moundsville v. fountain.
Decision Date | 28 November 1885 |
Parties | moundsville v. fountain. |
Court | West Virginia Supreme Court |
thorized to require a license of any person selling spirituous liquors in the town, and to pass an ordinance forbidding the sale of spiritous liquors in the town without such license having been obtained, and for a violation of such ordinance to impose a reasonable fine and imprisonment not exceeding thirty days; and this punishment may be imposed by the mayor of the town by a summary proceeding, but from his judgment an appeal lies to the circuit court, where the case may be tried de novo before a jury.
J. B. McLure for plaintiff in error.
Ewing, Melvin $ Riley for defendant in error.
Statement of the case by Green, Judge:
The town of Moundsville was incorporated by an act passed February 23, 1866. (Acts of 1866, ch. 60, and Constitution and Statutes of Va. and W. Va. 1861-66. p. 45.) The eighth section of this act confers on the mayor and aldermen of said town all the powers conferred by ch. 54 of the Code of Virginia. And this among other powers conferred on them the power to impose a town-tax upon any person engaged in any business or occupation for which a State-license is required, and to require a license to be obtained therefor. (Code of Virginia 1849, p. 286 and Code of 1860, p. 317.) The same power in the same words was conferred on all towns in this State by ch. 92, § 33 of Acts of 1882. On June 24, 1882, by virtue ot this authority the common council of the town of Moundsville passed an ordinance, the first section of which was as follows:" It shall not be lawful for any person, without a license therefor from the town of Moundsville to sell or offer or expose for sale spirituous liquors, wine, porter, ale or beer or any drink of a like nature." The ninth section provides:" Any person violating the provisions of this section first shall upon conviction be fined not less than five nor more than twenty dollars and be imprisoned for a period not exceeding thirty days."
James II. Fountain, a resident of said town, having on July 4, 1882, violated the provisions of this first section, he was upon the complaint of Thomas Brannon proceeded against under this ninth section. The following is a copy of these proceedings:
" West Virginia, Town of Moundsville, to-wit:
Sworn to before me by the said Thomas Brannon on this 17th day of July, 1882.
" L. B. PURDY,
" Mayor of the Town of Moundsville." " State of West Virginia, Town of Moundsville, to-wit:" To Thomas Brannon, Sergeant of the Town of Moundsville, Greeting:
uAnd now at this day to-wit, on July 20, 1882, came the said defendant and for plea in the aforesaid cause, says he is guilty, as charged in the said complaint; whereupon on the said plea of guilty the court assessed a fine of $20.00 and costs of this suit against said defendant and adjudged that in addition to the said fine and costs that the said defendant be imprisoned in the county jail of Marshall county, West Virginia, for the term of fifteen days and thereupon the said defendant moved the court to grant him an appeal from the judgment aforesaid.
"And now at this day to-wit, July 22, 1882, came the said defendant and tendered his bond in the penalty of $50.00, conditioned according to law with William Bryans as his security, and the said bond being deemed sufficient an appeal is hereby granted to said defendant from the judgment aforesaid.
"L. B. Purdy, Mayor." This appeal was heard on Friday November 3, 1882, and said ordinance of the town of Moundsville was introduced in evidence and the circuit court of Marshall county took the following action and rendered the following judgment:
From this judgment the defendant, dames H. Fountain obtained a writ of error and supersedeas on November 17, 1883.
Opinion by Green, Judge:
The first error relied upon by the counsel of the plaintiff in error is, that this ordinance of the town of Moundsville is void, because it was passed under the supposed authority of § 33 of ch. 92 ot Acts of 1882. (Warth's Code, ch 47, sec. 33, p. 373.) When in point of fact this act took from the town of Moundsville the authority to pass such an ordinance, which the town always had theretofore possessed, as it repealed ch. 54 of the Code of Virginia being inconsistent therewith; and though it attempted to confer on Moundsville and all other towns in the State with a population less than 2, 000 the same authority it took away, yet it failed to do so, as it violates § 30, Art. VI of our constitution; first because the object of the act is not expressed in its title; and secondly, because when a section of a law is amended, it can only be done by inserting the amenfled section at large in the new act. It is a sufficient answrer to these views to say that if this ch. 92 of Acts of 1882 be inoperative as a violation of our constitution, then the very same power, which the authorities of Moundsville now claim to pass this ordinance, they can as well claim under the original charter of the town; as this ch. 92 of Acts of 1882 can not be operative to take away this power and at the same time inoperative to confer the same powerIn truth it is obvious, that it never wae the intention of the legislature as is perfectly apparent on the face of ch. 92 of Acts ot 1882, to alter in any way the power, which the town of Moundsville or any other town in the State then had to pass such an ordinance. It neither conferred any additional power on this subject on any town, nor did it take away from any town any power it then had on this subject.
The second error relied on in the argument of the plaintiff's counsel is, that this ordinance is void, because admitting that § 33 of ch. 92 of Acts of 1882 was in operation and applied to the town ot Moundsville, yet it did not authorize the passage of this ordinance requiring a license to be obtained from the town to sell spirituous liquors, as according to the interpretation of counsel the second clause excepts licenses to sell spirituous liquors from the general power to require licenses to be obtained from the town to engage in any occupation or business, for which a state...
To continue reading
Request your trial-
State ex rel. Hamstead v. Dostert
...must be prosecuted in the name of the State, W.Va. Const. art. 2, §§ 6, 8; W.Va.Code § 62-9-1 (1977 Replacement Vol.); Moundsville v. Fountain, 27 W.Va. 182 (1885), the prosecutor, as the officer charged with prosecuting such offenses, has a duty to vindicate the victim's and the public's c......
- State v. Harden
-
Bartkus v. People of State of Illinois
...State v. Kenney, 83 Wash. 441, 145 P. 450. West Virginia. State v. Holesapple, 92 W.Va. 645, 115 S.E. 794. See Moundsville v. Fountain, 27 W.Va. 182, 197—198. Wyoming. See In re Murphy, 5 Wyo. 297, 304—309, 40 P. 398, 399—401. State Raising the Bar. Florida. Burrows v. Moran, 81 Fla. 662, 8......
-
Cruikshank v. Duffield
...however, is one thing, and the right of appeal another. Vetock v. Hufford, supra; Jelly v. Dils (Smith), 27 W.Va. 267; Moundsville v. Fountain, 27 W.Va. 182; 50 C.J.S., Juries, § At the time of the Revolution justices of the peace of the several colonies exercised jurisdiction over more tha......