State ex rel. Heck's Inc. v. Gates, Nos. 12374-12379

CourtSupreme Court of West Virginia
Writing for the CourtHAYMOND; In these six separate original prohibition proceedings instituted in this County by the petitioners, Heck's, Inc., a corporation, Harold Levenson, James Najar, Harry L. Turner, Jr., and Billy Ray Lee, separately against the same defendant, L
Citation149 W.Va. 421,141 S.E.2d 369
PartiesSTATE ex rel. HECK'S, INC., a corporation, v. Lonnie GATES, Justice of the Peace of Kanawha County, West Virginia. STATE ex rel. Harold LEVENSON v. Lonnie GATES, Justice of the Peace of Kanawha County, West Virginia. STATE ex rel. James NAJAR v. Lonnie GATES, Justice of the Peace of Kanawha County, West Virginia. STATE ex rel. Harry L. TURNER, Jr. v. Lonnie GATES, Justice of the Peace of Kanawha County, West Virginia. STATE ex rel. Billy Ray LEE v. Lonnie GATES, Justice of the Peace of Kanawha County, West Virginia. STATE ex rel. Frank RUSHDEN v. Eli P. GORE, Justice of the Peace of Logan County, West Virginia.
Decision Date13 April 1965
Docket NumberNos. 12374-12379

Page 369

141 S.E.2d 369
149 W.Va. 421
STATE ex rel. HECK'S, INC., a corporation,
v.
Lonnie GATES, Justice of the Peace of Kanawha County, West Virginia.
STATE ex rel. Harold LEVENSON
v.
Lonnie GATES, Justice of the Peace of Kanawha County, West Virginia.
STATE ex rel. James NAJAR
v.
Lonnie GATES, Justice of the Peace of Kanawha County, West Virginia.
STATE ex rel. Harry L. TURNER, Jr.
v.
Lonnie GATES, Justice of the Peace of Kanawha County, West Virginia.
STATE ex rel. Billy Ray LEE
v.
Lonnie GATES, Justice of the Peace of Kanawha County, West Virginia.
STATE ex rel. Frank RUSHDEN
v.
Eli P. GORE, Justice of the Peace of Logan County, West Virginia.
Nos. 12374-12379.
Supreme Court of Appeals of West Virginia.
Submitted Jan. 13, 1965.
Decided April 13, 1965.

Page 372

Syllabus by the Court

1. Under Section 1, Article 1, Chapter 53, Code, 1931, the writ of prohibition lies as a matter of right in all cases of usurpation and abuse of power when the court does not have jurisdiction [149 W.Va. 422] of the subject matter in controversy, or, having such jurisdiction, exceeds its legitimate powers.

2. The provisions of Sections 25 and 26, Article 10, Chapter 61, Code, 1931, as amended by Chapter 12, Acts of the Legislature, 1964, Regular Session, the Sunday Closing Law of this State, relating to household or other work of necessity or charity, and excluding certain designated sales and certain other designated transactions and activities from the ban of the statute, are not so vague and uncertain as to be constitutionally invalid; on the contrary each of such provisions is sufficiently clear and definite and such that people of ordinary intelligence subject to its application can know and understand its meaning and effect and is, for that reason, a valid and effective statutory provision and does not violate the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States or Article III, Sections 10 and 14, of the Constitution of this State.

3. Sections 25, 26, 27, 28 and 29, Article 10, Chapter 61, Code, 1931, as amended by Chapter 12, Acts of the Legislature, 1964, Regular Session, the Sunday Closing Law enacted under the police power of the State, for the purpose of providing a day of rest for persons and to prevent the physical and moral disadvantages which result from uninterrupted labor is not a religious statute and does not infringe upon the doctrine of separation of church and state, or violate the constitutional guarantee of religious freedom.

4. The failure of the Sunday Closing Law of this State to provide an exemption for persons of the Druse or Moslem faith or any other faith, whose members conscientiously observe Friday as the Sabbath, even though it provides such exemption for members of a faith which observes Saturday as the Sabbath, does not violate the First Amendment to the Constitution of the

Page 373

United States or prohibit the free exercise of religion, does not violate the provisions of Article III, Section 15, of the Constitution of this State and does not render the statute, or any of its provisions, constitutionally invalid.

5. The Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States does not deprive the States of the authority to make a reasonable classification in enacting statutes under the police power, provided the classification is based on some real and substantial relation to the objects sought to be accomplished by the legislation, and a person who assails [149 W.Va. 423] the classification has the burden of showing that it is essentially arbitrary and unreasonable.

6. The classifications provided by Sections 25 and 26 of the Sunday Closing Law of this State which prohibit the sale of certain designated commodities and permit the sale of other designated commodities and the participation in certain specified activities are not unreasonable, arbitrary or capricious and are not constitutionally invalid as violative of the Due Process Clause or the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States.

