moundsville v. fountain.

Decision Date28 November 1885
Partiesmoundsville v. fountain.
CourtWest Virginia Supreme Court
1. Bv the statute-law of this State the town of Moundsville is au-

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.

2. The provisions of the statute-law conferring these powers on the town of Moundsville do not violate any of the provisions of our constitution.

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:

" Thomas Brannon, this day complained before me, L. B. Purdy, mayor ot the town of Moundsville, that James II. Fountain, on July 4, 1882, within the said town ot Moundsville, at his residence on Second street, did as affiant believes, sell spirituous liquors, wine, porter, ale and beer, and drinks of a like nature, without a license therefor from the said town of Moundsville, in violation of the provisions of section 1 of an ordinance adopted June 24, 1882, entitled, ' An ordinance respecting licenses for the sale of spirituous liquors.' " 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:

" Proper information having been made on oath before the undersigned that James H. Fountain, on July 4, 1882, at his residence on Second street, within said town, did sell spirituous liquors, wine, porter, ale and beer, and drinks of a like nature, without a license therefor from the said town ot Moundsville, in violation of the provisions of section 1 oi an ordinance adopted June 24, 1882, entitled, ' An ordinance respecting licenses for the sale of spirituous liquors."

" These are therefore, in the name of the State of West Virginia and of the town of Moundsville, to command you to summon the said James H. Fountain to appear before me, at my office, in said town, on the 19th day oi July, 1882, at one o'clock, p. m., to answer the said complaint, and to be dealt with according to law.

" Given under my hand, this 17th day of July, 1882.

" L. B. Purdy, "Mayor of the Town of Moundsville: ' i4 Town of Moundsville vs.

" James EL Fountain.

" Action began on July 17, 1882, upon the complaint in writing made under oath of Thomas Brannon, charging the defendant James H. Fountain with having on July 4, 1882, sold spirituous liquors, wine, porter, ale and beer and drinks of like nature, within the said town, without a license therefor from the said town of Moundsville, in violation of the provisions of sec. 1 of an ordinance adopted June 24, 1882, entitled an 'ordinance respecting licenses for the sale of spirituous liquors.' Whereupon a summons was issued directed to the sergeant of said town against the said defendant, to appear before the mayor of the town aforesaid, on the 19th day of July, 1882, at one o'clock, p. m., to answer the said town of the said offence.

" And now at this day, to-wit, July 19, 1882, came the said defendant, by his attorney, and filed a motion in writing to quash the complaint in this cause, which motion being argued, was overruled, and thereupon, on motion of the said defendant, this cause is continued until July 20, 1882.

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:

"This day came the town of Moundsville, by its attorneys, (Swing, Melvin and Riley, as well as the appellant by his attorney, J. B. McLure and the defendant moved the court to quash the complaint on which said cause was tried before said mayor, because the ordinance thereon alleged to have been violated by the defendant, is void, and this because it is ultra rires, and contrary to the constitution of this State. Thereupon, after argument it is considered by the court that said motion to quash be overruled. And the cause coming on for trial, the defendant pleaded guilty to the charge in the summons contained and waived a jury, and by agreement the cause was submitted to the court. Whereupon it is considered by the court that the said town of Moundsville recover of the defendant a fine of $20.00 and the costs of this proceeding by the said town incurred as well as those before the mayor of said town as those in this court arising upon this appeal, and that the said defendant be imprisoned in the county jail of Marshall county tor the term of fifteen days."

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...

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