154 S.E. 579 (Va. 1930), Thompson v. Smith

Citation:154 S.E. 579, 155 Va. 367
Opinion Judge:EPES, J.
Party Name:W. L. THOMPSON v. D. C. SMITH, Chief of Police.
Attorney:A. S. Hester, for the appellant. T. G. Hobbs, for the appellee.
Judge Panel:Absent, Campbell and Holt, JJ. CAMPBELL and HOLT, JJ., absent.
Case Date:September 12, 1930
Court:Supreme Court of Virginia

Page 579

154 S.E. 579 (Va. 1930)

155 Va. 367

W. L. THOMPSON

v.

D. C. SMITH, Chief of Police.

Supreme Court of Appeals of Virginia.

September 12, 1930

Page 580

Appeal from Corporation Court of Lynchburg.

Bill by W. L. Thompson against D. C. Smith, Chief of Police of the City of Lynchburg. From a decree dismissing the bill upon demurrer, plaintiff appeals.

Reversed and remanded.

While a city, in the exercise of its police power, may revoke driving permits for some cause unrelated to the use of the public highways and the safety of persons and property thereon, it must do so by legislative enactment and not by administrative edict.

VIRGINIA REPORTS SYNOPSIS

Appeal from a decree of the Corporation Court of the city of Lynchburg. Decree for defendant. Complainant appeals.

Reversed.

The opinion states the case.

Page 581

[155 Va. 371] A. S. Hester, for the appellant.

T. G. Hobbs, for the appellee.

Absent, Campbell and Holt, JJ.

OPINION

EPES, J.

W. L. Thompson appeals from a decree entered on March 15, 1929, by the Corporation Court of the city of Lynchburg [155 Va. 372] dismissing upon demurrer a bill in chancery filed by him against D. C. Smith, chief of police of said city, in which he prays that said chief of police be enjoined from interfering with his operation of his private passenger automobile on the streets of Lynchburg, and that the chief of police be compelled to restore to him his permit to operate a private automobile on said streets, which permit it is alleged the chief of police has revoked, acting under the italicized provision of sub-section ‘ c‘ of section 134 of the general ordinances of the city of Lynchburg below quoted.

Section 134 of the general ordinances of the city of Lynchburg, as amended by an ordinance adopted September 22, 1925, reads as follows:

‘ (a) It shall be unlawful for any person (other than transients remaining in the city exceeding seven days) to drive or operate any motor vehicle upon the streets of the city until a permit so to do has been issued to such person by the chief of police.

‘ (b) Any person desiring to secure such permit shall apply in person therefor to the chief of police, who shall cause such applicant to be carefully examined as to his or her ability to safely and properly operate motor vehicles upon the streets of the city, and as to his or her knowledge of the traffic laws of the State of Virginia and city of Lynchburg. And no permit shall be issued to such person unless such examination shall disclose that he or she possesses such ability and knowledge as, in the judgment of the chief of police, qualifies such person to receive such permit. And in no event shall any such permit be issued to any person under the age of sixteen years. * * *

‘ (c) The person to whom such permit shall be issued, shall pay a fee of $1.00 therefor; and such permit shall always be carried by such person while operating any motor vehicle upon the streets of the city, and shall be presented by such person to any police officer upon request. Such [155 Va. 373] permit shall be perpetual unless revoked as provided in this chapter. Conviction of a felony, or of violating the prohibition law, shall revoke such permit for a period of twelve months and conviction of the violations of the traffic laws three times within one year shall revoke such permit for such time as the judge of the municipal court may direct, not to exceed one year. The chief of police is authorized and directed to revoke the permit of any driver who, in his opinion, becomes unfit to drive an automobile on the streets of the city, with the right to the holder of such permit to apply to the judge of the municipal court to have his permit reinstated.

Prior to said amendment of September 28, 1925, section 134 read just as it now does, except that it did not contain the last two sentences

Page 582

of sub-section ‘ c,‘ which were added by said amendment.

After setting forth the said ordinance, the amendment thereof, and that Thompson had been issued the permit revoked by the chief of police prior to September 28, 1925, the bill alleges the following facts:

When said permit was issued to him, Thompson then possessed, and has always since possessed, all the requirements, ability and knowledge required by said ordinance as a prerequisite to the issuance of a permit to drive an automobile on the streets of Lynchburg. Thompson is the owner of the automobile which he was driving at the time his permit was revoked, and had been driving an automobile on the streets of Lynchburg for more than ten years without any complaint having been made as to his ability to drive an automobile safely and properly. He has not become in any way incapable of driving an automobile since his permit was granted. He has not been convicted of any offense for the conviction of which said ordinance authorizes the revocation of his permit.

