Hannabass v. Maryland Cas. Co.

• Decision Date: 13 January 1938
• Parties: J. W. HANNABASS v. MARYLAND CASUALTY COMPANY, ETC.
• Court: Virginia Supreme Court

Page 559

169 Va. 559

J. W. HANNABASS v. MARYLAND CASUALTY COMPANY, ETC.

Supreme Court of Virginia, Richmond.

January 13, 1938.

Present, All the Justices.

1. ORDINANCES — Effect of Subsequent Conflicting Statute. — In so far as there is a conflict between a city ordinance and a subsequent act of the legislature, the State law prevails.

2. STATUTES — Partial Invalidity — Effect. — An act may be valid in one part and invalid in another, and if the invalid is severable from the remainder, the invalid part may be ignored, if after such elimination the remaining portions are sufficient to accomplish their purpose in accordance with the legislative intent, and only if the void portion is the inducement to the passage of the act, or is so interwoven in its texture as to prevent the statute from becoming operative in accordance with the will of the legislature, is the whole statute invalid.

3. STATUTES — Partial Invalidity — Test. — The test of whether a statute invalid in part may be sustained as to the remainder is whether the legislative body has manifested an intention to deal with a part of the subject-matter covered, irrespective of the rest of the subject-matter. If such intention is manifest the subject-matter is separable, otherwise not.

4. AUTOMOBILES — Operators and Chauffeurs — Minimum Age Limit — Ordinances Requiring Permit and Fixing Age Limit Entirely Superseded by Subsequent Statute — Case at Bar. — In the instant case, an action on an automobile liability and indemnity insurance contract, defendant company denied liability because the automobile insured was, at the time of the accident, being driven by the assured's infant son, who was over the age of 14 years but under the age of 16. The policy provided that it did not cover the automobile while it was being operated by any person under the age limit fixed by law, and defendant contended that such operation violated section 65 of the Traffic Code of the city of Richmond, where the accident occurred, which required a permit from the chief of police for the operation of an automobile and specified that no such permit should be issued to any person under the age of 16. Plaintiff contended that said section 65 was invalid because the substantial part or parts thereof had been superseded by the Operators' and Chauffeurs' License Act of 1932 (section 2154(170) et seq. of the Code of 1936). The trial court held that the part of section 65 which required a permit was invalid, but that the remaining part could be severed from the unconstitutional portion, and when so severed would prohibit the operation of a motor vehicle upon the streets of the city of Richmond by persons under the age of 16. The declared purpose of the city ordinance was to make uniform the laws of the State relating to the operation of motor vehicles.

Held: That when the requirement of a permit by section 65 of the ordinance was abrogated by the subsequent enactment of the legislature, its effect was to supersede the entire section, for no other independent subject-matter was contained therein.

5. AUTOMOBILES — Operators and Chauffeurs — Minimum Age Limit — Ordinance Requiring Permit and Fixing Age Limit in Conflict with Subsequent Statute — Nullification Not Avoided by Saving Provision — Case at Bar. — In the instant case, an action on an automobile liability and indemnity insurance contract, defendant company denied liability because the automobile insured was, at the time of the accident, being driven by the assured's infant son, who was over the age of 14 years but under the age of 16. The policy provided that it did not cover the automobile while it was being operated by any person under the age limit fixed by law, and defendant contended that such operation violated section 65 of the Traffic Code of the city of Richmond, where the accident occurred, which required a permit from the chief of police for the operation of an automobile and specified that no such permit should be issued to any person under the age of 16. Plaintiff contended that said section 65 was invalid because the substantial part or parts thereof had been superseded by the Operators' and Chauffeurs' License Act of 1932 (section 2154(170) et seq. of the Code of 1936). The trial court held that the part of section 65 which required a permit was invalid, but that the remaining part could be severed from the unconstitutional portion, and when so severed the ordinance would prohibit the operation of a motor vehicle upon the streets of the city of Richmond by persons under the age of 16. The ordinance contained a provision declaring that if any part, sentence, clause or phrase thereof should be declared unconstitutional, such decision should not affect the validity of the remaining portions.

Held: That the fact that the ordinance carried a saving provision did not save it in this case from nullification by the State law.

