legality judicata plaintiffs question defendants’ contention We shall first consider plaintiffs “as for this themselves lack appeal taxpayers standing prosecute situated.” all others similarly Nicholas v. 171 S. Lawrence,
Defendants rely upon a demurrer court sustained (1933). E. There trial peti- the removal of the tie-breaker of who tion filed by sought taxpayers After Board of the Norfolk observing Supervisors. officials, we the removal of said that Code provided procedure residents insufficient had as the interest taxpayers appellants had initiated. them to make they proceeding parties proper were not Thus, since the proper parties proceeding taxpayers could not below, we concluded aggrieved by they judg- § 6336, Code of 1919 therein within the ment rendered meaning Vol.), and dismissed 8-462(3) (c) Code of (now the writ. refer Nicholas to our earlier decision in in does
The opinion Hans.) where we said (2 (1883), McWhorter, Roper to restrain have the to resort to local right equity gov- taxpayers their which will ernment officials exceeding any way *4 as such unauthorized affect the making taxpayers, ap- injuriously funds. of corporate propriation have seek Nicholas we held taxpayers
Subsequent which issuance of bonds would relief they alleged prevent equitable Power v. tax burden. Co. Town Appalachian in an result illegal 390, 2d 329, 333, (1939); E. 392 v. 4 S. Va. Vaughan 173 Galax, 335, 386, 341, 4 S. E. 2d 389 (1939). Va. 173 Com- Galax, Town of 421, S. E. Monroe, (1938), Va. 199 487 where we 171 Sauer v. pare, said of a sue on behalf recover municipality may taxpayer has been disbursed he contends which without first illegally
831 sue, authorities to or without that such requesting proper showing been have request unavailing. Moreover, it suits to test the ex- appears taxpayers’ legality local are in state. penditures by governments permitted virtually every Note, A Suits: Taxpayers’ L. Survey 895, 69 Yale Summary, J. 7,n. 902 (1960); Jaffe, Secure Review: Public Standing Judicial 74 Harv. L. Actions, 1265, Rev. (1961).
We hold that this plaintiffs standing prosecute appeal.
Defendants Board’s say question is now as a moot result of the enactment 231, Acts 132, 1966, added fоl p. Assembly, section to the Code: lowing
“The aof in this State governing body county may give, or advance in manner that to it seem funds or any may proper other not otherwise allocated or ob- property, specifically created ligated, any authority governing body pursuant to law.” Code (1964 15.1-511.1 Vol., 1966 Supp.). We do not with defendants’ contention. There is agree in nothing the statute in 1966 to indicate that it was intended to be a adopted “curative statute” validate acts of the Board if designed it did 2 Sutherland, possess pre-existing Construc- power. Statutory tion, (3d ed. Horack 50 Am. 1943); Jur., Statutes, 481, p. noted, It should be however, that the of a statute passage aon subdivision does not conferring power political necessarily pre- clude the Hopkins pre-existence power. Va. Richmond, 703, 86 S. E. 142 (1915), overruled on other grounds Irvine v. 97 S. E. Forge, 310 (1918). Clifton Defendants next that under the doctrine of res judicata are barred from plaintiffs of the Board questioning case in this the final decree in instituted injunction proceeding Gordons, in Authority against suit, plaintiffs present landowners. It is essential to the of the doctrine of res application judicata the identical issue to be has been settled sought relitigated valid in a final to which the identical judgment proceeding or their persons were identical in which privies parties capacities they appear in the later Patterson v. Anderson, 194 litigation. 564, 74 2d E. 200 (1953). S.
