Present: Carrico, C.J., Compton, Lacy, Hassell, Keenan, and 

Kinser, JJ., and Whiting, Senior Justice 

BOARD OF SUPERVISORS OF 

FAIRFAX COUNTY 

v. Record No. 962533 OPINION BY JUSTICE BARBARA MILANO KEENAN 

 October 31, 1997 

FCS BUILDING ASSOCIATION 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

M. Langhorne Keith, Judge 

 In this appeal, we consider whether the trial court erred in 

awarding interest on a refund of erroneously assessed real estate 

taxes when the local ordinance authorizing the payment of such 

interest was repealed prior to entry of the final judgment order. 

 In December 1995, FCS Building Association (FCS) filed a 

second amended motion for judgment and application for correction 

of assessments against the Board of Supervisors of Fairfax County 

(Board) for the 1990-1995 tax years regarding two parcels of land 

owned by FCS. In a bench trial, the court modified the 

assessments for tax years 1990, 1991, 1993, 1994, and 1995, and 

ordered the Board to refund FCS the principal amount of 

$129,353.18. The trial court also ordered interest on the refund 

for tax years 1990 and 1991 from the dates the taxes were paid. 

The Board appealed the trial court's judgment solely with respect 

to the award of interest. 

 The Board argues that interest cannot be awarded against a 

local government on a refund of erroneously assessed taxes 

without its consent. The Board notes that the ordinance 

authorizing such interest was repealed in 1992, more than four 

years before entry of the final order in this case. Prior to its 
repeal in April 1992, former Fairfax County Code § 4-4-4 provided 

that 

 [f]or tax year 1980 and subsequent years, all 

erroneously assessed taxes and any penalty and interest 

paid thereon . . . shall be repaid with interest at the 

same rate imposed for delinquent taxes. Such interest 

shall run from the date such taxes were due or were 

paid, whichever is later. 

 The ordinance repealing this provision* specified that the 

repeal was effective immediately, and it did not contain a 

"savings clause" authorizing the payment of interest on any tax 

refunds ordered after the effective date of the repeal. Thus, 

the Board argues that the trial court lacked authority to award 

interest to FCS, although FCS paid the erroneously assessed taxes 

for 1990 and 1991 before the ordinance was repealed. 

 In response, FCS asserts that, since former Fairfax County 

Code § 4-4-4 was effective when the erroneously assessed taxes 

were paid, FCS acquired a substantive right to interest on its 

excess payments at the time the payments were made. FCS alleges 

that this substantive right could not be disturbed by retroactive 

application of the repeal of former Fairfax County Code § 4-4-4. 

 Thus, FCS contends that it is entitled to interest provided by 

the former ordinance despite its repeal. We disagree with FCS. 

 Interest may be awarded against a sovereign only by its 

consent. Railway Express Agency, Inc. v. Commonwealth, 196 Va. 

1059, 1066, 87 S.E.2d 183, 187 (1955); Commonwealth v. Safe 

Deposit & Trust Co., 155 Va. 458, 460, 155 S.E. 897, 898 (1930). 

 A trial court may order interest on a refund of erroneously 

 

 *See Fairfax County Code § 22-92.4 
assessed local taxes only if the payment of interest is 

authorized by an ordinance enacted pursuant to Code § 58.1-3991. 

City of Winchester v. American Woodmark Corp., 250 Va. 451, 460, 

464 S.E.2d 148, 153 (1995); see Code § 58.1-3987. 

 Code § 58.1-3991 permits the governing body of any county, 

city, or town to enact an ordinance requiring the payment of 

interest on refunds of erroneously assessed local taxes. The 

statute requires that any such ordinance provide that interest 

shall run from the date the taxes were due or were paid, 

whichever is later. Absent such an ordinance, the local 

government has not furnished the consent required under the 

common law for the payment of interest by a sovereign. See

American Woodmark, 250 Va. at 460, 464 S.E.2d at 153; Railway 

Express Agency, Inc. v. Commonwealth, 196 Va. 1069, 1072, 87 

S.E.2d 188, 190 (1955); Safe Deposit & Trust, 155 Va. at 460, 155 

S.E. at 898. 

 An ordinance enacted pursuant to Code § 58.1-3991 does not 

create a substantive right but is purely remedial in nature. 

Substantive rights are included in that part of the law 

addressing the creation of duties, rights, and obligations. 

Commonwealth v. Rafferty, 241 Va. 319, 323, 402 S.E.2d 17, 20 

(1991); Rotonda Condominium Unit Owners Ass'n v. Rotonda Assoc., 

238 Va. 85, 89, 380 S.E.2d 876, 879 (1989); Shiflet v. Eller, 228 

Va. 115, 120, 319 S.E.2d 750, 754 (1984). In contrast, remedial 

or procedural laws prescribe methods of obtaining redress or 

enforcement of substantive rights. Rafferty, 241 Va. at 323, 402 

S.E.2d at 20; Shiflet, 228 Va. at 120, 319 S.E.2d at 754. Thus, 
remedial laws do not create rights but merely operate in 

furtherance of already existing rights. See Walke v. Dallas, 

Inc., 209 Va. 32, 35, 161 S.E.2d 722, 724 (1968). 

 Former Fairfax County Code § 4-4-4 was a purely remedial law 

because it provided a taxpayer a means of redress that was 

available only after the taxpayer established a substantive right 

to a refund under Code § 58.1-3984. Once a trial court 

determined that taxes were erroneously assessed against a 

taxpayer and ordered a refund, the former ordinance provided a 

means of redress in furtherance of the taxpayer's already 

existing right to the refund. 

 As a remedial provision, this section was subject to repeal 

at the will of the Board as long as reasonable opportunity and 

time were allowed for the enforcement of substantive or vested 

rights. See Harris v. DiMattina, 250 Va. 306, 312, 462 S.E.2d 

338, 340 (1995); Creteau v. Phoenix Assurance Co., 202 Va. 641, 

645, 119 S.E.2d 336, 340 (1961); Phipps v. Sutherland, 201 Va. 

448, 452, 111 S.E.2d 422, 425 (1959); Duffy v. Hartsock, 187 Va. 

406, 416, 46 S.E.2d 570, 574 (1948). In repealing the ordinance, 

the Board exercised its authority to withdraw consent to pay 

interest on refunds of erroneously assessed taxes. See Railway 

Express, 196 Va. at 1073, 87 S.E.2d at 190. Since the repeal 

provision contained no "savings clause" authorizing interest on 

taxes erroneously paid prior to the repeal, the trial court erred 

in awarding FCS interest pursuant to a repealed ordinance. See

Terry v. McClung, 104 Va. 599, 601, 52 S.E. 355, 356 (1905). 

 For these reasons, we will reverse the trial court's award 
of interest to FCS, modify the judgment accordingly, and enter 

final judgment in favor of FCS. 

 Reversed in part,

modified,

and final judgment.