Jelly v. Dils and Smith.

• Decision Date: 05 December 1885
• Citation: 27 W.Va. 267
• Parties: Jelly v. Dils and Smith.
• Court: West Virginia Supreme Court

27 W.Va. 267

Jelly

v. Dils and Smith.

Supreme Court of Appeals of West Virginia.

Submitted June 19, 1885.

Decided December 5, 1885.

1. If a recorder of a city should issue a summons against a person to answer for a violation of an ordinance of the city, which was a nullity because contrary to the constitution, would such person be entitled to writ of prohibition upon such summons being served, or would his application for such writ at that time be premature; and Qucvre: Would he have a right to this extraordinary writ in such a case at any time, or would he have to rely upon his ordinary remedy by appeal? (p. 271.)

2. There must be a rule to show cause, why the prohibition should not issue, before the writ is issued, (p. 283.)

3. The rule to show cause operates as a prohibition until the further action of the court, (p. 283.)

4. Though the charge in a city court be one, in respect to which the party is entitled by sec, 10 of our bill of rights to a trial by jury, yet, if by an appeal clogged with no unreasonable restrictions he can have such a trial as a matter of right in the appellate court, his constitutional right of a trial, by jury is not invaded by a summary proceeding in the first instance in the city-court, (p, 279.)

5. The ordinance of the city of Parkersburg requiring a city-license to sell spirituous liquors within the city is constitutional, as also is the ordinance imposing a fine of from $1,00 to $20.00 on any person selling spirituous liquors in said city without such citylicense, to be imposed by the recorder of said city, and subjecting the offender to imprisonment by order of the recorder for not exceeding thirty days, if such fine and the costs of the proceedings are not paid, as the Legislature by act of February 7, 1870, has granted an appeal in such case to the circuit court of Wood upon terms and conditions deemed not unreasonable, and the defendant can then have his case tried by a jury of twelve men, if he wishes, (p. 281.)

B. Powell for plaintiff in error.

C. D. Merrick for defendant in error. Statement by Green, Judge:

By the act incorporating the town of Parkersburg passed January 22, 1820, it is provided, that "in all cases arising under the by-laws and ordinances of said town the recorder shall have the like power and authority to have and determine the same and to enforce judgment, as a justice of the peace of the county of Wood could or might have, and from the decisions of the said recorder appeals may be taken to the court of said county in like manner as from the judgment of ajustice of the peace." Acts of Virginia of1820, ch. 108 sec. 5. After our constitution was amended, and the county courts were deprived of thier jurisdiction to try civil or criminal cases, the Legisleture by an act passed in 1881, (see Acts of that year p. 11 and Warth's Code p. 668 ch. 112 sec. 2,) declared, that the circuit courts shall have appellate jurisdiction in all cases, civil and criminal, when an appeal, writ of error or supersedeas may be allowed to the judgment or proceedings of any inferior tribunal. By this act the right to try an appeal from a judgment of the recorder of Parkersburg was transferred from the county court to the circuit court of Wood county.

