Thompson v. Smith

• Decision Date: 12 September 1930
• Citation: 154 S.E. 579
• Parties: THOMPSON. v. SMITH, Chief of Police.
• Court: Virginia Supreme Court

154 S.E. 579

THOMPSON.

v.SMITH, Chief of Police.

Supreme Court of Appeals of Virginia.

Sept. 12, 1930.

The ordinance provided that a permit granted thereunder should be perpetual unless revoked as provided "in this chapter, " but there was no provision made in such chapter for revocation thereof. Permittee contended that his permit which had been issued prior to the amendment could not be revoked under the amendment.

The issuance and revocation of such permit by a city is merely an exerciseof the police power of the state to regulate the use of public highways in the interest of public safety and welfare, delegated to the city. Const. 1902, § 159, provides that "the exercise of the police power of the state shall never be abridged."

In acting upon the application for reinstatement, the judge of the municipal court is acting in an administrative capacity and his discretionary power is the same as that of the chief of police, except that the exercise of his discretion may supersede that of the chief of police.

The right of a citizen so to do is that which he has under his right to enjoy life and liberty, to acquire and possess property, and to pursue happiness and safety.

Such permits may not be arbitrarily refused or revoked or permitted to be held by some and refused to others of like qualifications, under like circumstances and conditions.

The term "unfit to drive an automobile on the streets of the city, " as used in the ordinance, is clearly intended to extend beyond what can be said the technical knowledge or the sense and experience of men have rendered reasonably certain. That portion of the ordinance authorizing the chief of police to revoke the permit of any driver who, "in his opinion, " becomes unfit to drive an automobile on the streets of the city, fails to declare the policy of the law and fix the legal principles which are to control the discretion of the chief of police in the revocation of licenses in determining what constitutes unfitness to drive an automobile on the city streets; and is void because delegating powers essentially legislative to an administrative officer.

[Ed. Note. —For other definitions of "Unfit, " see Words and Phrases.]

A court of equity has not jurisdiction to enjoin acts simply because they are at-tempted or threatened under color of an unconstitutional or void statute or ordinance. Further circumstances must be shown which bring the case within some recognized ground of equity jurisdiction.

By "irreparable injury" is meant an injury of such a nature that fair and reasonable redress may not be had in a court of law and that to refuse the injunction would be a denial of justice.

[Ed. Note. —For other definitions of "Irreparable Injury, " see Words and Phrases.]

The only remedies at law of the permittee were either to proceed by petition for mandamus to compel the police chief to restore his permit, or to wait until arrested upon the charge of driving without a permit and interpose the defense that the provision was void. Neither of these remedies was as complete and adequate as a suit for injunction to protect complainant against wrongful interference. The bill alleged that complainant "will sustain irreparable injury in his pursuance of happiness and in acquiring and the use of his property."

Appeal from Corporation Court of Lynchburg.

Bill by W. L. Thompson against D. C. Smith, Chief of Police of the City of Lynchburg. From a decree dismissing the bill upon demurrer, plaintiff appeals.

Reversed and remanded.

A. S. Hester, of Lynchburg, for appellant

T. G. Hobbs, of Lynchburg, for appellee.

EPES, J.

W. L. Thompson appeals from a decree entered on March 15, 1929, by the corporation court of the city of Lynchburg dismissing upon demurrer a bill in chancery filed by him against D. C. Smith, chief of police of said city, in which he prays that said chief of police be enjoined from interfering with his operation of his private passenger automobile on the streets of Lynchburg, and that the chief of police be compelled to restore to him his permit to operate a private automobile on said streets, which permit it is alleged the chief of police has revoked, acting under the italicized provision of subsection c of section 134 of the General Ordinances of the City of Lynchburg below quoted.

Section 134 of the General Ordinances of the City of Lynchburg, as amended by au ordinance adopted September 22, 1925, reads as follows:

"(a) It shall be unlawful for any person (other than transients remaining in the city not exceeding seven days) to drive or operate any motor vehicle upon the streets of the city until a permit so to do has been issued to such person by the chief of police.

