Does Virginia's war monument statute block demolition of an old high school building that was originally dedicated as a memorial to World War I veterans?

Plain-English summary

In 1920, the General Assembly authorized Dickenson County to levy a special tax to build a "county memorial, industrial and high school building" in Clintwood, which was to "stand as a monument and memorial to the soldiers, sailors and marines from the said county of Dickenson, in the late world's war, who lost their lives in this war." The county built it, and it became Dickenson Memorial High School. Decades later the school was repurposed as an annex, and by 2015 both it and the newer Clintwood High School were abandoned and in poor condition. The County School Board declared the properties surplus and transferred them to the Board of Supervisors. The county wanted to demolish the buildings and return the land to private ownership. The county attorney asked whether Code § 15.2-1812 (the war-monument statute) would block demolition.

The Attorney General said no. Section 15.2-1812 operates prospectively. When DMHS was built in the 1920s, the statute's predecessor protected only Confederate monuments erected by joint action of a county circuit court and board of supervisors, placed on the public square at the county seat. The 1920 Acts of Assembly did not invoke that statutory scheme; they authorized a school building with memorial language attached. The General Assembly did not extend the statute to World War I monuments until 1930, and even then did not make the statute retroactive. The 1997 recodification eliminated the joint-action requirement but again did not declare retroactive application. Following the analysis from the 2017 AG opinion on monument removal (and the prior Danville circuit court decision), the AG concluded DMHS is not a protected monument under § 15.2-1812. The opinion also notes that other restrictions outside § 15.2-1812 might still apply, such as National Historic Preservation Act grant agreements.

Currency note

This opinion was issued in 2018. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. Note in particular that Code § 15.2-1812 was substantially rewritten in 2020 to give localities express authority over war monuments.

Background and statutory framework

The 1920 Act of Assembly (1920 Va. Acts ch. 145) authorized the Board to levy a special tax in 1920 and 1921 to construct a county memorial, industrial, and high school building in Clintwood. The building was to be known as the "Dickenson county memorial, industrial and high school building," with explicit memorial language to World War I dead. A 1922 amendment extended the special-tax period through 1924. In 1930, the General Assembly authorized the Board to convey the building and surrounding property to the Dickenson County School Board (1930 Va. Acts ch. 42).

Code § 15.2-1812 (and its predecessors going back to 1904) protects war and veterans monuments from disturbance. As the 2017 AG opinion (17-032) explained, the protection has expanded over time but always operates prospectively absent a clear indication of retroactive intent. When DMHS was built, the protection covered only Confederate monuments erected by joint action of a circuit court and board of supervisors on a county's public square. The General Assembly extended protection to World War I monuments in 1930 (1930 Va. Acts ch. 76), but in the same legislative session also authorized DMHS's conveyance to the school board without imposing any preservation restriction (1930 Va. Acts ch. 42). The omission of preservation language was significant: the legislature knew how to protect monuments when it wanted to, and chose not to here.

The AG built the analysis on three independent grounds. First, the statutory scheme in 1920 required joint action of board of supervisors and circuit court for a covered monument; the DMHS authorizing Act did not invoke that scheme. Second, the 1920 statute did not cover World War I monuments at all; only Confederate ones. Third, the DMHS structure is not a monument on a public square but a school building; the General Assembly's later expansions of the statute did not retroactively pull this building into the protected category.

Common questions

Why did the county want to demolish a building dedicated to fallen soldiers?
The county had no plans to use either DMHS or the newer Clintwood High School, both of which were in poor condition. Without funds to restore or repurpose them, the practical alternative was demolition and returning the land to private ownership. The Attorney General did not opine on the wisdom of demolition, only on whether § 15.2-1812 made it unlawful.

Was DMHS really a monument or just a school?
The AG concluded it was a school. The 1920 Act authorized "a county memorial, industrial and high school building" with the precatory description that it should "stand as a monument and memorial" to World War I dead. The dual-purpose phrasing matters: the actual structure was a high school, and the AG concluded the General Assembly authorized a school building, not the kind of stand-alone war monument the protective statute targeted.

Why isn't the 1930 amendment to § 15.2-1812 enough to protect DMHS retroactively?
The Virginia Supreme Court has held that a statute is "to be construed as designed to interfere with existing contracts, rights of action, or suits, and especially vested rights" only when retroactive intent is "expressly declared." The 1930 amendment added World War I monuments going forward but contained no retroactive language. The 2017 AG opinion (17-032) had laid out this same framework.

Are there any other legal restrictions on demolition that the AG flagged?
Yes. The AG specifically noted (in a footnote) that separate protections might attach to the structure through grant funding under the National Historic Preservation Act, including grant-condition restrictions and any prior actions of the Board or the School Board affecting the property. The opinion encouraged careful investigation of the history of the property before proceeding.