832 en- the trial
In the suit judge by brought injunction from and the Gordons other landowners obstructing repre- joined their for the lands from sentatives of entering upon exаminations. The borings soundings, purpose making surveys, to enter of the did not landowners contest upon power 4(h) of the authorized section their lands for the by purposes was not able Act. Their was that financially objection which done. Not them for to only might any damage compensate not decided financial was the of the issue ability Authority’s by defend on court, could not but landownеrs ground for the land taken or that it have no to money pay Authority might would incur an indebtedness Light City ability pay. beyond 276, 181, 197, (1937). 190 E. 282 Hence Danville, S. 168 here. doctrine res judicata applicable contention, first Board We now turn to plaintiffs’ $20,000 be used did not have the to lend power for the site drawings specifications airport. preparation whether the Board In determining are to the genеral Authority, guided principle money statute are fixed are of boards supervisors only powers are conferred such as implication. expressly Johnson 235, 501, 2d 502 (1965); 142 S. E. v. Goochland Counties, 5 Mich. Jur,, p. did was made Act
At the time the loan Airport Authority to the to lend expressly give authorization. Hence our there was no other statutory express to whether Board be directed must possеssed inquiry make the loan necessary implication expressed powers decisions as to what are the Act. found conflicting indicate expressed powers particular necessarily implied this 2 McQuillin, determine See, test to no there is question. specific § 10.12, ed. (3d Rev. 1966); p. Corporation, Municipal Law, 5.03, 221 (Rev. 1966). ed. Antieau, p. Corporation Municipal since the authorizes the Board expressly Plaintiffs argue and is silent as real property was indicative of intent that this legislative As further evidence of the not to power. legis- § Acts of As- intent, p. lative they point Act, Industrial 1964, of the Development sembly, Vol., Water and 15.1-1250(hl), Sewer Code Authorities counties to lend empowered to authorities.
However, it the maxim must be remembered that that the mention of оne the exclusion of another is an aid to thing implies statutory *6 § construction, Statutes, not a rule Am. of law. 50 Jur., p. While section 5 of Act the does the Airport expressly empower Board to lend estate and as real is silent it does neces- follow that the intended to exclude the sarily legislature power the with the In- money Authority. Similarly, comparison dustrial Act and the Water and Sewеr Development Authority Authorities Act is not conclusive on the the of intent of the question with when the Act is read legislature respect as a whole and its are considered. purposes determine whether the Board’s
To lend the money the we must look to the and Authority necessarily implied, purposes Sutherland, Act in of the Construction, objects question. Statutory 1943). ed. Horack (3d Seсtion 13 directs that the Act p. construed to effect the thereof. liberally purposes the authorizes Board to create Section the expressly In the for which it was created the undertaking project need would be in of funds. However, in the Authority necessarily of the the of would early stages development airport, Authority revenue or tolls and Furthermore, not have аvailable bond rentals. which from the federal government, grant per- mitted under section would 4(j) accept provide only of the advance costs. 49 U. S. C. planning engineering portion §§ 1103, Thus if 1107(a), 1113. could not look to the advance of funds to Board for an the Board started, get project have created an ineffective agency, probably obviously the intent of the beеn Since the Act legislature. to receive of real authorizes gifts personal property 4(f)) (section subdivision authorizes political (section 5), to lend real the Board property contemplates that the Board would with the assist- provide Hence, of the Act. effect the ance to conclude that the purposes Board to funds to the for organizational costs is planning development necessarily implied to create and to assist it in expressed power started; getting we have said that the enactment in 1966 of 15.1-511.1 Although curative it a does not nor is preclude pre-existence power, statute, evidence that our conclusion is at least some intent to make contrary legislative with to the existence of resрect power. the Board to that the motion
Plaintiffs ap adopted by argue was not in the form of lent money propriate a Vol., resolution, 15.1-605(b), 1964 as Code required which reads: nor
“No shall be drawn from treasury county, incurred, ex shall any obligation expenditure ” # resolutions. cept pursuance appropriation the subsection is to insure that the direc- Obviously purposе makes from the tor finance no disbursements until treasury item is the Board of Supervisors. approved the motion the Board constitutes substantial adoption with the for an resolution. appropriations compliance requirement *7 that the Board met as a The record shows collective body passed We do not think the failure motion to lend to use the money. is a or “rеsolution” fatal defect in the words “resolved” appropria- tions procedure. that even if Board had the
Plaintiffs power in this case amounted to an abuse of discretion. cite v. 77 Va. at McWhorter, where it was Roper supra, They members of council board city county alleged super- faith acted in bad and in violation of their visors trust in public of ferries to a terms of a lease The court private party. agreeing upon that the there that even said assuming city county power ferries, the circumstances to lease execution of surrounding the court in it void. the lease declaring justified are this case The facts of The Roper. clearly distinguishable with an created here it to meet the authority dealing by the loan was Since needs county. purpose aiding function, essential there has governmental Authority perform trust or abuse of discretion. no violation been public County Development Authority Coyner, In Fairfax 2d (1966), E. 360, 150 S. advance of funds upheld the Industrial Board to made cover Development Authority the sale bonds, of revenue pending amount would reimburse the the sale of the bonds. county upon The Act in Coyner funds, expressly granted appropriate and that is However, here. once the is found implied to exist here, our on the loan in Coyner controls this ruling point. Plaintiffs’ final contention is that the was barred Act under which it was created from the loan. accepting do not They has been dispute granted to borrow, for section 4(1) it “to borrow and to empowers * * * issue bonds or other evidence of indebtedness.” They say the loan from the Board exceeded the limits placed upon to incur second obligations section which paragraph pro- vides, in that “no part, shall incurred liability obligation hereunder extent which beyond shall have moneys been under the provided of this Act.” provisions Plaintiffs that the argue “shall been phrase means provided” must “have sufficient funds on hand before incur- liabilities or The ring effect of their obligations.” interpretation be that the could not issue bonds until had a sum equal amount of bonds to be issued. We do not with agree plaintiffs’ argument. to have funds on hand to meet required rows before it bor- obligations Furthermore, it is any money. that the loan contemplated will from the repaid revenue bonds to be issued.
