Mayo v. James

• Decision Date: 15 January 1855
• Citation: 53 Va. 17
• Court: Virginia Supreme Court
• Parties: MAYO, mayor & c. v. JAMES.

53 Va. 17

MAYO, mayor & c. v. JAMES.

Supreme Court of Appeals of Virginia.

January 15, 1855

1. The mayor of the city of Richmond has authority to try cases in which a party is prosecuted for the violation of a city ordinance. QUÆ RE: Whether in such a case a prohibition will lie to his proceeding to try the case, on the ground that the ordinance is in conflict with an act of the general assembly. And it seems it will not.

2. For the mode of proceeding in a case of prohibition, see the opinion of MONCURE, J.

3. There must be a rule to show cause why the prohibition should not issue, before the writ is issued.

4. This rule to show cause operates as a prohibition, until the further action of the court.

5. A statute requiring a license to keep a cook-shop, and laying a tax upon it, is not in conflict with, and does not avoid, an ordinance of the city of Richmond, passed in pursuance of its charter, prohibiting or restricting the keeping of cook-shops by free negroes within the city.

6. It is not illegal to affix the punishment of stripes to the violation of a city ordinance by a free negro.

This was an appeal, by the mayor of the city of Richmond, from a judgment of the Circuit court of the city of Richmond, in a case of prohibition. The facts are stated in the opinion of Judge MONCURE.

R T. Daniel, for the appellant.

Crump, for the appellees.

MONCURE J.

In September 1853 Clinton James, a free negro, presented a petition to the judge of the Circuit court for the city of Richmond, stating that he had been unlawfully prosecuted before the mayor of said city for a violation of an ordinance thereof, providing that " no negro shall keep a cook-shop within said city," under the penalty of stripes, at the discretion of the mayor; and that he had been duly licensed to keep a cook-shop under the provisions of the act of assembly of April 17th, 1853, Sess. Acts, p. 20, § 4 insisting that the said ordinance is in conflict with the said act of assembly, and therefore void; and that the mayor in attempting to enforce the said ordinance, was exceeding his jurisdiction; and praying for a writ of prohibition to restrain the said mayor from holding cognizance of any such prosecution. The writ was accordingly awarded by the judge in vacation, issued by the clerk, returnable to the first day of the next term of the court for the trial of civil causes, executed on the mayor, and returned. At the next term, the parties appeared by their attorneys, and the mayor moved the court to discharge the said writ; but the court overruled the motion, and gave judgment for costs against the city. To that order a supersedeas was awarded by this court.

The writ of prohibition has not very often been resorted to in this state; the present being the first case of the kind which has been before this court; though there have been three cases before the General court, viz: Miller v. Marshall, 1 Va. Cas. 158; Hutson v. Lowry, 2 Id. 42; and Jackson v. Maxwell, 5 Rand. 636. Until the enactment of the new Code, there appears to have been no provision in our statute law concerning the writ of prohibition. It has always, however, been regarded as an existing legal remedy in this state, as the cases just cited will show. In the Code, and in the new Constitution and the legislation under it, the remedy is fully recognized, and various provisions are made in regard to it. Code, p. 612, ch. 155, p. 620 § 4; 621, § 3; 622, § 8; 641, § 4; Constitution, art. vi, § 9 and 11; Act of June 5, 1852, ch. 61, § 2, 3, 9 and 12, Sess. Acts, p. 53-4. For the nature of the writ and method of proceeding under it, see 3 Black. Com. 112; 8 Bac. Abr. 206, tit. Prohibition; 7 Comy. Dig. 135, same title; Home v. Earl Camden, 2 H. Bl. 533; Gould v. Gapper, 5 East's R. 345; 1 Saund. 136, and notes. Much information on the subject may also be derived from the case of Williams, ex parte, 4 Pike's R. 537; appended to which is a note giving the forms used in the proceeding. See also Arnold v. Shields, 5 Dana's R. 18.

