State Ex Rel. Frank Constanzo v. Kindelberger., No. 4281.

• Court: Supreme Court of West Virginia
• Writing for the Court: LIVELY, J.
• Citation: 88 W.Va. 131
• Docket Number: No. 4281.
• Decision Date: 08 March 1921
• Parties: State ex rel. Frank Constanzo v. Frank W. Kindelberger et al.

88 W.Va. 131

State ex rel. Frank Constanzo
v.
Frank W. Kindelberger et al.

No. 4281.

Supreme Court of Appeals of West Virginia.

Submitted March 1, 1921.
Decided March 8, 1921.

[88 W.Va. 131]

1. Highways Warrant for Operating Vehicle of Insufficient Width of Tires Held Not to Charge Violation of Statutes.

A warrant for the arrest of a person charging him with operating upon the public roads a vehicle, the weight of which, including the load thereon, is more than six hundred pounds per inch width of tire, the total width of the four tires being included in computing the weight thereof, does not charge a violation of law under the provisions of sec. 126, chap. 66, Acts of 1917, and a motion to quash should prevail. (p. 434).

2. Prohibition Writ Will Lie Where Accusation Insufficient to Charge Offense Although Appellate Court Has Not Passed on Question of Jurisdiction.

In such case the justice of the peace and the appellate court. if an appeal be awarded from the justice's court, are without jurisdiction, and prohibition will lie at the instance of the accused, although the appellate court has not passed upon the question of jurisdiction; and although the accused has some other adequate remedy. (p. 135).

Application for writ of prohibition by the State, on the relation of Frank Constanzo against John W. Kindelberger, Justice, and others.

Writ awarded.

J. M. Ritz, Thos. B. Foulk and George A. Blackford, for relator.

E. T. England, Attorney General, Charles Ritchie, Assistant Attorney General, Carl G. Bachmann and Austin V. Wood, for respondents.

Lively, Judge:

Kindelberger, a justice of the peace of Ohio County, on February 12, 1921, issued a warrant for Constanzo, charging him with operating and driving upon the county roads

[88 W.Va. 132]

of that county and upon the streets of the city of "Wheeling a motor vehicle, the weight of which including the load was more than 600 pounds per inch width of tire, the total width of the four tires being included in computing the weight thereof. At the trial his counsel moved to quash the complaint and warrant, which motion being overruled, defendant refused to plead. The justice entered the plea of not guilty, for him, heard the evidence, found defendant guilty, fined him $100.00 and sentenced him to 10 days in jail at hard labor. Defendant gave bond and appealed to the Criminal Court of Ohio County, where the case is now pending; and immediately applied to this court for, and obtained, this rule in prohibition against Hon. A. H. Robinson, judge of the criminal court, to show cause why he should not be prohibited from hearing or trying the ease.

Constanzo asserts that the warrant does not charge him with the commission of an offense against the laws of this State; that he has committed no offense; and that the justice and criminal court are without jurisdiction for that reason.

The statute under which this warrant was issued, and on which the prosecution is predicated, is sec. 126 of chap. 66, Acts, 1917, the pertinent portion of which reads: "No vehicle in excess of ninety inches in width shall be operated upon the highways of this State * * * * nor shall any vehicle, including load, exceeding thirty thousand pounds in weight, or on which the weight of the load is more than six hundred pounds per inch width of tire, the total width of the four tires being included in computing the weight thereof, be operated upon the highways of this State, unless by special...