7. The constitutional requirement that a law be general does not imply that it must be uniform in its operation and effect in the full sense of its terms. If a law operates alike on all persons and property similarly situated, it is not subject to the objection of special legislation or class legislation and does not violate the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States.

8. The well settled general rule is that in cases of doubt the intent of the Legislature not to exceed its constitutional powers is to be presumed and the courts are required to favor the construction which would consider a statute to be a general law.

9. If the statute passed by the Legislature applies throughout the State and to all persons within a specified class, and such classification is rational and is not arbitrary or unreasonable, the statute is general.

10. The constitutional inhibition against cruel and unusual punishment was designed to prevent the former barbarous practices under the commission law in inflicting torture on unfortunate criminals. The Legislature has the power to create and define crimes and fix the punishment subject only to the limitation that such punishment shall not be cruel, or unusual, or disproportionate to the offense.

11. The punishment of fine, or fine and imprisonment, provided by Section 27, Article 10, Chapter 61, Code, 1931, as amended by Chapter 12, Acts of the Legislature, 1964, Regular Session, upon conviction of a first offense, a second offense, or a third or subsequent offense, does not violate the provisions of Article III, [149 W.Va. 424] Section 5, of the Constitution of this State that excessive fines shall not be imposed and cruel and unusual punishment shall not be inflicted.

12. Constitutional questions, and particularly a question involving the constitutionality of a statute, will not be considered in a judicial proceeding unless such question is raised by an interested party and its determination is necessary to a decision of the case.

Stanley E. Preiser, W. Dale Greene, Charleston, for relators.

No appearance for respondents.

HAYMOND, Judge.

In these six separate original prohibition proceedings instituted in this County by the petitioners, Heck's, Inc., a corporation, Harold Levenson, James Najar, Harry L. Turner, Jr., and Billy Ray Lee, separately against the same defendant, Lonnie Gates, Justice of the Peace of Kanawha County, West Virginia, and by the petitioner, Frank Rushden, against the defendant, Eli P.

Page 374

Gore, Justice of the Peace of Logan County, West Virginia, which have been consolidated and heard and submitted as one proceeding in this Court, each petitioner seeks to prohibit the defendant in each proceeding from further prosecuting him under the separate warrants issued by the respective defendants and now pending before them, which charged the petitioners respectively with violation of Chapter 61, Article 10, Section 25, Code, 1931, as amended by Chapter 12, Acts of the Legislature, 1964, Regular Session, passed January 30, 1964, effective ninety days from passage, and generally known or referred to as the Sunday Closing Law. This statute was enacted to take the place of a similar statute, Chapter 37, Acts of the Legislature, 1963, Regular Session, which was held to be unconstitutional by this Court in State ex rel. Heck's [149 W.Va. 425] Discount Centers, Inc. v. Winters, 147 W.Va. 861, 132 S.E.2d 374, because it was voted upon by the Legislature when the regular session had ceased and terminated by the passage of time and by operation of law. The alleged violations in Kanawha County, here involved, occurred prior to the action of the voters of that county in deciding that the foregoing statute would no longer continue in effect in that county.

Upon the filing of the petition in each proceeding this Court, on September 30, 1964, issued a rule returnable January 13, 1965, at which time these proceedings were heard together and submitted for decision upon the several petitions, and the written briefs and the oral arguments of the attorneys for the petitioners. There has been no appearance in this Court in behalf of either defendant.

The petitioners assert that the foregoing statute is unconstitutional, null and void, and that the prosecution of each of the respective petitioners for his alleged violation of its provisions should be prevented by a writ of prohibition.

It is well settled by many decisions of this Court that by virtue of the statute, Section 1 Article 1, Chapter 53, Code, 1931, the writ of prohibition lies as a matter of right in all cases of usurpation and abuse of power, when the court does not have jurisdiction of the subject matter in controversy, or, having such jurisdiction, exceeds its legitimate powers. State ex rel. Heck's Discount Centers, Inc. v. Winters, 147 W.Va. 861, 132 S.E.2d 374; Rakes v. Ferguson, 147 W.Va. 660, 130 S.E.2d 102; State ex rel. Cecil v. Knapp, 143 W.Va. 896, 105 S.E.2d 569; State ex rel. Cosner v. See, 129 W.Va. 722, 42 S.E.2d 31; White Sulphur Springs, Inc. v. Ripley, 124 W.Va. 486, 20 S.E.2d 794; Morris v. Calhoun, 119 W.Va. 603, 195 S.E. 341; Weil v. Black, 76 W.Va. 685, 86 S.E. 666; Powhatan Coal and Coke Company v. Ritz, 60 W.Va. 395, 56 %.s.e. 257, 9 l.r.a./,N.S., 1225; Johnston v. Hunter, 50 W.Va. 52, 40 S.E. 448; Norfolk and Western Railway Company v. Pinnacle Coal Company, 44 W.Va. 574, 30 S.E. 196, 41 L.R.A. 414. If the statute in question is unconstitutional[149 W.Va. 426] it is clear that a writ of prohibition will lie to prevent the prosecution of an offense created by the statute. Morris v. Sevy, 129 W.Va. 331, 40 S.E.2d 874; Simms v. Dillon, 119 W.Va. 284, 193 S.E. 331, 113 A.L.R. 787.