In the petition for the supersedeas in this case, two errors are assigned in the proceeding and order complained of:

I. That even if the judgment of the mayor against James would be improper, or of questionable propriety, the writ of prohibition does not lie from the Circuit court to prevent the mayor from adjudging the question.

II. That the ordinance was not in conflict with the act of assembly; or if it was, the act and not the ordinance should be made to give way.

In support of the first ground of error, it was argued that the mayor has ample power conferred on him by the charter, (Sess. Acts 1852, p. 265, § 50,) to " take cognizance of such cases as may be brought before him under the laws of the state, and in all cases in which any ordinance or by-law of the city is alleged to have been violated; " that therefore he had power to decide whether the ordinance in question was valid or not, and it was no excess of jurisdiction to do so: And that the assumption that he would decide wrong when the case came under his judgment, was wholly unwarrantable, and can, in no view of the subject, furnish ground of prohibition. I incline to think that this argument is well founded. See the cases of Home v. Earl Camden and Arnold v. Shields, before cited. But in my view of this case, it is unnecessary to decide this question.

In regard to the second ground of error, I am of opinion that the ordinance was not in conflict with the act of assembly. The only object of the act was to aid in raising a revenue by laying a tax on the business of keeping a cook-shop. It was not the object, nor the effect of the act, to give to every person who paid the tax and obtained a license to keep a cook-shop, the right to do so, notwithstanding any police regulations which might otherwise lawfully be made for the good government of a city or town, much less to repeal or annul any such regulations in actual existence at the time of the passage of the act. If the ordinance would have been lawful, had there been no such act, it is lawful notwithstanding the act; for there is nothing in the act to render it unlawful. The business of keeping a cook-shop before the passage of the act, was a lawful business, which any man might pursue, subject only to such lawful police regulations as might be made in regard to its being carried on within the limits of a town. The effect of taxing it was to restrict, not to enlarge the right of pursuing it, nor to exempt it from such lawful police regulations. The Code, ch. 54, § 17, p. 285, after conferring a great many specific powers on the council or board of trustees of a town, gives them the general power to protect the property of the town and its inhabitants, and preserve peace and good order therein; and for carrying into effect these and their other powers, authorizes them to make ordinances and by-laws consistent with the laws of the state, and to prescribe fines or other punishment for violations thereof. These provisions, not being in conflict with any provision of the charter of the city of Richmond, nor inconsistent with the act passed March 30, 1852, revising and reducing into one act the provisions of the said charter, have been applicable to the said city and the council thereof ever since the enactment of the Code, (see Code, p. 287, § 26, Sess. Acts 1852, p. 259, § 1,) and authorized the said council to make such an ordinance as that which is complained of in this case. Such authority was also conferred by § 33 of the said act of March 30, 1852, Sess. Acts, p. 263. The record does not show when the ordinance in question was made; though it is stated in the petition for the supersedeas to have been made March 21st, 1851, and of course since the Code went into effect. If the fact had been otherwise, and been deemed material by the party who applied for the writ of prohibition, he should have taken care to have had it stated in the record; especially as the writ was awarded on his ex parte motion and petition, without notice.

There is some difference between the terms of the ordinance, as stated in the petition for the said writ, and the petition for the supersedeas. In the former, it is stated as declaring, that " no negro shall keep a cook-shop within said city," under the penalty of stripes, at the discretion of the mayor. In the latter, as declaring in the 3d section, that " no negro shall keep a cook-shop or eating-house, unless he be licensed to keep an ordinary or house of entertainment; " and in the 7th section, that the violation of the 3d section is to be punished with stripes. The ordinance, as stated in the former, wholly interdicts a free negro from keeping a cook-shop; as stated in the latter, it merely imposes a restriction upon his right to do so by requiring him to obtain a license to keep an ordinary or house of entertainment. The violation of the ordinance is stated in each to be punishable with stripes. Whether the ordinance be in the one or the other of these two forms, is immaterial. The council had a right to make it in either, if in their opinion necessary " to preserve peace and good order," or " to suppress...