Hulvey v. Roberts

• Decision Date: 22 November 1906
• Citation: 55 S.E. 585,106 Va. 189
• Parties: HULVEY et al. v. ROBERTS et al.
• Court: Virginia Supreme Court

55 S.E. 585

106 Va. 189

HULVEY et al.

v.ROBERTS et al.

Supreme Court of Appeals of Virginia.

Nov. 22, 1906.

Courts—Appellate Courts —Jurisdiction — Grounds —Constitutional Questions.

Const, art. 6, § 88 [Va.'Code 1904, p. ccxxx], provides that, subject to such reasonable rules as may be prescribed by law as to the course of appeal, the Supreme Court of Appeals shall have appellate jurisdiction by virtue of the Constitution in all cases involving the constitutionality of a law. Section 5SCa, Code 1904, declares that, In judging of an election for the licensing of the sale of Intoxicating liquors, the circuit court shall proceed on the merits and decide on the Constitution and laws according to the right of the case, and the judgment of such court shall be final. Held, that where, in a liquor election contest, it was objected that certain voters had been permitted to vote illegally without having paid their poll taxes, etc., as required by Code 1904, i 62, but the constitutionality of such section, as distinguished from a mere construction thereof, was not raised in the trial of the contest proceedings, the Supreme Court of Appeals had no jurisdiction to review the decision of the circuit court on a writ of error.

Error to Circuit Court, Augusta County.

Proceedings by one Hulvey and others against one Roberts and others to determine the validity of an election forbidding the licensing of the sale of intoxicating liquors. From a judgment declaring the election valid, Hulvey and others bring error. Writ dismissed.

Patrick & Gordon and Hulst Glenn, for plaintiffs in error.

J. M. Perry, Quarles & Pilson, and H. H. Blease, for defendants in error.

WHITTLE, J. The writ of error in this case was allowed by one of the judges of this court to the judgment of the circuit court of Augusta county, declaring valid an election under chapter 25, Va. Code 1004, against licensing the sale of intoxicating liquors in Basic City. We are met at the threshold of the inquiry by the question of jurisdiction.

Section 586a declares that, "in judging of such election and return, the court shall proceed on the merits thereof, and decide the same on the Constitution and laws, and according to the right of the case, and enter such order as will carry its decision into full and complete effect. And the judgment of said court shall be final."

In Lester v. Price, 83 Va. 648, at page 652, 3 S. E. 529, at page 530, it is said: "From a very early period—certainly as early as 1666— the subject [licensing the sale of liquor] was committed to the sole judgment and discretion of the county courts, and their discretion to grant or refuse licenses could not be interfered with by any higher courts. In the earlier statutes we find the language conferring such absolute discretion quite specific, as for instance: 'And, if such petition appear reasonable, such court is hereby authorized, and may, if they think fit, grant the petitioner a license, ' etc., or 'by their discretion, shall judge whether it is convenient to suffer such a house to be set up, ' etc." See Va. Code 1849, pp. 443, 444, c. 96, § 3; and Acts 1669-70, pp. 22, 239.

This policy seems to have been pursued and to have remained unchallenged until the case of Ex parte Yeager, 11 Grat. 655 (decided in 1854) arose. In that case, Judge Daniel, whc delivered the opinion of the court, reviews the history of legislation in regard to granting licenses, in light of the earlier decisions, and holds that the act (Code 1849, p. 443, c. 96, § 3) "vests in the county courts a discretion to grant or refuse a license to keep a tavern; in the exercise of which discretion they cannot be controlled by the circuit courts, either by mandamus, writ of error, or certiorari."

So, in French v. Noel, 22 Grat. 454, in prohibition, the same doctrine was reaffirmed; and it was said that the action of the circuit court allowing an appeal to the order of the county court in such case was coram non judice.

