Flack v. Fry

• Decision Date: 07 March 1889
• Citation: 9 S.E. 240,32 W.Va. 364
• Parties: FLACK v. FRY, Mayor.
• Court: West Virginia Supreme Court

9 S.E. 240

32 W.Va. 364

FLACK v. FRY, Mayor.

Supreme Court of Appeals of West Virginia.

March 7, 1889

Syllabus by the Court.

1. F was arrested in June, 1887, and brought before the mayor of the city of Charleston for a violation of one of the city ordinances in selling beer without license within one mile from the corporation limits; was tried and convicted by the mayor, and fined 150 and costs; and was committed to the street commissioner, to work out his fine. It appears that the warrant for his arrest was issued by the recorder, but it does not appear whether he was arrested within or without the city limits. F. petitioned for and obtained from the circuit court of Kanawha county a writ of habeas corpus. The return made by the mayor to said writ discloses the facts above stated, and also alleges that F. had violated said ordinance. F. demurred to said return, and upon the hearing the circuit court dismissed said writ with costs. Held, that the mayor of the city of Charleston had jurisdiction to hear and determine said cause.

2. Under the facts disclosed the circuit court acted properly in overruling said demurrer and dismissing said writ of habeas corpus.

Error to circuit court, Kanawha county.

J. W. Malcolm, for plaintiff in error.

W. S Laidley, for defendant in error.

ENGLISH J.

On the 23d day of June, 1887, one William Flack presented his petition in the circuit court of Kanawha county, praying a writ of habeas corpus be directed to one Foley, one of the policemen of the city of Charleston, commanding him to have the body of petitioner before said court at a time and place to be stated therein, together with the day and cause of his caption and detention, in order that justice might be done in the premises, and petitioner restored to liberty setting forth in his petition that he was on the ___ day of June, 1887, arrested by a warrant issued by Joseph L. Fry mayor of the city of Charleston, by the police of said city which warrant charged petitioner with selling whisky without having first obtained a license therefor from the city council of said city of Charleston; that petitioner lives outside of the corporate limits of said city, and is deprived of the privilege of free schools, the protection of the police, and in fact of any and all privileges and protection conferred by the city of Charleston to the citizens thereof; and that, notwithstanding these facts, he is detained and held in custody by said authorities under and by virtue of an alleged judgment rendered as aforesaid by the said mayor of the city of Charleston for an alleged disobedience of petitioner to an ordinance of said city of Charleston, which provides that the jurisdiction of said city shall extend one mile beyond the corporate limits of the same. Petitioner further represented that he was a citizen of Charleston, district of Kanawha county, and outside of said corporate limits of said city of Charleston, and as such was not subject to be ordered and controlled by the process of said mayor's court in respect of the matters alleged against him; and further that there was no law which authorized the mayor to issue a warrant of arrest against petitioner, cause him to be arrested, brought into the jurisdiction of the city to try and convict said petitioner as said mayor did, and that any ordinance of said city based upon any statute which seems to give authority to said city to go outside of the corporate limits of said city, and interfere with citizens outside of said corporation as aforesaid, is unconstitutional and void. Joseph L. Fry, mayor of the city of Charleston, answered said petition, stating that he was the mayor of said city, and in obedience to said writ he produced the body of William Flack, and that as such mayor he was invested with all the rights, powers, and duties conferred upon him by the several acts of the legislature of West Virginia, pertaining to the city of Charleston, and to municipal corporations in general; that the city of Charleston has police jurisdiction for one mile beyond the corporate limits of the city, and to carry out this police jurisdiction the common council has power to adopt all needed ordinances and by-laws not contrary to the laws of the state; and that in pursuance of said authority the common council of said city had theretofore adopted an ordinance entitled "An ordinance relating to the city license," setting the same forth in extenso in his answer. Section 1 of said ordinance provides "that no person, without first having obtained a city license therefor, shall sell, offer, or expose for sale, spirituous liquors, beer, etc., within the city limits, or within one mile thereof, either on land or on the Kanawha or Elk rivers," etc. Section 11 of said ordinance provides that any person violating the first section shall, in addition to the other penalties prescribed for sales or gifts of spirituous liquors, etc., in violation of the prohibitions mentioned in the bond required in section 6, be fined not less than $20 nor more than $100, with costs. Said Joseph L. Fry further stated by way of answer that the said William Flack on May 29, 1887, violated said ordinance, and did sell beer within one mile of the city limits, and complaint was duly made to respondent as mayor of said city on the 1st day of June, 1887, that said Flack was violating said first section of said ordinance, and on that day a warrant was issued for said Flack, based...