Does this opinion mean Virginia localities can demolish any old war memorial?
No. The opinion is specific to DMHS and to the application of § 15.2-1812 (in its pre-2020 form) to this particular building. Each monument's status depends on when it was built, what statutory regime was in force then, whether a specific Act of Assembly authorized it with preservation language, and whether donation or grant restrictions attach.

Citations

• Va. Code § 15.2-1812 (pre-2020 version)
• 1920 Va. Acts ch. 145 (authorizing tax for DMHS)
• 1922 Va. Acts ch. 95 (extending tax)
• 1930 Va. Acts ch. 42 (authorizing conveyance to school board)
• 1930 Va. Acts ch. 76 (extending § 15.2-1812 to World War I monuments)
• 1997 Va. Acts ch. 587 (1997 recodification)
• Bailey v. Spangler, 289 Va. 353 (2015) (statutes prospective absent express retroactive intent)
• Cuccinelli v. Rector & Visitors of the Univ. of Va., 283 Va. 420 (2012) (courts do not import language across statutes)
• 2015 Op. Va. Att'y Gen. 120
• 2017 Op. Va. Att'y Gen. 219 [17-032]

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/opinions/2018/17-044-Mullins-issued.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring
Attorney General

September 28, 2018

Stephen W. Mullins, Esquire
Dickenson County Attorney
Post Office Box 250
Castlewood, Virginia 24224

Dear Mr. Mullins:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of
the Code of Virginia.

Issue Presented
You have asked whether the Dickenson County Board of Supervisors (the "Board") would violate
§ 15.2-1812 of the Code of Virginia if it authorized the demolition of a building formerly used as a high
school for Dickenson County, given that the building was constructed in memory of the soldiers, sailors
and marines of Dickenson County who lost their lives in World War I.

Background
In 1920, the General Assembly authorized the Board to levy a special tax in 1920 and 1921 "for
the construction of a county memorial, industrial and high school building, the said building to be built in
the town of Clintwood."[1] The legislation provided that the resulting building would be known as the
"Dickenson county memorial, industrial and high school building" and that it "shall stand as a monument
and memorial to the soldiers, sailors and marines from the said county of Dickenson, in the late world's
war, who lost their lives in this war."[2] Two years later, the General Assembly extended the time period
for the special levy through 1924, again reaffirming that the building would stand as a monument to
service members who lost their lives in World War I.[3] In 1930, the legislature authorized the Dickenson
County Board of Supervisors to convey the "Dickenson County Memorial and Industrial High School
building" and attendant property to the Dickenson County School Board.[4] After several decades the
school, by then known as Dickenson Memorial High School (DMHS), was used as an "annex" to a newly
constructed Clintwood High School.

You relate that the Clintwood High School building has itself been abandoned, and that both
Clintwood High School and the DMHS building are in poor condition. In November 2015, the Dickenson
County School Board declared Clintwood High School and the DMHS building to be surplus property
and transferred ownership to the Dickenson County Board of Supervisors.[5] The Board accepted
ownership of the properties in March 2016.[6] You relate that the County has no plans to use these
buildings and would like to demolish them and return the property to private ownership.

Applicable Law and Discussion
As I have previously opined, "[t]he importance of honoring all of our veterans, especially those
who have given their lives and paid the ultimate sacrifice for us, our country and our freedoms, cannot be
overstated. These brave men and women deserve our full support, and the General Assembly has chosen
to extend certain protections to monuments honoring their service."[7] But whether legal restrictions would
bar removal of a war monument depends on the "circumstances surrounding the individual monument."[8]

Last year, this Office issued an opinion containing guidance on the protections provided by the
statute now codified at § 15.2-1812 of the Code of Virginia.[9] As currently codified, the statute authorizes
any locality, within its geographic limits, to erect a monument or memorial to any war or conflict.[10] It
then provides that "[i]f such are erected, it shall be unlawful for the authorities of the locality, or any other
person or persons, to disturb or interfere with any monuments or memorials so erected" or prevent
citizens from taking steps to preserve or care for the same.[11]

As originally codified in 1904, however, the statute had a much more limited scope, applying
only to "the erection of a Confederate monument upon the public square of [a] county at the county seat
thereof," when so authorized by joint action of the county's board of supervisors and circuit court.[12] If a
monument was so erected, the statute barred anyone from "thereafter ... disturb[ing] or interfer[ing]
with" it.[13] It was not until 1930 that the General Assembly extended these statutory protections to
monuments to the "World War,"[14] and not until 1997 that the requirement of joint action of the county's
board of supervisors and circuit court was eliminated.[15]

The "general rule is that no statute, however positive in its terms, is to be construed as designed to
interfere with existing contracts, rights of action, or suits, and especially vested rights, unless the intention
that it so operate is expressly declared."[16] If the General Assembly omits a clear manifestation of intent to
retroactively apply a statutory change, the general conclusion is that such an application is to be
avoided.[17] It is also instructive when the General Assembly fails to enact legislation that would have made
a statutory provision apply retroactively.[18]

Applying these principles here yields the conclusion that DMHS is not a monument or memorial
entitled to the protections of § 15.2-1812. First, when DMHS was constructed in the 1920s, the statute
protected only monuments that had been erected by joint action of a county's circuit court and its board of
supervisors. DMHS was not constructed pursuant to that statutory scheme.

