Judy v. Lashley

• Decision Date: 01 March 1902
• Citation: 41 S.E. 197,50 W.Va. 628
• Parties: JUDY v. LASHLEY, Mayor.
• Court: West Virginia Supreme Court

41 S.E. 197

50 W.Va. 628

JUDY v. LASHLEY, Mayor.

Supreme Court of Appeals of West Virginia.

March 1, 1902

Submitted September 11, 1901.

Syllabus by the Court.

1. The police power of a municipal corporation depends upon the will of the legislature, and a city, town, or village can only exercise such police power as is fairly included in the grant of powers by its charter.

2. Section 28 of chapter 47 of the Code, by vesting in the councils of municipal corporations power and duty "to protect the persons and property of the citizens of such city, town or village, and to preserve peace and good order therein," does not confer power to punish acts made criminal by the state law, and fully covered thereby, except such as would be attended with circumstances of aggravation not included in the state law. Such power must be specifically and expressly given by the legislature, before it can be exercised by such corporation.

3. The carrying of deadly weapons, being an offense fully provided for and punished by law, and being an act not in itself amounting to a breach of the peace, cannot be made an offense and punished by a municipal ordinance, unless expressly authorized by the municipal charter.

4. Prohibition lies to restrain the mayor of a town incorporated under the provisions of chapter 47 of the Code from imposing a fine upon a person for carrying deadly weapons, and from collecting the same, under an ordinance making such act an offense, and punishing it by fine and imprisonment, as such ordinance is void, and the mayor is without jurisdiction in the premises.

Application by Fred Judy for a writ of prohibition against C. G. Lashley as mayor of town of Davis. Writ awarded.

W. H Kelly, for petitioner. Cunningham & Stallings, for respondent.

POFFENBARGER J.

Fred Judy presented his petition June 9, 1900, praying a writ of prohibition restraining C. G. Lashley, mayor of the town of Davis, from proceeding against the petitioner on a charge of carrying a deadly weapon, and from attempting to collect a fine of $25 imposed upon him for said offense. There is some controversy between counsel as to whether said proceeding by the mayor was under the ordinances of the town, in his capacity as mayor, or under the state statute; the mayor being, by law, ex officio a justice of the peace. Code, c. 47, § 39. The transcript of the mayor's proceedings is not with the papers, but it seems to be conceded that there is nothing in it to indicate that the proceeding was under the statute; the record showing only that as mayor he tried petitioner, and found him guilty, and assessed the fine against him.

Sections 26 and 52 of the ordinance of the town concerning offenses and their punishment reads as follows: "It shall be unlawful for any person to carry about his person, any revolver or other pistol, dirk or bowie knife, razor, slung shot, billy, metallic or other false knuckles, or any other dangerous or deadly weapon of like kind or character, nor shall any person sell or furnish any such weapon as is hereinbefore mentioned, to a person whom he knows, or has reason, from his appearance, or otherwise, to believe to be under the age of 21 years; but nothing herein contained shall be so construed as to prevent any person from keeping or carrying about his dwelling house or premises such revolver or other pistol, or from carrying the same from the place of purchase to his dwelling house, or from his dwelling house to any place where repairing is done, to have it repaired, and back again. If any person commit any of the offences prohibited or enumerated in any of the sections of the foregoing ordinance, he shall forfeit and pay a fine of not less than one, nor more than thirty dollars, and may, in the discretion of the mayor, be imprisoned not exceeding 30 days, except for a violation or an offence as provided in section 26, when the party shall be fined not less than $25.00, nor more than $200.00, and may at the discretion of the mayor, be confined in prison not less than one, nor more than twelve months. And if any male person so convicted and fined, under any of the sections of this chapter, shall fail or refuse to pay said fine and costs, the mayor may sentence said offender to work same out upon the streets of said town, or other work in said corporation , at the rate of $1.00 per day and board until such fine and costs are paid, under the direction of such officer or person as the mayor may select, and may provide for his safe keeping while performing such work, and if deemed necessary, shall provide a ball and chain to be attached to his person for such purpose as is provided in chapter 36, § 11, of the Code of 1891."

