Barber v. City of Danville

• Decision Date: 19 January 1928
• Citation: 149 Va. 418
• Parties: ERNEST BARBER v. CITY OF DANVILLE.
• Court: Virginia Supreme Court

Page 418

149 Va. 418

ERNEST BARBER v. CITY OF DANVILLE.

Supreme Court of Virginia, Richmond.

January 19, 1928.

Absent, Burks, J.

1. INTOXICATING LIQUORS — Municipal Corporations — Regulation of Liquor Traffic — Outside of City Limits. — The legislature may confer upon a municipality full power to regulate the liquor traffic and control its use in every particular, within the corporate limits of the municipality and within a reasonable radius thereof.

2. INTOXICATING LIQUORS — Construction of Prohibition Statute. — It is the policy of the courts to give to the prohibition statute a fair construction in the light of its enactment, and if the legislative intent can be gathered from its language, it should be given effect.

3. CRIMINAL LAW — Jurisdiction Fixed by Statute — Act an Offense at One Place but not at Another. — The territory over which a court is to exercise jurisdiction is a matter to be fixed by statute, and if an act is an offense if committed at one place, but not an offense if committed at another, then it is incumbent on the prosecutor to allege and prove that the act was done at the former place. If it is doubtful the prosecution must fail.

4. STATUTE — Construction — Penal Statute not Extended by Implication. — A penal statute cannot be extended by implication or construction. It cannot be made to embrace cases not within the letter though within the reason and policy of the law. To constitute an offense the act must be both within the letter and spirit of the statute defining it. Those who contend that a penalty is imposed must show that the words of the act distinctly cover the case. If a penal statute is so ambiguous as to leave reasonable doubt of its meaning, it is the duty of the court to refuse to impose the penalty.

5. INTOXICATING LIQUORS — Enforcement of Prohibition Act by Municipality Beyond the Boundaries of the Municipality — Construction of Code of 1924, Section 4675(34). — In construing section 4675(34) of the Code of 1924, extending the jurisdiction of a mayor or police justice over territory continuous to a city or town within three miles of the city or town limits, in regard to the manufacture, sale or distribution of ardent spirits upon which the city ordinance in the instant case was based, it is to be presumed that the legislature has embodied in the statute all the authority it has designed to grant a municipality, and the court cannot by implication read into the statute something that was not contemplated by the legislature.

6. INTOXICATING LIQUORS — Extension of Jurisdiction of Municipality — Code of 1924, Section 4675(34) — Case at Bar. — In the instant case, a prosecution for the violation of a city prohibition ordinance, outside the city but within three miles of the city limits, the bill of particulars set forth that the accused was guilty of keeping ardent spirits for sale, of possessing ardent spirits and of transporting ardent spirits. The statute, section 4675(34), when conferring jurisdiction upon a municipality for the enforcement of the prohibition law without the corporate limits, but within three miles of the same, does not employ any of the terms employed in the bill of particulars. The offenses covered by the statute are confined to the manufacture, sale or distribution of ardent spirits.

Held: That the statute did not cover the offenses set forth in the bill of particulars and the conviction of the accused must be reversed.

7. STATUTES — Construction — Opinion of Attorney-General. — The construction of a statute by the attorney-general, while in no sense binding upon the Supreme Court of Appeals, is of the most persuasive character and is entitled to due consideration.

Error to a judgment of the Corporation Court of the city of Danville.

The opinion states the case.

Harris, Harvey & Brown, and Hugh T. Williams, for the plaintiff in error.

A. M. Aiken, for the defendant in error.

CAMPBELL, J., delivered the opinion of the court.

On the 24th day of January, 1927, the police justice of the city of Danville issued a warrant charging that the plaintiff in error (hereinafter called accused), on the 23rd day of January, 1927, within three miles of the corporate limits of the city, did unlawfully manufacture sell, offer, keep, store and expose for sale, give away, transport, possess and drink ardent spirits.

A trial was had before the police justice, which resulted in the conviction of the accused. Upon an appeal to the corporation court, the accused was tried by a jury, which found him guilty, and fixed his punishment at a fine of $500 and twelve months imprisonment in jail.

When the case was called for trial, the accused demanded a bill of particulars, which was furnished and is as follows:

"(1) Keeping ardent spirits for sale. (2) Possession of ardent spirits. (3) Transporting ardent spirits, all within three miles of the city of Danville."

It is assigned as error that the ordinance of the city of Danville, under the alleged provisions of which the accused was convicted, does not embrace the alleged offenses set forth in the bill of particulars, and, therefore, it was error for the court to enter judgment upon the verdict of the jury.

The only section of the prohibition ordinance with which we are concerned is as follows:

"It shall be unlawful for any person in this city and within three miles of this city to manufacture, transport, sell, keep or store for sale, offer, advertise or expose for sale, give away, dispense or solicit in any way or receive orders for, or aid in procuring ardent spirits except as hereinafter provided."

While it is conceded that the legislature may confer upon a municipality full power to regulate the liquor traffic and control its use in every particular, within the corporate limits of the municipality and within a reasonable radius thereof, it is urged upon us that the legislature has not conferred upon cities and towns the power to prohibit the keeping of ardent spirits for sale, or the possession, or the transporting of ardent spirits outside of but within three miles of the city or town limits.

The provision of law relied upon by the city is section 4675 (cl. 34), the material parts of which are as follows:

"Nothing in this act shall be construed as conflicting with the jurisdiction of any mayor or police justice in the enforcement of city of town ordinances prohibiting the manufacture, sale or distribution of ardent spirits. For the enforcement of such ordinances the mayor or police justice shall have jurisdiction over the territory contiguous to the city or town within three miles of the city or town limits * * *."

It is the policy of the courts to give to the prohibition statute "a fair construction in the light of its enactment, and if the legislative intent can be gathered from its language, it should be given effect." Jordan's Case, 138 Va. 842, 122 S.E. 266.

But there are limits which bind a court in the construction of a penal statute beyond which it should not even strive to go. In Jordan's Case, supra, Judge Burks, delivering the opinion of the court, said: "The territory over which a court is to exercise jurisdiction is a matter to be fixed by statute, and if an act is an offense if committed at one place, but not an offense if committed at another, then it is incumbent on the prosecutor to allege and prove that the act was done at the former place. If it is doubtful, the prosecution must fail. Compare Minturn Larue, 23 Howard (64 U.S.) 435, 16 L.Ed. 574; Cool Commonwealth, 94 Va. 799, 26 S.E. 411."

In Street Broaddus, 96 Va. 823, 32 S.E. 466, Judge Keith, discussing the effect to be given a penal statute, said: "This statute is highly penal in its nature. It is not to be extended by implication, but he who seeks to avail himself of the ruinous penalties which it imposes must bring himself strictly within its terms."

In McKay Commonwealth, 137 Va. 826, 120 S.E. 138, Judge West said: "A penal statute cannot be extended by implication or construction. It cannot be made to embrace cases not within the letter though within the reason and policy of the law. To constitute an offense the act must be both within the letter and the spirit of the statute defining it. Those who contend that a penalty is imposed must show that the words of the act distinctly cover the case. * * * If a penal st...