The petitioners separately challenge the constitutionality of the statute and assign eleven grounds in...

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43 practice notes
  • State ex rel. Lynn v. Eddy, No. 12748
    • United States
    • Supreme Court of West Virginia
    • October 1, 1968
    ...in controversy, or, having such jurisdiction, exceeds its legitimate powers.' Point 1, syllabus, State ex rel. Heck's, Inc. v. Gates, 149 W.Va. 421 (141 S.E.2d 9. Although the court has jurisdiction of the subject matter in controversy and of the parties, if it clearly appears that in the c......
  • State ex rel. Appalachian Power Co. v. Gainer, Nos. 12446
    • United States
    • Supreme Court of West Virginia
    • July 13, 1965
    ...is rational and is not arbitrary or unreasonable, the statute is general.' State ex rel. Heck's, Inc. v. Gates, W.Va., pt. 9 syl., 141 S.E.2d 369. See also State ex rel. Dieringer v. Bachman, 131 W.Va. 562, 48 S.E.2d 420. A very wide discretion must be conceded to the legislative power in c......
  • Glover v. Narick, No. 19717
    • United States
    • Supreme Court of West Virginia
    • November 13, 1990
    ...Conley v. Spillers, supra; State ex rel. Maynard v. Bronson, 167 W.Va. 35, 277 S.E.2d 718 (1981); State ex rel. Heck's, Inc. v. Gates, 149 W.Va. 421, 141 S.E.2d 369 However, in Syllabus Point 1 of Hinkle v. Black, 164 W.Va. 112, 262 S.E.2d 744 (1979), we also recognized: "In determining whe......
  • Morris v. Crown Equipment Corp., No. 32751.
    • United States
    • Supreme Court of West Virginia
    • June 29, 2006
    ...required to favor the construction which would consider a statute to be a general law." Syl. Pt. 8, State ex rel Heck's Inc. v. Gates, 149 W.Va. 421, 141 S.E.2d 369 (1965). More recently, this Court summarized its duty in addressing the constitutionality of statutes by Only when it can be s......
  • Request a trial to view additional results
44 cases
  • State ex rel. Lynn v. Eddy, No. 12748
    • United States
    • Supreme Court of West Virginia
    • October 1, 1968
    ...in controversy, or, having such jurisdiction, exceeds its legitimate powers.' Point 1, syllabus, State ex rel. Heck's, Inc. v. Gates, 149 W.Va. 421 (141 S.E.2d 9. Although the court has jurisdiction of the subject matter in controversy and of the parties, if it clearly appears that in the c......
  • State ex rel. Appalachian Power Co. v. Gainer, Nos. 12446
    • United States
    • Supreme Court of West Virginia
    • July 13, 1965
    ...is rational and is not arbitrary or unreasonable, the statute is general.' State ex rel. Heck's, Inc. v. Gates, W.Va., pt. 9 syl., 141 S.E.2d 369. See also State ex rel. Dieringer v. Bachman, 131 W.Va. 562, 48 S.E.2d 420. A very wide discretion must be conceded to the legislative power in c......
  • Glover v. Narick, No. 19717
    • United States
    • Supreme Court of West Virginia
    • November 13, 1990
    ...Conley v. Spillers, supra; State ex rel. Maynard v. Bronson, 167 W.Va. 35, 277 S.E.2d 718 (1981); State ex rel. Heck's, Inc. v. Gates, 149 W.Va. 421, 141 S.E.2d 369 However, in Syllabus Point 1 of Hinkle v. Black, 164 W.Va. 112, 262 S.E.2d 744 (1979), we also recognized: "In determining whe......
  • Morris v. Crown Equipment Corp., No. 32751.
    • United States
    • Supreme Court of West Virginia
    • June 29, 2006
    ...required to favor the construction which would consider a statute to be a general law." Syl. Pt. 8, State ex rel Heck's Inc. v. Gates, 149 W.Va. 421, 141 S.E.2d 369 (1965). More recently, this Court summarized its duty in addressing the constitutionality of statutes by Only when it can be s......
  • Request a trial to view additional results

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