The circumstances of the revocation of Thompson's permit were these.

[155 Va. 374] Prior to the revocation of his permit he had been twice convicted before the judge of the municipal court of the city of Lynchburg of speeding on the city streets, and on each conviction was fined $50. He did not appear to make any defense on either occasion. On the second trial the judge of the municipal court at first ordered Thompson's permit revoked; but when it was brought to his attention that the ordinance authorized him to revoke a permit for a conviction of violating the traffic laws only when the defendant has been convicted three times within one year, he so modified his judgment as to omit the revocation of the permit.

Thompson continued to drive his car in the city of Lynchburg for some time after said second conviction without any interference from the police; but in November, 1928, he was summoned to appear before the judge of the municipal court on the charge of driving a car without a permit. When the case was heard Thompson claimed to have a permit, and testified he had not received any notice from anyone that his permit had been revoked. The chief of police testified that he had written Thompson that his permit had been revoked, but that he did not know whether Thompson had gotten the notice or not.

The judge of the municipal court held that Thompson could not be convicted on this testimony of driving without a license or permit; but instructed the chief of police to notify him there and then that his permit was revoked. The chief of police then and there in open court notified Thompson that his permit was revoked; but no reason was given at the time for the revocation of his permit by either the judge of the municipal court or by the chief of police.

The bill charges that the chief of police in revoking this permit acted under the italicized provision of sub-section ‘ c‘ of section 134 of the general ordinances, as amended, hereinbefore quoted; and that the chief of police was [155 Va. 375] without authority to revoke said permit for the following reasons:

(1) Thompson had acquired a vested right in his permit prior to the time the ordinance was amended so as to provide for the revocation of permits; and if this amendment is intended to apply to permits granted before it was adopted it is void, because it violates section 58 of the Constitution of Virginia which prohibits the passage of ex post facto laws or laws impairing the obligation of contracts.

(2) The provision authorizing the chief of police ‘ to revoke the permit of any driver who, in his opinion, becomes unfit to drive an automobile on the streets of the city‘ is void, because it is a delegation of legislative power to an administrative officer, in that it authorizes the chief of police to revoke a permit whenever, in his opinion, the holder thereof has done or omitted to do something, the doing or omission of which the chief of police thinks renders the holder unfit to drive an automobile on the streets of the city, without prescribing any uniform rule, applicable to all persons alike, as to what constitutes unfitness to drive an automobile on the streets of the city, or laying down any rule for the guidance and control of the chief of police in determining what constitutes unfitness to drive an automobile on the streets of the city.

The bill further alleges that if Thompson be deprived of the right to drive his automobile on the streets of the city ‘ he will sustain irreparable injury in his pursuance of happiness and in acquiring and the use of his property.

The sole ground of demurrer stated is that ‘ the bill on its face shows that the plaintiff has a remedy at law to have his rights in this case determined, in that the ordinance set forth in said bill provides that the plaintiff shall have the right to apply to the judge of the municipal court to have his permit reinstated, and that said plaintiff has failed to exercise his legal right and cannot apply for an injunction [155 Va. 376] until he has exhausted his legal remedy.‘ The trial court sustained this ground of demurrer and dismissed the bill.

The contention made by the appellant that the ordinance under which his permit was granted provided that it should ‘ be perpetual unless revoked as provided in this chapter,‘ and that as no provision was made in said chapter for revocation thereof, therefore,

Page 583

the city could not thereafter by amendment of the ordinance provide for revocation of his permit, is not well made. The power of a city to control and regulate the use of its streets is a continuing power to be exercised as often and whenever the city may think proper. Washington, etc., Ry. Co. v. City Council of Alexandria, 98 Va. 344, 36 S.E. 385. The issuance and revocation of such permits by a city is merely a means of exercising the police power of the State delegated to the city to regulate the use of the public highways in the interest of the public safety and welfare. The Constitution of Virginia...