"(b) Any person desiring to secure such permit shall apply in person therefor to the chief of police, who shall cause such applicant to be carefully examined as to his or her ability to safely and properly operate motor vehicles upon the streets of the city, and as to his or her knowledge of the traffic laws of the state of Virginia and City of Lynchburg. And no permit shall be issued to such person unless such examination shall disclose that he or she possesses such ability and knowledge as, in the judgment of the chief of police, qualifies such person to receive such permit. And in no event shall any such permit be issued to any person under the age of sixteen years. * * *

"(c) The person to whom such permit shall be issued, shall pay a fee of $1.00 therefor; and such permit shall always be carried by such person while operating any motor vehicle upon the streets of the city and shall be presented by such person to any police officer upon request. Such permit shall be perpetual unless revoked as provided in this chapter. Conviction of a felony, or of violating the prohibition law, shall revoke such permit for a period of twelve months and conviction of the violations of the traffic laws three times within one year shall revoke such permit for such time as the judge of the Municipal Court may direct, not to exceed one year. The Chief of Police is authorized and directed to revoke the permit of any driver who, in his opinion, becomes unfit to drive an automobile on the streets of the city, with the right to the holder of such permit to apply to the judge of the Municipal Court to have his permit reinstated."

Prior to said amendment of September 28, 1925, section 134 read just as it now does, except that it did not contain the last two sen-tences of subsection c, which were added by said amendment.

After setting forth the said ordinance, the amendment thereof, and that Thompson had been issued the permit revoked by the chief of police prior to September 28, 1925, the bill alleges the following facts:

When said permit was issued to him, Thompson then possessed, and has always since possessed, all the requirements, ability, and knowledge required by said ordinance as a prerequisite to the issuance of a permit to drive an automobile on the streets of Lynchburg. Thompson is the owner of the automobile which he was driving at the time his permit was revoked, and had been driving an automobile on the streets of Lynchburg for more than ten years without any complaint having been made as to his ability to drive an automobile safely and properly. He has not become in any way incapable of driving an automobile since his permit was granted. He has not been convicted of any offense for the conviction of which said ordinance authorizes the revocation of his permit.

The circumstances of the revocation of Thompson's permit were these:

Prior to the revocation of his permit he had been twice convicted before the judge of the municipal court of the city of Lynchburg of speeding on the city streets, and on each conviction was fined $50. He did not appear to make any defense on either occasion. On the second trial the judge of the municipal court at first ordered Thompson's permit revoked; but, when it was brought to his attention that the ordinance authorized him to revoke a permit for a conviction of violating the traffic laws only when the defendant has been convicted three times within one year, he so modified his judgment as to omit the revocation of the permit.

Thompson continued to drive his car in the city of Lynchburg for some time after said second conviction without any interference from the police; but in November, 1928, he was summoned to appear before the judge of the municipal court on the charge of driving a car without a permit. When the case was heard Thompson claimed to have a permit, and testified he had not received any notice from any one that his permit had been revoked. The chief of police testified that he had written Thompson that his permit had been revoked, but that he did not know whether Thompson had gotten the notice or not.

The judge of the municipal court held that Thompson could not be convicted on this testimony of driving without a license or permit; but instructed the chief of police to notify him there and then that his permit was revoked. The chief of police then and there in open court notified Thompson that his permit was revoked; but no reason was given at the time for the revocation of his permit by either the judge of the municipal court or by the chief of police.

The bill charges that the chief of police in revoking this permit acted under the italicized provision of subsection c of section 134 of the General Ordinances, as amended, hereinbefore quoted; and that the chief of police was without authority to revoke said permit for the following reasons:

(1) Thompson had acquired a vested right in his permit prior to the time the ordinance was amended so as to provide for the revocation of permits; and, if this amendment is intended to apply to permits granted before it was adopted, it is void, because it violates section 58 of the Constitution of Virginia which prohibits the passage of ex post facto laws or laws impairing the obligation of contracts.

(2) The provision...