In Leigton v. Maury, 76 Va. S65, the court construed the act of March 3, 18S0 (Acts 1879-80, p. 147, c. 155), and held that it was the purpose of that enactment to depart from the policy of former statutes as construed in Yeager's Case, supra. In that case the court observes: "That statute says the county court 'shall grant the license' if the applicant brings himself within the requirements, and the circuit court 'may grant the license' means the circuit court shall have the jurisdiction to do so, and must do so, if the applicant brings himself within the requirements." The act was declared to be mandatory, and the right of appeal to the circuit court absolute.

In Thon v. Commonwealth, 31 Grat. (Va.) 887, will be found a comprehensive note on the subject of intoxicating liquors in general, and, at page 895 of 31 Grat., it is said: "In Ailstock v. Page, 77 Va. 386, the court expressly overrules Leigton v. Maury, 76 Va. 875, so far as that case decides that the contestant is such a party in interest that he is entitled to an appeal or writ of error.

"In Ex parte Lester, 77 Va. 663, it was held that, under the act of 1882, the applicant may appeal to the circuit court or he may, upon bill of exceptions taken at the trial, apply to the circuit court for a writ of error and supersedeas, and, if the circuit court also erroneously refused the license, its decision is reviewable by the Supreme Court upon appeal, or writ of error and supersedeas, as in other cases. The applicant is a party directly in interest in the decision refusing the license, and comes within the letter of Code 1873, c. 178, § 2, but this is not true of the contestant who cannot appeal. See, also, Haddox v. County of Clarke, 79 Va. 677." It is also said that, "under the Acts 1883-84, p. 605, c. 450, application for license to retail liquor must be made to the county court, and either applicant or defendant may appeal of right from the decision to the circuit court where the application is heard de novo, and no appeal lies to the decision of the latter court."

The case of Lester v. Price, supra, construed the act of 1883-84. It is there held that no appeal lies to the decision of the circuit court, and the writ of error and supersedeas was dismissed as having been improvidently awarded.

The court, as at present constituted, has, on several occasions, refused to grant writs of error in this class of cases, so that the doctrine of Lester v. Price represents the present state of the law on the subject.

In the recent case of the City of Danvillev. Hatcher, 101 Va. 523, 44 S. E. 723, this court had occasion to consider the question of state control of the traffic in intoxicating liquors. It was there held that the sale of liquor is not one of the privileges or immunities of citizenship guarantied by the Constitution of the United States, or the fourteenth amendment thereof; that the regulation of the subject is completely within the police power of the state; that the sale of liquor may be entirely prohibited, or regulated in any manner the Legislature may deem wise, without supervision or control by the courts.

The previous legislative and judicial policy of the state with respect to governmental control of intoxicating liquor is emphasized by section 62 of the present Constitution, which declares:

"The General Assembly shall have full power to enact local option or dispensary laws, or any other laws controlling, regulating, or prohibiting the manufacture or sale of intoxicating liquors."

It is conceded in the petition for the writ of error in this case that under section 581 of the Code of 1904, by virtue of which the proceeding under review was instituted, there can be no appeal from the judgment of the trial court, unless it is provided for in the Constitution.

So much of that instrument as need now be considered is as follows: "The Supreme Court of Appeals * * * shall have original jurisdiction in cases of habeas corpus, mandamus, and prohibition; but in all other cases, in which it shall have jurisdiction, it shall have appellate jurisdiction only. Subject to such reasonable rules as may be prescribed by law, as to the course of appeal, the limitation as to time, the security required, if any, the granting or refusing of appeals, and the procedure therein, it shall, by virtue of this Constitution, have appellate jurisdiction in all cases involving the constitutionality of a law as being repugnant to the Constitution of this state or of the United States." Const. Virginia, art. 6, § 88 [Va. Code 1904, p. cexxx].

In order that jurisdiction may be conferred upon this court by force of the constitutional provision, it must appear that the constitutionality of a law was called in question and decided in the trial court; and error committed in the construction and interpretation of a statute will not of itself confer jurisdiction upon this court; but the constitutionality of the statute, as distinguished from its interpretation, is the source of appellate jurisdiction.

Now in this case there is not a word said in the petition to the circuit court with...