Fielder v. Town Of Vinton

• Decision Date: 20 February 1939
• Citation: 1 S.E.2d 303
• Parties: FIELDER. v. TOWN OF VINTON.
• Court: Virginia Supreme Court

1 S.E.2d 303

FIELDER.

v.TOWN OF VINTON.

Supreme Court of Appeals of Virginia.

Feb. 20, 1939.

Error to Circuit Court, Roanoke County; T. L. Keister, Judge.

E. O. Fielder was convicted of operating an automobile on the streets of the Town of Vinton while intoxicated, in violation of a town ordinance, and he brings error.

Affirmed.

Argued before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

T. W. Messick, of Roanoke, for plaintiff in error.

No appearance for defendant in error.

HUDGINS, Justice.

E. O. Fielder was convicted by the mayor of the town of Vinton upon a warrant charging that he "did unlawfully violate Section 78--Traffic Code, at 9:30 P. M, operating automobile on streets of Vinton while intoxicated or under the influence of narcotic drugs." On appeal to the Circuit Court of Roanoke county, he was found guilty by a jury and assessed with a fine of $100, on which the trial court entered judgment.

The accused contends that the warrant is in the name of the Commonwealth, and that, under section 4987f, (2), of the Code, the trial justice of the county of Roanoke had exclusive original jurisdiction to try all persons charged with the commission of a misdemeanor within the county. The refusal of the trial court to sustain a motion based upon this contention is the only error assigned.

It is true that the second paragraph of Code, section 4987f, in general terms, confers upon the trial justice "exclusive original jurisdiction of all offenses against the ordinances, laws and by-laws of the respective counties, cities and towns for which he is appointed, " with certain exceptions not pertinent to the question presented. Paragraph twelve of this section provides: "Notwithstanding other provisions of sections forty-nine hundred and eighty-seven-a to forty-nine hundred and eighty-seven-p, both inclusive, to the contrary, any city and any incorporated town within the jurisdiction of any trial justice appointed pursuant to the said sections may, by a resolution adopted by a majority of the members of the council thereof, continue in the mayor or other trial officer thereof all jurisdiction now rested in such mayor or other trial officer pertaining to the issuance of warrants and the summoning of witnesses and the trial of cases involving violations of city and town ordinances, in which event the said mayor or other trial officer shall collect all fees and fines provided for and pay the same into the treasury of the respective city or town as now provided by law or by ordinances of his said city or town."

The record is silent as to whether the council of the town of Vinton had, by appropriate resolution, conferred upon its mayor jurisdiction to try persons charged with the violation of its by-laws and ordinances. The question whether this court or the trial court may, or should, take judicial notice of such an ordinance, is not raised. Indeed, the accused seems to concede that the mayor of the town had jurisdiction to try persons charged with the violation of its ordinances. This appears from the following statement in the petition: "Since the warrant was issued in the name of the Commonwealth of Virginia, the circuit court was without jurisdiction to change or modify said warrant so as to make it a proceeding or prosecution in behalf of the town of Vinton. Exclusive original jurisdiction of the trial of offenses against the Commonwealth was vested in the trial justice of Roanoke county, and petitioner was entitled to have his case tried before the trial justice."

The precise question presented is whether the warrant charged a violation of a town ordinance, or the violation of a State statute. The warrant upon which the accused was arrested, tried and convicted is as follows:

"State of Virginia,

"Town of Vinton, to-wit:

"To the Sergeant or Any Officer of Said Town:

"Whereas, R. W. Mitchell has this day made complaint and information on oath, before me. the undersigned Mayor of said Town, that E. O. Fielder, age (56) on or about the 16th day of April, 1936, at said town did unlawfully violate Section 78-- Traffic Code, at 9:30 P. M., operating automobile on streets of Vinton while intoxicated or under the influence of narcotic drugs.

"These are, therefore, in the name of the. Commonwealth of Virginia, to command you.forthwith to apprehend and bring before me, the said mayor of said town, the body of the said E. O. Fielder to answer said complaint and be further dealt with according to law.

"And, moreover, upon the arrest of the said E. O. Fielder by virtue of this warrant, I command you in the name of the Commonwealth of Virginia to summons R. W. Mitchell, Frank Buck, Roy Fowler, R. H. Wagner to appear at the mayor's court as witnesses to testify in behalf of the Commonwealth of Virginia, against the said E. O. Fielder, and have then and there this warrant, with your return thereon.

"Given under my hand and seal this 17th day of April, 1938.

"Permit 6125

"License No. 81327

"J. H. Moseley, (Seal)

"Mayor."

On the back of said warrant, appears the following endorsement and judgment of the Mayor:

"The within-named E. O. Fielder was brought before me this 19th day of April, 1938, and on the evidence of witnesses, he is found guilty of driving drunk as charged in the within warrant and I do adjudge that he be confined in the jail of the town of Vinton for thirty days, suspended and pay a fine of $100 and $12.50 costs. Permit Revoked.

"(Signed) J. H. Moseley,

"Mayor."

A similar warrant¹, in Collins v. City of Radford, 134 Va. 518, 113 S.E. 735, 737, was held valid and to have sufficiently charged the violation of a town ordinance. Judge Kelly, speaking for the court, said: "We do not see anything on the face of this warrant which can be regarded as seriously irregular or defective. It did not specifically charge a violation of a city ordinance, and it concluded in the name of the commonwealth, and not in the name of the city. But it did show that it emanated in the city of Radford, for an offense against the prohibition law committed within the city limits, and that it was issued and was to be tried by the police justice of that city, whose jurisdiction as to such offenses was expressly confined by law to infractions of city ordinances. See act creating his office, approved March 16, 1920 (Acts 1920, p. 275), and section 24,...