State v. Robinson
Decision Date | 23 November 1920 |
Docket Number | 4202. |
Parties | STATE EX REL. CONSTANZO v. ROBINSON, JUDGE. |
Court | West Virginia Supreme Court |
Submitted October 26, 1920.
Syllabus by the Court.
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-enacted by chapter 66, Acts 1917, known as the good roads law, are void and unenforceable by criminal or other legal proceedings.
When the general law of the state has so dealt comprehensively 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.
Prohibition by the State, on the relation of Frank Constanzo, against Hon. Alan H. Robinson, Judge, etc. Writ of prohibition awarded.
George A. Blackford, Tom B. Foulk, and J. M. Ritz, all of Wheeling for relator.
J. J P. O'Brien, of Wheeling, for respondent.
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an ordinance of said city, passed April 6, 1920, relating to traffic on streets, alleys and highways of said city, but repealed or revoked, without savings or reservations respecting pending prosecutions, by an ordinance passed July 13, 1920, in so far as the same or any part thereof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:
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 be 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-wit, 5,200 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 184 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.
Section 4 of the act, defining public road or highway, among other things says:
It is contended that this last clause of section 185 saves the ordinance in question as ordained under section 23 of the greater 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 city 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 43, 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 21 says:
"The county court of each county shall establish two or more main thoroughfares, highways or roads through said county, at least one of which roads shall pass through or connect with the county seat, and such roads shall be known as 'main county roads,' and shall be constructed and maintained in each county by taxation upon all the taxable property of the county, and by apportionments from the federal aid and state road fund."
Section 25 says:
"There is hereby created a 'state road fund' which shall consist of the net proceeds of all state license taxes imposed and...
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