State v. Godfrey

• Decision Date: 14 November 1903
• Parties: STATE ex rel. MORLEY v. GODFREY, Mayor. STATE ex rel. ATKINSON v. SAME.
• Court: West Virginia Supreme Court

46 S.E. 185

54 W.Va. 54

STATE ex rel. MORLEY v. GODFREY, Mayor.

STATE ex rel. ATKINSON v. SAME.

Supreme Court of Appeals of West Virginia.

November 14, 1903

Submitted September 2, 1903

Syllabus by the Court.

1. Chapter 151 of the Code of 1899 fully covers and includes gaming and gaming devices, so far as the Legislature deemed it expedient to legislate upon the subject. It specifically defines what shall be offenses thereunder, and fixes fines and penalties for violations thereof.

2. Unless the charter of a city, town, or village confers upon it authority so to do, the council thereof has no right or power to pass an ordinance to regulate or prohibit gaming or gaming devices, or to prescribe and enforce penalties for a violation of such ordinance.

3. Held, that the ordinance passed by the council of the town of Bramwell on the 6th day of July, 1903, is unauthorized and void.

Applications by the state, on the relation of J. E. Morley, and on the relation of E. W. Atkinson, for writs of prohibition to A. I Godfrey, mayor of the town of Bramwell. Writs granted.

Brannon J., dissenting.

H. A Ritz and J. M. McGrath, for petitioners. J. F. Engle and F W. Brown, for respondent.

MILLER J.

The town of Bramwell, in the county of Mercer, is a municipal corporation, chartered as such by the circuit court of that county, under the provisions of chapter 47 of the Code of West Virginia of 1899, and has no other charter. The respondent, A. I. Godfrey, is the mayor thereof, duly elected, qualified, and acting as such. On the 16th day of July, 1903, the council of said town made and passed an ordinance, with a preamble, in the words and figures following:

"Whereas, certain persons have, within the corporate limits of the town of Bramwell, openly engaged in gambling by operating a money-making device, known as 'Slot Machine,' to the manifest corrupting of the morals of the citizens of the said town: Now, therefore:

Section 1. Be it ordained by the council of the town of Bramwell, that any person or persons, who shall keep or exhibit any gaming table, faro bank or keno table, or any slot machine or any table or machine of like kind, under any denomination, whether the game be played with cards, dice or otherwise, or shall be concerned in interest in keeping or exhibiting such table, bank or machine, shall be fined not less than $100.00.

Sec. 2. A second conviction for the offense named in the first section of this ordinance shall be punished by a fine of not less than $100.00 and imprisonment in the town jail not exceeding 30 days.

Sec. 3. Any person who shall play upon any table or machine mentioned in the first section of this ordinance and thereby either wins or loses any sum of money shall be fined not less than $10.00."

It further appears from the record that, at the time and since the passage of said ordinance, petitioner Morley was the proprietor of a hotel in Bramwell; that there was in the waiting room or lobby of that hotel a slot machine, upon which people were allowed to play; that said machine did not belong to Morley, but to petitioner Atkinson; and that Morley had permitted Atkinson to place the same in the hotel. On the 9th day of July, 1903, a warrant was issued by said A. I. Godfrey, as mayor of said town of Bramwell, against petitioner J. E. Morley upon the charge of keeping and exhibiting the said slot machine in violation of the provisions of said ordinance, and also a warrant against petitioner E. W. Atkinson upon the charge of playing upon said machine. Petitioners were arrested upon the warrants issued against them, respectively, as aforesaid, and taken before Godfrey, as mayor, and each required to enter into a recognizance to appear before said mayor at a time fixed to answer the aforesaid charges. Petitioners then presented their respective petitions to Hon. Joseph M. Sanders, judge of the circuit court of Mercer county, praying that writs of prohibition might issue to prohibit the said A. I. Godfrey, mayor as aforesaid, from trying petitioners upon said warrants for the alleged offenses therein charged. The writs prayed for were denied by said circuit judge, but upon presentation of similar petitions to a judge of this court a rule was awarded upon each petition against Godfrey, as mayor of the town of Bramwell, requiring him to show cause, if any he can, why writs of prohibition shall not issue against him as prayed for. The same question being involved in both cases, they are considered and disposed of together.

