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Sink v. Commonwealth1/21/1992
rom exercising its governmental functions and that an agent of the Commonwealth may not waive the right of the Commonwealth to exercise its governmental function of enforcing the Habitual Offender Act.
(4) "Waiver is the intentional relinquishment of a known right with both knowledge of its existence and an intention to relinquish it." Roenke v. Virginia Farm Bureau Mutual Ins. Co., 209 Va. 128, 135, 161 S.E.2d 704, 708-09 (1968). The effect of a waiver is to "estop" one from the exercise of a right. Id. at 135, 161 S.E.2d at 709. See also Richmond Leather Mfg. Co. v. Fawcett, 130 Va. 484, 505-06, 107 S.E. 800, 808 (1921); Miller & Co. v. Lyons, 113 Va. 275, 290, 74 S.E. 194, 200 (1912); 19 Michie's Jurisprudence, Waiver § 2 (1991).
(5) The doctrine of estoppel does not apply to bar the rights of the Commonwealth when acting in its sovereign or governmental capacity. Westminster-Canterbury of Hampton Roads, Inc. v. City of Virginia Beach, 238 Va. 493, 503, 385 S.E.2d 561, 566 (1989). Likewise, the doctrine of laches may not be set up as a defense against the Commonwealth. See In re Dep't of Corrections, 222 Va. 454, 465, 281 S.E.2d 857, 863 (1981). This result follows because the legislature alone has the authority to define and mandate governmental functions. Main v. Dep't of Highways, 206 Va. 143, 150, 142 S.E.2d 524, 529 (1965).
(6) Reason and policy dictate that the state may not waive the exercise of its governmental function. There is an even less compelling
reason to apply the doctrine of waiver to the state than to apply the doctrine of estoppel. An element of estoppel is that the party asserting the estoppel must have acted upon the conduct of the other party. Khoury v. Community Memorial Hospital, Inc., 203 Va. 236, 243, 123 S.E.2d 533, 538 (1962). However, a waiver only requires the intentional unilateral act of the party against whom the waiver is asserted and does not require reliance by the party asserting the waiver. See Miller & Co. v. Lyons, 113 Va. at 289-90, 74 S.E. at 200. Waiver focuses on the intent of the party against whom the waiver is asserted; estoppel focuses on the reaction of the party to the conduct of the party against whom the estoppel is asserted. Under the theory advanced by appellant, a person unharmed or unaffected by state action (waiver) could benefit therefrom; a person harmed or affected in reaction to other state action (as in estoppel) would have no relief because, as noted above, the doctrine of estoppel does not prevent the Commonwealth from enforcing laws in its governmental function.
(7) Because the Commonwealth may not be estopped to enforce the Habitual Offender Act, we hold that action or inaction by an agent of the Commonwealth cannot be construed as a waiver giving rise to the effect of estopping the Commonwealth from enforcing the law. Thus, even if the actions or inactions complained of by Sink constituted a waiver, which we do not suggest they did, the Commonwealth was not barred from enforcing the Habitual Offender Act.
The judgment is affirmed.
Affirmed.
Disposition
Affirmed.
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