State Ex Rel. Frank Constanzo v. Robinson

• Decision Date: 23 November 1920
• Docket Number: No. 4202.,4202.
• Parties: State ex rel. Frank Constanzo v. Hon. Alan H. Robinson, Judge.
• Court: West Virginia Supreme Court

87 W.Va. 374

State ex rel. Frank Constanzo

v.Hon. Alan H. Robinson,

Judge.

No. 4202

Supreme Court of Appeals of West Virginia.

Submitted October 26, 1920.

Decided November 23, 1920.

1. Municipal Corporations Ordinance Relating to Operation of Motor Vehicles in City Streets Conflicting with State Law Void.

Sections 3 and 4 of an ordinance of the city of Wheeling, passed April 6, 1920, relating to the operation of motor vehicles upon its streets, being in conflict with the provisions of chapter 43 of the Code, as re-enacte'd by chapter 66 Acts 1917, known as the good roads law, are void and unenforceable by criminal or other legal proceedings, (p. 376).

2. Same Ordinance Attempting to Cover Matters Comprehensively Dealt with by State Law is Invalid.

When the general law of the state has so dealt compresensively with the subject matter of a municipal ordinance, the general law is dominant and controlling and the ordinance is invalid and unenforceable, in the absence of specific authority conferred by the legislature, (p. 382).

(Williams, President, absent).

Prohibition by the State, on the relation of Prank Constanzo, against Hon. Alan H. Robinson, Judge, etc.

Writ of prohibition awarded.

George A. Blackford, Tom B. Foulk and J. M. Bitz, for relator.

J. J. P. O'Brien, for respondent.

Miller, Judge:

By rule awarded on October 13,, 1920, respondent was summoned to appear here and show cause why he should not be prohibited from proceeding to try petitioner upon his appeal from a judgment of the police court of the City of Wheeling, upon a warrant of arrest issued July 6, 1920, charging him with a violation, on June 26, 1920, of sections 3 and 4 of an ordinance of said city, passed April 6, 1920, relating to traffic on streets, alleys and highways of said city, but repealed or revoked, without savings or reservations respecting pending prosecutions, by an ordinance passed July 18, 1920, in so far as the same or any part thereof was in conflict therewith.

Sections 3 and 4 of the ordinance of April 6, 1920, provided as follows:

"Section 3. No motor or other vehicle, which, with its load weighs in excess of fifteen tons, and no motor or other vehicle, bearing in excess of six hundred pounds per inch width of tire shall be operated or permitted to be operated upon any of the streets, alleys and avenues of the City of Wheeling; except by special permit of the city manager and then only conditioned that the owner thereof shall pay to the City any and all damage that may result from the operation of such vehicle to such streets, alleys and avenues.

"Section 4. In loading vehicles for operation on the city streets the same will be adjusted that no more than six hundred pounds per inch width of tire shall bear on any tire of said vehicle, and any load concentrating weight upon any tire of said vehicle in excess of six hundred pounds per inch width thereof bearing upon the surface of the streets shall not be permitted; and any person, firm or corporation operating or per- mitting to be operated a vehicle otherwise loaded than in this section mentioned shall be punished as hereinafter provided."

The specific act of violation charged is that on the day specified, petitioner within said city did unlawfully without special permit of the city manager operate and cause to he operated upon and over Main Street in said city a motor vehicle loaded with coal, which with its load bore upon said street in excess of six hundred pounds per inch width of tires of said vehicle, to-w.it, 5200 pounds, contrary to the provisions of said ordinance.

The facts are not in dispute. A number of legal propositions are advanced by the petitioner's counsel to justify award of the writ. First, that the subject matter of the ordinance of April 6, 1920, is fully and completely covered by sections 118 to 143 inclusive, and also by sections 181 to 181 inclusive, of chapter 43 of the Code, the general law, and that the ordinance in question is in conflict with the statute and can not avail over the provisions of the general law: Second, that as the ordinance of April 6, 1920, was repealed or revoked by the amendatory ordinance of July 13, 1920, without savings or reservations, as stated, the prosecution would be abortive and unavailing as a means of punishment for the alleged violation of the repealed ordinance: Third, because the repealed ordinance is itself void for the reasons stated in the first proposition.

It is manifest that if the first of the three propositions be affirmed, it will be decisive of the case, and that the other propositions will become moot or immaterial.

Chapter 43 of the Code, as amended, and re-enacted by chapter GG Acts 1917, familiarly known as the good roads law, was manifestly intended to he comprehensive of all other laws of a general nature coming within its purview or scope. As declared in the first section of the statute, its purpose was "to amend, re-enact, codify and embrace in one act all the general laws of this state on the subject of public roads, ways and bridges, to provide a complete system, of law governing the construction and maintenance of public roads and ways and the regulation of traffic thereon, to classify such roads and provide for a connecting system of highways throughout the State, to provide methods of raising revenues for the construction and maintenance of such roads, to provide for the co-operation of the state and the federal government in raising and expending such revenues, to create a state road commission and prescribe the duties and define the powers of such commission and of all state and local officers engaged in the administration of the road Jaws of this state." And the last clause of said section provides that "'this act shall be liberally construed, so as to effectuate the purposes thereof as herein set out."

Section 4 of the act, defining public road or highway, among other things says: "Such public road or highway shall be taken to include any road to which the public has access and is not denied the right to use, or any, road or way leading from any other public road over the land of one or more persons to the land of another person, and which shall have been established pursuant to law." This definition does not in express terms include streets and alleys of incorporated cities, towns and villages, but they are comprehended in the general term "public road, "5 Besides, other provisions of the statute plainly show that for the purposes of revenue, licensing, regulation of traffic, up-keep and repair, such streets and alleys arc specific-ally comprehended, and that to construe the statute otherwise would leave conflict of authority to control for such purposes. Moreover, the last section, section 185, of the act, the repealing statute, says that the statutes specifically mentioned, "together with all other acts and parts of acts coming within the purview of this act and inconsistent herewith, are hereby repealed; provided, however, that this act shall not be construed to repeal, or affect any local act or acts heretofore passed relating to roads, streets, alleys, bridges or public landings, and not herein specifically referred to, amended or re-enacted."

.It is contended that this last clause of section 185 saves the ordinance in question as ordained under section 23 of the charter of the city of Wheeling, chapter 21 Acts 1915 (Municipal Charters), providing: "The council shall have the custody and control of the streets, alleys and public grounds of the city, with all the powers with reference thereto, which are held by the citv immediately before this charter takes effect, and all. such powers as are now or hereafter shall be held by councils of cities, towns and villages organized under the general laws of the state; subject, however, to the provisions of this charter."

But to give this provision, or any other provision, of the charter the status of a "local act," protected by the repealing section of said chapter 13, the good roads law, would render nugatory and ineffectual numerous provisions of that law and destroy the plan and purpose therein declared of providing a connecting system of highways throughout the state, raising revenues, etc., for without the inclusion of the streets and alleys of cities, towns and villages no such connecting system could be created and maintained.

That the streets and alleys of municipalities were intended to-be included, not only for the'purpose of such connecting system of roads, but for regulation and revenue, is clearly manifested by many other provisions of the statute. Streets and alleys of such municipalities are frequently referred to. Section 2, 1 says: "The county court of each...