6. STATUTES — Saving Provision — Effect. — A saving provision in a statute or ordinance, declaring that unconstitutionality of parts shall not affect the remainder, accomplishes no more than to reverse the presumption that the legislature intends an act to be effective as an entirety, that it is inseparable and that if any provision is unconstitutional the remaining provisions fall with it. Where there is such a saving clause in the statute, the presumption is that the statute is separable and the valid portion may stand even though a portion is invalid.

7. STATUTES — Partial Invalidity — Test of Separability. — Whether a statute contains a saving provision or not, the test of its separability is the intent of the lawmakers.

8. CRIMINAL LAW — Statutes — Necessity for Penalty. — A criminal statute is unenforceable and is invalid unless it prescribes a penalty.

9. AUTOMOBILES — Operators and Chauffeurs — Minimum Age Limit — Ordinance Requiring Permit and Fixing Age Limit in Conflict with Subsequent Statute — Practical Construction of Ordinance by City Officials — Case at Bar. — In the instant case, an action on an automobile liability and indemnity insurance contract, defendant company denied liability because the automobile insured was, at the time of the accident, being driven by the assured's infant son, who was over the age of 14 years but under the age of 16. The policy provided that it did not cover the automobile while it was being operated by any person under the age limit fixed by law, and defendant contended that such operation violated section 65 of the Traffic Code of the city of Richmond, where the accident occurred, which required a permit from the chief of police for the operation of an automobile and specified that no such permit should be issued to any person under the age of 16. Plaintiff contended that said section 65 was invalid because the substantial part or parts thereof had been superseded by the Operators' and Chauffeurs' License Act of 1932 (section 2154(170) et seq. of the Code of 1936). The trial court held that the part of section 65 which required a permit was invalid, but that the remaining part could be severed from the unconstitutional portion, and when so severed would prohibit the operation of a motor vehicle upon the streets of the city of Richmond by persons under the age of 16. The legal department of the city of Richmond had given the enforcement officers an opinion that a minor under the age of 16 years who held a license from the Division of Motor Vehicles could lawfully operate a car in Richmond, and the city authorities admitted that the entire section 65 of the ordinance had been abrogated.

Held: That this practical construction given the ordinance by public officials and acted on by the public was of considerable weight in construing it.

10. AUTOMOBILE INSURANCE — Operation in Violation of Law as to Age — Ordinance Requiring Permit and Fixing Age Limit in Conflict with Subsequent Statute — Case at Bar. — In the instant case, an action on an automobile liability and indemnity insurance contract, defendant company denied liability because the automobile insured was, at the time of the accident, being driven by the assured's infant son, who was over the age of 14 years but under the age of 16. The policy provided that it did not cover the automobile while it was being operated by any person under the age limit fixed by law, and defendant contended that such operation violated section 65 of the Traffic Code of the city of Richmond, where the accident occurred, which required a permit from the chief of police for the operation of an automobile and specified that no such permit should be issued to any person under the age of 16. Plaintiff contended that said section 65 was invalid because the substantial part or parts thereof had been superseded by the Operators' and Chauffeurs' License Act of 1932 (section 2154(170) et seq. of the Code of 1936). The trial court held that the part of section 65 which required a permit was invalid, but that the remaining part could be severed from the unconstitutional portion, and when so severed would prohibit the operation of a motor vehicle upon the streets of the city of Richmond by persons under the age of 16.

Held: That section 65 of the ordinance was invalid in its entirety, and that the minor son of the assured was not operating the automobile at the time of the accident "under the age limit fixed by law," as that term was used in the policy.

Error to a judgment of the Law and Equity Court of the city of Richmond, Part Two. Hon. Frank T. Sutton, Jr., judge presiding. Judgment for defendant. Plaintiff assigns error.

The opinion states the case.

George E. Allen, George E. Allen, Jr., M. J. Fulton and R. R. Parrish, for the plaintiff in error.

Sinnott & May and V. P. Randolph, Jr., for the defendant in error.

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

J. W. Hannabass, plaintiff in error, instituted in the lower court an action for damages, by way of notice of motion for judgment, against the ...