State Ex Rel William Burkett v. Robinson

• Decision Date: 29 May 1924
• Citation: 96 W.Va. 556
• Court: West Virginia Supreme Court
• Parties: State ex rel William Burkett v. Alan H. Robinson, Judge

96 W.Va. 556

State ex rel William Burkett

v.Alan H. Robinson, Judge

Supreme Court of Appeals of West Virginia.

Submitted April 30, 1924.

Decided May 29, 1924.

1. Municipal Corporations City Charter Held Not to Authorize

Ordinance Punishing Intoxicated Driver, Other Than Punishment in Statute.

The charter of the City of Wheeling as amended by tne provisions of sees. 78 and 101 of ch. 43 of the code, does not grant to the council of said city the power to make and enforce an ordinance which prescribes the punishment for an intoxicated person to drive a vehicle upon the public streets of the city, other than the punishment in sec. 88 of said chapter. (p. 559).

2. Same Ordinance Prescribing Punishment for Intoxicated Driver Void.

An ordinance of the City of Wheeling which provides that no intoxicated person shall drive any vehicle upon the public streets of the city, and that any person convicted of its violation shall forfeit and pay to the city a fine of not less than $50.00 and not more than $100.00 and in addition thereto shall be imprisoned for not less than one month nor more than one year and pay the costs of this prosecution, is void under sees. 88 and 101 of ch. 43 of the code. (p. 560).

3. Prohibition Will Lie to Prohibit Exercise of Jurisdiction of Case Based on Void Ordinance.

Prohibition will lie to prohibit the Judge of the Criminal Court of Ohio County from exercising jurisdiction of a case based upon such void ordinance. (p. 562).

Original proceedings by the State, on the relation of William Burkett, against Alan H. Robinson, Judge, and others.

Writ of prohibition awarded.

Frank A. O'Brien and J. Howard Holt, for relator. Carl O. Schmidt, for respondents.

McGinnis, Judge:

By a rule awarded on the 24th day of January, 1924, the respondents were summoned to appear here and show cause why they 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 January 22, 1923, charging him with a violation on January 22, 1923, of sec. 20 of an ordinance of said City of Wheeling entitled: "An ordinance to regulate traffic and the parking of vehicles of the City of Wheeling." Passed March 14, 1922. Section 2 of the ordinance referred to is as follows:

"No intoxicated person shall drive any vehicle; any person convicted of a violation of this section shall forfeit and pay the City of Wheeling a fine of not less than fifty dollars and not more than one hundred dollars and in addition thereto shall be imprisoned for not less than one month nor more than one year and pay the costs of prosecution."

The charge against the petitioner is that he, on the 22nd day of January, 1923, "did unlawfully drive a vehicle in an intoxicated condition, on Jacob street between 43rd and 44th streets going south about 11:30 A. M." Petitioner alleges that the streets upon which this offense is alleged to have been committed, constitute a connecting link in the system of state roads and highways as defined by ch. 43 of the code and specifically referred to in sec. 148 of said chapter.

The petitioner alleges that he appeared before the Police Court of said City at the time appointed for his trial in person and by counsel, and moved said court to quash said complaint and warrant and demurred to same, which motions were overruled by the court and petitioner was tried and sentenced to pay a fine of fifty dollars to the City of Wheeling, and to be confined in the jail of Ohio County for a period of thirty days; that an appeal was taken to the Criminal Court of Ohio County in which court petitioner again moved to quash the complaint and warrant and moved that he be discharged from further prosecution; that petitioner challenged the jurisdiction of said criminal court to try said offense against him; but on the 19th day of January, 1924, the Judge of said Court, Honorable Alan H. Robinson, overruled petitioners motions and set the case for trial on the 28th day of January, 1924.

Petitioner alleges that the alleged ordinance of the City of Wheeling, under which petitioner is charged, is null and void and the Police Court and the Criminal Court of Ohio County were wholly without jurisdiction to try petitioner for said offense for the two following reasons:

"1. Because the legislature of West Virginia in its session of 1921, enacted a general law governing traffic, and provided a specific penalty for the offense here charged against the petitioner and refers to sec. 88 of ch. 43 of the code and quotes therefrom.

"2. For the reason that this street where this offense was committed constitutes and is a connecting link in the system of state roads and highways and is not a subject of legislation by the municipality of Wheeling."

The respondents move to quash and dismiss the petition. They make no other defense. On this motion, they contend that the charter of the City of Wheeling enacted by the legislature in 1915, gave the authority to the council of said city to enact the ordinance complained of here, and quote from the charter, sec. 23. We do not deem it necessary to go into the powers granted the city by its charter for however broad the charter is and whatever power it may give the council to pass the ordinance in question, is it void under sec. 88 of ch. 43 of the code and sec. 101 of said chapter? The ordinance was passed by the council of the City of Wheeling on the 14th day of March, 1922. That portion of sec. 88 of ch. 43 which bears upon the question here under consideration, is as follows:

"No person shall drive or operate any vehicle, motor driven or otherwise, upon any public road or street of this state, when intoxicated or under the influence of liquor, drugs or narcotics; and anyone violating this provision shall be guilty of a misdemeanor, and upon conviction thereof shall be punished with a fine of not less than twenty-five dollars, nor more than one hundred dllars and shall be confined in the county jail not less than sixty days nor more than six months for the first offense; and for a second offense he shall be deemed guilty of a felony, and upon conviction thereof shall be confined in the penitentiary not less than one nor more than three years."

Chapter 43 of the code went into effect on the 22nd of April, 1921. Respondent contends that sec, 148 of said chapter grants to the City of Wheeling the power to pass the ordinance in question, that section is as follows:

"Nothing...