It is urged for the petitioner that chapter 47 of the Code does not authorize a municipal corporation to punish acts already made criminal under the state law, and that the ordinance making the carrying of deadly weapons an offense punishable by the municipal authorities is void. It is further contended that the mayor, in taking cognizance of the offense, is acting without jurisdiction. In passing upon these questions, it becomes necessary to look to the source and extent of municipal criminal jurisdiction and power. On this subject it is said in Tied. Lim. Pol. Power, § 212, that: "A large part of the police power of the state is exercised by the local governments of municipal corporations, and the extent of their police power depends upon the limitations of their charters. They are creatures of the state, and the superior control of the state is almost without limit. The police power of a municipal corporation must depend upon the will of the legislature, and in order that a city, town, or county may exercise a particular police power, it must be fairly included in the grant of powers by the charter." The soundness of this proposition cannot be questioned. Looking now to the powers delegated by the legislature to municipal corporations of this state, it is found in section 28 of chapter 47 of the Code that it is the duty of the councils of such corporations, among other things, "to protect the persons and property of the citizens of such city, town, or village, and to preserve peace and good order therein." Section 29 of said chapter further provides that: "To carry into effect these enumerated powers, and all others conferred upon such city, town or village, or its council, by this chapter or by any future act of the legislature of this state, the council shall have power to make and pass all needful orders, by-laws, ordinances, resolutions, rules and regulations, not contrary to the constitution and laws of this state; and to prescribe, impose and enact reasonable fines, penalties and imprisonments in the county jail or the place of imprisonment in said corporation, if there be one, for a term not exceeding thirty days, for a violation thereof. Such fines, penalties and imprisonments shall be recovered, and enforced under the judgment of the mayor of such city, town or village, or the person lawfully exercising his functions." The offense in question here is clearly an offense against the peace. It is not only so regarded, but is so classed by chapter 148 of the Code. Unless the ground taken by the petitioner that the power thus delegated by the legislature does not include the right to punish acts already made criminal under the state law is tenable, it is manifest that the town may by ordinance declare the carrying of deadly weapons an offense, and punish it, for it is expressly given power to preserve peace and good order within its limits. On this question there is much conflict in the decisions of the various states. In New York and Alabama and Missouri, and some other states, it has been held that under a general authority delegated by the legislature, such as to preserve the peace and regulate the police, a municipal corporation may impose penalties for the commission of acts which by the state law are declared to be crimes. Rogers v. Jones, 1 Wend. 261; Mayor, etc., v. Allaire, 14 Ala. 400; Same v. Rouse, 8 Ala. 515; Intendant, etc., v. Mullins, 13 Ala. 341; City of Amboy v. Sleeper, 31 Ill. 499; State v. Crummey, 17 Minn. 72 (Gil. 50); City of Brownsville v. Cook, 4 Neb. 101; Levy v. State, 6 Ind. 281; City of St. Louis v. Bentz, 11 Mo. 61; State v. Gordon, 60 Mo. 383. In some of the cases it is further held that a conviction under an ordinance may be pleaded in bar of a prosecution in the state court for the same act. State v. Cowan, 29 Mo. 330. This is on the ground that the constitution forbids that a person shall be twice punished for the same offense. There is another class of cases which hold that the party may be punished under both the state and the municipal law. Fox v. Ohio, 5 How. 410, 12 L.Ed. 213; Moore v. People, 14 How. 13, 14 L.Ed. 306; Slaughter v. People, 2 Doug. (Mich.) 334, note. In some other states it is held that a state cannot punish by ordinance what is already an offense by the statute. State v. Keith, 94 N.C. 933; In re Sic, 73 Cal. 142, 14 P. 405; Menken v. City of Atlanta, 78 Ga. 668, 2 S.E. 559. Cooley, Const. Lim. 239, says: "Nor will conferring a power upon a corporation to pass by-laws and impose penalties for the regulation of any specified subject necessarily supersede the state law on the same subject, but the State law and the by-law may both stand together, if not inconsistent. Indeed, an act may be a penal offense under the laws of the state, and further penalties, under proper legislative authority, be imposed for its commission by municipal by-laws, and the enforcement of the one would not preclude the enforcement of the other." It will be noticed that Judge Cooley says these penalties may be imposed under proper legislative authority. From this it is clear that he...