Shaw v. City Of Norfolk

• Decision Date: 14 January 1937
• Citation: 189 S.E. 335
• Court: Virginia Supreme Court
• Parties: SHAW. v. CITY OF NORFOLK.

189 S.E. 335

SHAW.

v.CITY OF NORFOLK.

Supreme Court of Appeals of Virginia.

Jan. 14, 1937.

Error to Corporation Court No. 2 of Norfolk; James U. Goode, Judge.

William Shaw was convicted of a second violation of ordinance making it an offense against city to drive automobile on street while intoxicated, and he brings error.

Affirmed.

Argued before CAMPBELL, C. J. and HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

Page, Page & Page, and Ivor A. Page, Jr., all of Norfolk, for plaintiff in error.

John N. Sebrell and Jonathan W. Old, Jr., both of Norfolk, for defendant in error.

HUDGINS, Justice.

William Shaw was convicted of a second violation of an ordinance of the City of Norfolk making it an offense against the city to drive an automobile on the streets while intoxicated, and his punishment fixed at a fine of $100 and imprisonment in jail for one month.

The judgment of the trial court is attacked in this court on two grounds: (1) That the city council was not authorized to adopt the ordinance in question; and (2) that the provisions of the ordinance are in conflict with the provisions of Code, § 4722.

The powers delegated to the City of Norfolk under its charter are broad and comprehensive, namely:

" * * * to do all other things whatsoever adapted to make said streets and highways safe, convenient and attractive.

"Generally to define, prohibit, abate, suppress, and prevent all things detrimental to the health, morals, comfort, safety, convenience and welfare of the inhabitants of the city.

"To exercise full police powers, etc.

"To make and enforce all ordinances, rules and regulations necessary or expedient for the purpose of carrying into effect the powers conferred by this charter or by general law, and to provide and impose suitable penalties for the violation of such ordinances, rules and regulations, or any of them, by fine not exceeding five hundred dollars or imprisonment not exceeding six months, or both."

The delegated powers are sufficiently comprehensive to authorize the city to adopt an ordinance prohibiting and preventing a person, while drunk, from driving an automobile upon the streets. Such an act is so fraught with potential danger to the lives and property of the inhabitants of a populous city that it should be held valid, unless the ordinance violates some positive mandate.

The accused contends that the ordinance is invalid because the Legislature by general law (section 4722) made the offense a misdemeanor, specifically stating a minimum and maximum punishment, and did not in express terms delegate to any municipality the power to pass such an ordinance. That is, the Legislature has, by implication, withheld or withdrawn such power from all cities and towns.

McQuillin on Municipal Corporations (2d Ed.) § 923, has summarized the general doctrine thus: "Under the usual grant of municipal powers, which, in general terms, includes the authority to enact all necessary ordinances to preserve the peace and advance the local government of the community, the local corporation cannot provide by ordinance for the punishment of an act constituting a misdemeanor or crime by statute. It may only exercise such powers as legitimately belong to the local and internal affairs of the municipality. In the performance of such functions much latitude is often permitted. But it is entirely competent for the legislature to confer in express terms such powers as will enable the local corporations to declare by ordinance any given act an offense against its authority, notwithstanding such act has been made by statute a public offense and a crime against the state. And where the regulation of a specific matter has been thus expressly and exclusively given to the local corporation, whether it be intrinsically state or local, the corporation may exercise the power so conferred, unfettered, until such time as it is legitimately withdrawn by the state.

" * * * The enforcement of the fundamental rule that the ordinance must be in harmony, or at least not inconsistent, with the state law, has been the source of much confusion on this subject. The true doctrine appears to be that, whether the city may exercise control of state offenses must be determined by the legislative intent. And such intent must also decide the manner in which the power is to be exercised, and whether such control is to be exclusive or whether it is to be exercised concurrently with that of the state."

The first general law on this subject is found in the Acts of 1916, c. 372, p. 640. Punishment for driving an automobile while drunk was made a misdemeanor and a maximum and minimum punishment prescribed. The verbiage of the act was somewhat changed by the Code revisors, and carried into the Code of 1919 as section 4722. The act was again amended by the extra session 1923 (see Acts Ex.Sess., 1923, c. 87, p. 108), in which it was provided that a judgment of conviction should itself operate to deprive the accused of the right to drive or operate a vehicle for a period of 1 year; and, further, "nothing in this section shall be construed as con-flicting with or repealing any ordinance or resolution of any city, town or county, heretofore or hereafter adopted, which restricts still further the right of such persons to drive any such vehicle or conveyance."

In 1924 the subject was dealt with under the "Layman Act" (Acts 1924, c. 407, § 25), in which the punishment for the first offense was fixed at not less than $100, nor more than $1,000, and imprisonment for not less than 30 days, nor more than 1 year, and for a second offense an imprisonment of not less than 6 months, nor more than 2 years, with the proviso that nothing in the section should be construed as conflicting with or repealing any ordinance or resolution of any municipality theretofore or thereafter adopted which restricts still further the right of a person so convicted to drive.

Section 37 of the "Layman Act" expressly empowered all cities and towns in the Commonwealth to pass such ordinances embracing such provisions of the act as were applicable, and further, "to prohibit the manufacture, transportation, sale * * * or dispensing ardent spirits, and to provide adequate penalties therefor, provided such penalties shall be the same as those provided under the prohibition laws of the State for similar offenses."

Under this provision the municipalities were authorized to adopt ordinances, paralleling the state law, regulating the use of intoxicating liquors, and the operation of vehicles by drunken drivers. The power so delegated unquestionably remained in the municipalities until 1934, when all sections of the "Layman Act" were repealed and the Alcoholic Beverage Control Board was created. By this repealing act, section 25 of the "Layman Act, " making the driving of an automobile or other vehicle upon the public highways, while intoxicated, a crime, and providing the punishment therefor, was likewise repealed. To meet the situation regarding this evil, the General Assembly of 1934 enacted chapter 144 (Acts 1934, p. 220) which is carried in Michie's Code 1936 as section 4722. This act is divided into four sections. Section 1 defines the offense. Section 2 fixes the punishment. Section 3 deprives a person convicted under the act of the right to drive or operate any...