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74 practice notes
  • 667 P.2d 1327 (Ariz.App. Div. 1 1982), 1 CA-CIV 5178, Beach v. City of Phoenix
    • United States
    • Arizona Court of Appeals of Arizona
    • September 9, 1982
    ...entitlement is not a mere privilege, but a paramount right. See Beltran v. Stroud, 63 Ariz. 249, 160 P.2d 765 (1945); Thompson v. Smith, 155 Va. 367, 154 S.E. 579 (1930); 39 Am.Jur.2d Highways, Streets and Bridges § 192, at 570 (1968). As public trustee, the city is charged with a duty to k......
  • 121 A.2d 816 (Md. 1956), 140, Pressman v. Barnes
    • United States
    • Maryland Court of Appeals of Maryland
    • April 10, 1956
    ...to carry out the legislative will, legislation delegating such discretion without such restrictions may be valid. Thompson v. Smith, 155 Va. 367, 154 S.E. 579, 71 A.L.R. 604; American Baseball Club of Philadelphia v. City of Philadelphia, 312 Pa. 311, 167 A. 891, 92 A.L.R. 386, 410; Matz v.......
  • 65 So.2d 575 (Miss. 1953), 38493, Continental Southern Lines Inc. v. Klaas
    • United States
    • Mississippi Supreme Court of Mississippi
    • June 8, 1953
    ...592 or wagon thereon, or to operate an automobile thereon, for the usual and ordinary purposes of life and business.' Thompson v. Smith, 155 Va. 367, 154 S.E. 579, 583, 71 A.L.R. 604, 610. There seems to be no dissent among the authorities on this proposition. See 11 Am.Jur. Constitutional ......
  • 199 A. 236 (Vt. 1938), Village of Waterbury v. Emery A. Melendy
    • United States
    • Vermont Supreme Court of Vermont
    • May 3, 1938
    ...ex rel. Srigley v. Woodworth, 33 Ohio App. 406, 169 N.E. 713; Gulf Ref. Co. v. Dallas (Tex. Civ. App.), 10 S.W.2d 151; Thompson v. Smith, 155 Va. 367, 154 S.E. 579, 71 A.L.R. 604; Hoyt Bros. v. Grand Rapids, 260 Mich. 447, 245 N.W. 509. In Village of St. Johnsbury v. Aron, 103 Vt. 22, 151 A......
  • Free signup to view additional results
73 cases
  • 667 P.2d 1327 (Ariz.App. Div. 1 1982), 1 CA-CIV 5178, Beach v. City of Phoenix
    • United States
    • Arizona Court of Appeals of Arizona
    • September 9, 1982
    ...entitlement is not a mere privilege, but a paramount right. See Beltran v. Stroud, 63 Ariz. 249, 160 P.2d 765 (1945); Thompson v. Smith, 155 Va. 367, 154 S.E. 579 (1930); 39 Am.Jur.2d Highways, Streets and Bridges § 192, at 570 (1968). As public trustee, the city is charged with a duty to k......
  • 121 A.2d 816 (Md. 1956), 140, Pressman v. Barnes
    • United States
    • Maryland Court of Appeals of Maryland
    • April 10, 1956
    ...to carry out the legislative will, legislation delegating such discretion without such restrictions may be valid. Thompson v. Smith, 155 Va. 367, 154 S.E. 579, 71 A.L.R. 604; American Baseball Club of Philadelphia v. City of Philadelphia, 312 Pa. 311, 167 A. 891, 92 A.L.R. 386, 410; Matz v.......
  • 65 So.2d 575 (Miss. 1953), 38493, Continental Southern Lines Inc. v. Klaas
    • United States
    • Mississippi Supreme Court of Mississippi
    • June 8, 1953
    ...592 or wagon thereon, or to operate an automobile thereon, for the usual and ordinary purposes of life and business.' Thompson v. Smith, 155 Va. 367, 154 S.E. 579, 583, 71 A.L.R. 604, 610. There seems to be no dissent among the authorities on this proposition. See 11 Am.Jur. Constitutional ......
  • 199 A. 236 (Vt. 1938), Village of Waterbury v. Emery A. Melendy
    • United States
    • Vermont Supreme Court of Vermont
    • May 3, 1938
    ...ex rel. Srigley v. Woodworth, 33 Ohio App. 406, 169 N.E. 713; Gulf Ref. Co. v. Dallas (Tex. Civ. App.), 10 S.W.2d 151; Thompson v. Smith, 155 Va. 367, 154 S.E. 579, 71 A.L.R. 604; Hoyt Bros. v. Grand Rapids, 260 Mich. 447, 245 N.W. 509. In Village of St. Johnsbury v. Aron, 103 Vt. 22, 151 A......
  • Free signup to view additional results