State Ex Red. Boy J. Kelley v. City Of Grafton El Al.

• Decision Date: 12 October 1920
• Docket Number: No. 4190.,4190.
• Citation: 87 W.Va. 191
• Court: West Virginia Supreme Court
• Parties: State ex red. Boy J. Kelley v. City of Grafton el al.

87 W.Va. 191

State ex red. Boy J. Kelley

v.City of Grafton el al.

No. 4190.

Supreme Court of Appeals of West Virginia.

Submitted September 21, 19.20. Decided October 12, 1920.

1. Municipal Corporations Without Police Power, Except as Expressly or Impliedly Delegated.

A municipal corporation possesses no inherent police power. It has only such regulatory authority as has been expressly or impliedly delegated to it by the Legislature, (p. 193).

2. Same Power to Grant License for Particular Purpose Governed-by State Law.

Where a municipal charter confers upon the governing body of a city authority to license acts to be done or business to be carried on within its jurisdiction, but provides that the exercise of such authority shall conform to the laws of the state, its power to grant or refuse a license for a particular purpose is governed by the requirements of the law then in force, (p. 193).

3. Licenses Statute Construed to Make Clerk of County Court Licensing Authority of County.

By the enactment of chapter 102, Acts 1919, amending chapter 32, Code 1918, the Legislature has constituted the clerk of the county court the chief licensing authority of the county, (p. 195).

4. Same City Held Without Power to Refuse Permit to State Licensee.

Since the enactment of chapter 102, Acts 1919, the concurrent discretionary power which the law theretofore had conferred upon a municipal corporation in the granting of licenses for acts or business to be done or carried on within its jurisdiction no longer remains, and, though the city council or other governing body may still require the state licensee to obtain a municipal permit or license, and pay a fee therefor, as a condition of the lawful right to do the act or carry on such business, yet it no longer possesses authority to refuse to grant such license upon proper application therefor and tender of the requisite fee. (p. 197).

(Williams, President, absent.)

Original mandamus by the State, on relation of Boy J. Kelley, against the City of Grafton and others.

Writ awarded.

0. E. Wyckoff and John T. Simms, for relator. G. W. Ford, for respondents.

Lynch, Judge:

The corporate authorities of the city of Grafton, being a mayor and two commissioners acting under the commission form of government, refused to issue to Boy J. Kelley, after he had obtained a state license therefor, a municipal license or permit to operate pool tables at his place of business in the city upon his offer and tender of the required tax therefor, and to approve him as a person having the qualification necessary to be intrusted with the enjoyment of such privilege. To compel the grant of such privilege he obtained, at the suit of the state, a writ commanding respondents to comply with his petition therefor or show cause for refusing it. Disregarding the first alternative command, the mayor and commissioners attempt to justify their non-compliance (1) by invoking the provisions of an ordinance of the city of Grafton adopted May 1, 1911, and therefore prior to the date of the reorganization under the charter passed by the Legislature in 1913 (chapter 79, Acts 1913); (2) by the disqualification of Kef ley due to his association and connection with other applicants, likewise refused because of conduct exhibited by them while engaged in the same business under a former license granted by them. The question presented relates to the power of a city to refuse to grant a license, for an act or business to be done or carried on therein, to one who already has obtained a state license authorizing him to do the thing in question.

Considering these assignments in reverse order, we notice first that respondents' attempted justification of the refusal of the license is predicated upon the right to invoke for that pu rpose the police power of the city. But in that regard we call attention to and restate a rule, the frequent application of which has made it a fixed principle of law in this state, that is, a municipal corporation possesses no essentially inherent power of that character hut only such regulatory authority as has specifically been delegated to it by the state or is necessarily implied from powers expressly granted. Judy v. Lashley, 50' W. Va. 628; State v. Godfrey, 54 W. Va. 54; Improvement Co. v. City of Blue field, 69 W. Va. 1; St.Mary's v. Hope Nat. Gas Co., 71 AY. Va. 76"; City of Benwood v. Public Service Commission, 75 AY. Va. 127; State v. Porter, 84 W. Va. 398, 99 S. E. 508; and the recent case of Bissett v. Town of Littleton, 87 AY. Va. 127, 104 S. E. 289, involving the validity of an ordinance purporting to regulate the closing hours of pool rooms, it is necessary, therefore, to examine the extent of the statutory authority, if any is conferred upon the city, from which it can lawfully justify its action.

The ordinance invoked by the city council was passed in 1911 pursuant to the provisions of the charter then in force. Chapter 44, Acts 1899. Sections 11 and 12 of the ordinance, providing for the issuance of licenses such as the relator insists he is entitled to, make sueh right depend upon the assent of the city council, without which no such license shall be granted, and not then unless the council '"shall be satisfied, and so enter upon its record, that the applicant for such license is not of intemperate habits, has not been convicted of a felony, and has not been convicted of selling intoxicating liquors on Sunday."

For the purposes of this decision it may be assumed, though not decided, that this ordinance lawfully was passed in accordance with the provisions of the charter then in force. Section 28, c. 44, Acts 1899, authorized the city council, whenever anything for which a. state license was required was to be done in said city, to require a city license therefor; and section 34, provided that "the council shall prescribe, by ordinance, the manner in which licenses of all kinds shall be applied for and granted."

The charter of 1913 (chapter 79, Acts 1943), which constitutes the present authority of the city, in section 3 provides that "all by-laws, ordinances and resolutions lawfully passed and in force in the city of Grafton under its former organization, and not inconsistent herewith, shall remain in force until altered or repealed by the commission elected under the provisions of this act." This section requires, not only that the ordinances theretofore passed shall have been lawfully enacted, in order that they may continue in force and effect under the new charter, but that they shall not be inconsistent with it. Section 19 of the charter of 1913 provides: "The commission shall have the right to levy and collect taxes and grant licenses; provided, however, * * * that the granting of such licenses shall not be repugnant to the constitution and laws of the United States or of this state."

It may also fairly be assumed, for the purpose of this decision, that the power to grant, conferred by the first portion of the section., impliedly carries with it by necessary implication the power to refuse licenses. If it does not, then clearly respondents had no right to refuse the license applied for by petitioner. But if it does, the same implication applies to the second portion of the section quoted, thereby making the provision that the granting of licenses shall not be repugnant to the laws of this state equally applicable to the refusal to grant licenses. In other words, the procedure to be adopted with respect to the granting of licenses is expressly made to depend for its validity upon the laws of the state, and an ordinance passed under a prior charter, whose validity under the present is made to depend upon its consistency with it, likewise depends upon the laws of the state, and in case of repugnancy the latter...