Petitioners allege that said ordinance is invalid; that the council of the town of Bramwell had and has no authority to pass such ordinance; that the warrants issued by said mayor as aforesaid thereunder were and are without legal authority, and are therefore void. They further contend that the subject of gambling and gambling devices is fully covered by state law, and that, the Legislature not having granted power to such municipal corporations to regulate it, the town is without authority to do so. Respondent, Godfrey, moves the court to quash the rule, and urges, in support of his motion, that the ordinance in question is authorized by a clause of section 28 of chapter 47 of the Code of 1899, by which it is required of the council of a city, town, or village to protect the persons and property of the citizens of such city, town, or village, and to preserve peace and good order therein. The cases of Moundsville v. Fountain, 27 W.Va. 182, Jelly v. Dils, 27 W.Va. 267, and Judy v. Lashley, 50 W.Va. 628, 41 S.E. 197, 57 L.R.A. 413, are cited by him.

In the two cases first mentioned, the question of the right of the towns of Moundsville and Parkersburg to require license under their respective charters from persons to sell spirituous liquors therein, and to punish offenders for unlawful sales, was determined in favor of the cities. In referring to those cases, Judge Poffenbarger, in Judy v. Lashley, 50 W.Va. 628, 634, 41 S.E. 197, 200, 57 L.R.A. 413, says: "This position must not be confounded with the position announced in Moundsville v. Fountain, 27 W.Va. 182, and Jelly v. Dils, 27 W.Va. 267, holding that municipal corporations may punish for unlawful retailing of spirituous liquors, etc. The statute expressly gives power to such corporations to impose license taxes upon the privilege of making such sales, from which it results that the council must have power to enforce its regulations. That is a very different matter from the case under consideration." Those cases do not apply to the cases now before us.

Chapter 151 of the Code of 1899 devotes 12 sections to the offenses of gaming, lotteries, and lottery tickets. It defines the several prohibited acts, and fixes the respective fines and punishments for violations thereof. This chapter seems to legislate upon and fully cover the whole subject mentioned in its title. The Legislature having thus legislated, has the town of Bramwell power to make and pass the ordinance in question? Points 1 and 2 of the syllabus in Judy v. Lashley, supra, hold:

"The police power of a municipal corporation depends upon the will of the Legislature, and a city, town, or village can only exercise such police power as is fairly included in the grant of powers by its charter.

Section 28 of chapter 47 of the Code [of 1899], by vesting in the councils of municipal corporations power and duty 'to protect the persons and property of the citizens of such city, town, or village, and to preserve peace and good order therein,' does not confer power to punish acts made criminal by the state law and fully covered thereby, except such as would be attended with circumstances of aggravation not included in the state law. Such power must be specifically and expressly given by the Legislature before it can be exercised by such corporation."

Said section 28 enumerates certain powers conferred upon the council. Section 29 further provides that, "to carry into effect these enumerated powers, and all others conferred upon such city, town or village, or its council, by this chapter or by any further act of the Legislature of this state, the council shall have power to make and pass all needful orders, by-laws, ordinances, resolutions, rules and regulations, not contrary to the Constitution and laws of this state; and to prescribe, impose and enact reasonable fines, penalties and imprisonments in the county jail or the place of imprisonment in said corporation, if there be one, for a term not exceeding thirty days, for a violation thereof. Such fines, penalties and imprisonments shall be recovered, and enforced under the judgment of the mayor of such city, town or village, or the person lawfully exercising his functions." There is no specific authority conferred by our statute upon cities, towns, or villages to regulate gaming or gaming devices.

In Gas Co. v. Parkersburg, 30 W.Va. 439, 4 S.E. 652 this court said: "It is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers, and no others: First, those granted in express words; second, those necessarily and fairly implied in or incident to the powers expressly granted; third, those essential to the declared objects and purposes of the corporation, not simply convenient, but indispensable. Any fair, reasonable doubt concerning the existence of power is resolved by the courts against the corporation, and the power is denied. Of every municipal corporation the charter or statute by which it is created is its organic act. Neither the corporation nor its officers can do any act, or make any contract, or incur any liability, not authorized thereby. All acts beyond the scope of the powers granted are void. Much less can any power be exercised, or...