For the stated, reasons judgment
Affirmed. J., dissenting. Gordon,
For
this Court has adhered
years
many
rule that “[t]he
*8
of the Boards are fixed
statute
Supervisors
and are
only
such as are conferred
or
expressly
by necessary
Board
implication”.
Supervisors
Corbett,
167,
206 Va.
174,
loans: authority * * * notes, bonds to issue . .. To borrow [and] and empowered: has town which Any county, city, . . . or other obligations formed A authority to such [Emphasis authority may or joined 1964). vol. (hi) Ann. 15.1-1250 Va. Code (Repl. supplied] the creation section of authorizing In the comparable with General Assembly the Fairfax County Airport “The make loans: for Fairfax held County authority any # ** authorized empowered: hereby Authority] [the Airport notes, bonds, bonds, issue and to refunding borrow money [T]o indebtedness evidence Authority.” or other certificates 1964, ch. at Acts of Assembly inad- assumes the General Assembly
The majority apparently make loans when Fаirfax authority failed to County give vertently I believe Act. Fairfax enacted County Airport inad- acted General consciously, assume Assembly should it in- conclude reason to absence of in compelling vertently, it did not what say. tended § 15.1-511.1 in of Code the enactment that concedes
The majority counties to lend 1966, which general gives made Fair- them, cannot validate creаted authorities Code 15.1-511.1 is in because to the Authority fax County ch. 231; at Va. Acts statute”. Assembly “curative a After con- 1966). § 15.1-511.1 making Ann. (Supp. Va. Code “is 15.1-511.1 least enactment at cession, the says majority that the Board conclusion our evidence some intent”. “Evidence” legislative the loan contrary make intent not have in did contrary General Assembly that the General however, to a holding Assеmbly cannot support, implication. by necessary conferred Fairfax holds Secondly, majority *9 the to lend the County’s power necessarily implied This necessary. without any showing deemed can be showing only upon implication without have functioned could not borrowing could knew the and the General Assembly The from the have functioned without majority County. borowing “[Ijf can can no sаy only: showing. majority point an advance Board for could not look to [Fairfax] would started, probably funds to get project have been could not created an ineffective obviously agency, words, these intent of By legislature.” [Emphasis supplied] must does not County’s power majority Act; the intent of out majority carry implied necessarily might implied. only suggests has no basis for Furthermore, assuming majority funds “for an advance of to the “look” only from the record in We know started”. pending get project obtained another case that financing temporary Fair- as were same bank to defrayed by type expenses defray Industrial Development loan to fax County’s Harold F. Suthers, Chairman, the City Chesapeake Au- The bank lent No. 6589. etc., Record Chesapeake site “the cost and (among things) thority defray fees”. The architectural . . . engineering pur- [and] preparation was “to com- of Fairfax County’s pose with their accordance agreement previous engineers pensate site drawings specifica- preparation accomplishment ...” tions the decree the demurrer and reverse
I therefore sustaining amended bill complaint. dismissing plaintiffs’ in this dissent. concurs J., Snead,