Second, the statutory protections in place in 1920 covered only Confederate monuments, not
World War I monuments. When the General Assembly revised the statute in 1930 to protect World War I
monuments, it omitted any intent to extend protections to existing monuments. While it is not dispositive,
it also bears noting that earlier in that same legislative session, the General Assembly authorized the
Board to convey DMHS to the Dickenson County School Board without imposing any restriction on the
School Board's ability to disturb or alter the structure.[19]

Third, at the time of DMHS's construction, the statute protected only monuments constructed
"upon the public square of [a] county at the county seat thereof."[20] Notwithstanding the precatory
language accompanying DMHS's construction, that it would "stand as a monument and memorial to the
soldiers, sailors and marines" who died in World War I,[21] the nature of a high school facility
distinguishes it from the type of war monument that the General Assembly authorized county boards of
supervisors and circuit courts to construct "upon the public square."

Finally, in the case of numerous other war monuments and memorials that the General Assembly
has authorized through legislation, the General Assembly has imposed permanent restrictions on the
removal of the memorial.[22] The omission of any such language from the legislation authorizing
construction of DMHS suggests that the General Assembly did not intend for the same protections to
attach to the building.[23]

Conclusion
Although I support the worthy goal of honoring the brave service members who gave their lives
defending our country, for the reasons stated it is my opinion that the protections that the General
Assembly conferred on certain war monuments in § 15.2-1812 of the Code of Virginia do not extend to
DMHS, and therefore, the Board would not violate the statute by authorizing its demolition.[24]
With kindest regards, I am,
Very truly yours,

Mark R. Herring
Attorney General

1. 1920 Va. Acts ch. 145.
2. Id.
3. 1922 Va. Acts ch. 95.
4. 1930 Va. Acts ch. 42.
5. Dickenson Cty. Sch. Bd., Regular School Board Meeting minutes (Nov. 23, 2015), at 27, available at https://goo.gl/NKTYk5.
6. Roderick Mullins, County accepts deeds to school properties, DICKENSON STAR (Mar. 28, 2016), http://www.thecoalfieldprogress.com/dickenson_star/news/county-accepts-deeds-to-school-properties/article_b81363d4-9dc5-5c65-a0cf-8e8c0aed876b.html.
7. 2015 Op. Va. Att'y Gen. 120, 122.
8. 2017 Op. Va. Att'y Gen. 219, 220.
9. See id. at 220-22.
10. VA. CODE ANN. § 15.2-1812 (2018).
11. Id.
12. 1904 Va. Acts ch. 29.
13. Id. In 1910, the General Assembly amended the statute, adding a second paragraph that authorized county boards of supervisors to appropriate or raise funds for the completion or erection of "a monument to the Confederate soldiers of such county upon the public square thereof, or elsewhere at the county seat," 1910 Va. Acts ch. 17 (emphasis added), but the prohibition on disturbing and interfering with monuments found in the first paragraph continued to apply only to Confederate monuments erected "upon the public square of [a] county at the county seat thereof," id.
14. 1930 Va. Acts ch. 76.
15. 1997 Va. Acts ch. 587.
16. 2017 Op. Va. Att'y Gen. at 223 (quoting Bailey v. Spangler, 289 Va. 353, 359, 771 S.E.2d 684, 686-87 (2015)).
17. Id.
18. Id. at 223-24 (noting that in the face of a decision by the Danville Circuit Court holding that § 15.2-1812 did not apply retroactively, the General Assembly failed to pass legislation that would have required retroactive application).
19. See 1930 Va. Acts ch. 76; 1930 Va. Acts ch. 42.
20. 1910 Va. Acts ch. 17.
21. 1920 Va. Acts ch. 145.
22. 2017 Op. Va. Att'y Gen. at 224-25.
23. See, e.g., Cuccinelli v. Rector & Visitors of the Univ. of Va., 283 Va. 420, 428, 722 S.E.2d 626, 631 (2012) (noting that "when the legislature omits language from one statute that it has included in another, courts may not construe the former statute to include that language" (citation omitted)).
24. I note, however, that separate protections outside the scope of this opinion might attach to the structure, such as those created by reason of grant funding under the National Historic Preservation Act (the "Act"), see generally 54 U.S.C. §§ 300101 to 307108, or other previous acts of the Board or the Dickenson County School Board. See, e.g., 54 U.S.C. § 302902(b)(1)(D) (LexisNexis through Pub. Law No. 115-100, excluding Pub. Law Nos. 115-91 and 115-97) (providing that recipients of grants under the Act must "compl[y] with such further terms and conditions as the Secretary may consider necessary or advisable"). The history of the property and any relevant acts of local government must be carefully investigated to insure that the proposed demolition would not violate other legal restrictions.