On February 7, 1870, the charter of the city of Parkersburg, to which name the town of Parkersburg had been changed, was amended; and by sec 25, as amended, the council of said city was authorized to grant city-licenses for any act, occupation or business in said city for which a State-license was required; and by sec. 44 of said act power was given to the mayor and city-council to pass all necessary laws and ordinances to carry into effect the provisions of this act and to enforce the faithful performance of the same. Ch. 107 of the Acts of 1877 requires among other things a State-license lor the selling of spirituous liquors, &c. The city of Parkersburg under the authority of said acts of February 7, 1870, passed an ordinance, which provided that "It shall be the duty ot all persons, who are required to take out a State-license for the purpose of carrying on any business, or pursuing any trade or calling within the limits of the city of Parkersburg, to take out a license from said city, and to pay said tax or said license," as was therein afterwards provided. And the tax and license to sell spirituous liquors, &c, at-retail wras in said^ordinance fixed at $100.00 per annum. By another ordinance it was declared that it should be an offence against the city of Parkersburg "to do any act or follow any employment or business in said city, upon which the council of said city had imposed a tax, without having first paid the tax imposed by said council for the privilege." For this offence against the city this ordinance imposed a fine of from $1.00 to $20.00 and provided that the recorder should hear and determine all violations of the ordinances and assess the amount of such fine, which was an authority conferred upon him by the original charter ot the city or town. By virtue ot this authority on February 10, 1880, Wm. Dils, the recorder of the said city, issued his warrant, directing the sheriff to summon M. A. Jelly to appear before him at his office at 2 o'clock p. m. of that day to show cause why she should not be fined for unlawfully retailing, or giving away at her house in said city, spirituous liquors, wine, &c, in violation of the ordinance of the city in such case made and provided. This summons was duly served upon her, but instead of appearing, as required, before the recorder she on the next day presented her petition to the judge of the circuit court of Wood county, setting out these facts and provisions of the ordinance and further showing that by the same ordinance it was provided that, if any one was found guilty of violating this ordinance, and was fined by the recorder therefor, he might be imprisoned till the fine and costs were paid, provided the imprisonment did not exceed thirty days, and that by the Act of February 27, 1877, the selling of spirituous liquors, wines, &c, without a State-license was made an indictable offence, being punished by a fine of from $10.00 to $100.00. She claims in this petition that this ordinance imposing this fine was void, being in violation ot the constitution of the State; and she alleges that the recorder insisted on her answering this unlawful proceeding and charge, and she prayed a writ of prohibition might issue against him and C. B. Smith, the mayor of said city and ex-ojficio recorder, to prohibit them from proceeding to try her under said pretended ordinance, until the matter was fully inquired into by the circuit court of Wood county. This petition was sworn to and the judge forthwith-without any rule* or notice to the recorder or mayor ordered, "that a writ of prohibition do issue forthwith from the clerk's office of the circuit court of Wood county to said Win. Oils, recorder, and C. B. Smith, mayor, as aforesaid, prohibiting them from any further attempt to try said M. A. Jelly for the alleged offence of unlawfully retailing spirituous liquors, (fee, until the further Order of the circuit court of Wood county, said writ to be returnable on the first day of the next term." The writ was accordingly issued and executed the same day. A declaration was tendered at the next term of the court in the case and ordered to be filed. And thereupon the defendants demurred to it generally. I deem it unnecessary to state the contents further than to say, that it set forth the facts hereinbefore stated and prayed for a prohibition and for her damages, $100.00, for which she claimed judgment. On April 8, 1880, the court rendered the following judgment upon said demurrer:

" This day came the parties, by their attorneys and thereupon the general demurrer of the defendants to the plaintiff's declaration being argued by counsel and maturely consid- ered by the court, the court is of opinion that the said demurrer is well taken, and that the writ of prohibition prayed for in the cause should not issue. It is, 'therefore, considered by the court that the said demurrer be sustained, and that the writ of prohibition prayed for as aforesaid^do not issue, and that the defendants recover of the plaintiff their costs by them about their defence herein in this behalf expended; and thereupon the plaintiff, by her attorney, moved the court to suspend judgment tor sixty days, and judgment is accordingly so suspended, upon giving bond in the penalty of $50.00."

From this judgment the defendants obtained a writ of error and supersedeas from a judge of this Court.

Opinion by Green, Judge:

The defendants by their counsel urge the following grounds for sustaining the judgment of the cojurt on the demurrer to the declaration, which, if they are well taken, apply equally to the granting of the prayer of the plaintiff originally for a prohibition asked. They are first, that it does not appear, that the want ot jurisdiction in the recorder was raised before him; secondly, even if the recorder had no jurisdiction, this was not a proper remedy, as an appeal could have been taken from the decision of the recorder when rendered; third, the city of Parkersburg wTas a necessary defendant in this case but wras not made a defendant. On this subject High in his work on Extraordinary Remedies, says:" At common law, to authorize a prohibition to an inferior court for want of jurisdiction, it was necessary that a plea to the jurisdiction should be tendered in that court, and that the court should have refused to entertain the plea. The common law rule is believed to be generally applicable in this country, and the wrrit will not go to a subordinate tribunal in a cause arising out of its jurisdiction, until the writ of jurisdiction has first been pleaded in the court below7, and the plea refused; and when there has been no effort made to obtain relief in the court, which it is sought to prohibit, the superior court will...