Thompson v. Smith

• Decision Date: 12 September 1930
• Parties: W. L. THOMPSON v. D. C. SMITH, CHIEF OF POLICE.
• Court: Virginia Supreme Court

Page 367

155 Va. 367

W. L. THOMPSON v. D. C. SMITH, CHIEF OF POLICE.

Supreme Court of Virginia, Staunton.

September 12, 1930.

Absent, Campbell and Holt, JJ.

1. AUTOMOBILES — Permits — Perpetual Permit — Revocation — City's Right to Regulate Use of Streets a Continuing Power. — An ordinance providing for the granting of permits to automobile drivers provided that the permit should "be perpetual unless revoked as provided in this chapter." No provision was made in the chapter for revocation of the permits; therefore, it was contended that the city could not thereafter by amendment of the ordinance provide for revocation of the permits. But the power of a city to control and regulate the use of its streets is a continuing power to be exercised as often and whenever the city may think proper; therefore, there is no merit in this contention.

2. AUTOMOBILES — Permits — Exercise of Police Power not to be Abridged. — The issuance and revocation of permits to automobile drivers by a city is merely a means of exercising the police power of the State delegated to the city to regulate the use of the public highways in the interest of the public safety and welfare. The Constitution of Virginia, section 159, expressly provides that "the exercise of the police power of the State shall never be abridged." Consequently, although the ordinance under which a permit is issued states that it shall be perpetual, by amendment or later ordinance the city may provide for the revocation of the permit.

3. AUTOMOBILES — Permit to Drive Automobile — Municipal Ordinance Providing for Revocation of Permit — Judge of Municipal Court Acts as Administrative Officer as to Reinstatement of Permit. — A city ordinance authorized the chief of police to revoke the permit of any driver who, in his opinion, becomes unfit to drive, but further provided that the holder might apply to the judge of the municipal court to have his permit reinstated. When acting upon an application for the reinstatement of a permit revoked by the chief of police, the judge of the municipal court is acting as an administrative officer, and not in a judicial 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.

4. AUTOMOBILES — Permit to Drive Automobile — Municipal Ordinance Providing for Revocation of Permit — Judge of Municipal Court Acts as Administrative Officer as to Reinstatement of Permit — Right of Application for Reinstatement not Adequate Remedy at Law. — If the provision of an ordinance authorizing the chief of police to revoke a driver's permit, when he deems the driver unfit to drive, is void, because it is a delegation of legislative power to an administrative office and vests the chief of police with an arbitrary discretion, the provision of the same ordinance authorizing the exercise of the same discretion by the judge of the municipal court upon an application for reinstatement of the permit is also void; and the provision of the ordinance that the person whose permit has been revoked by the chief of police may apply to the judge of the municipal court for reinstatement cannot constitute an adequate remedy at law.

5. STREETS AND HIGHWAYS — Right of Citizen of Travel and Transport Property — Use of Ordinary Vehicles. — The right of a citizen to travel upon the public highways and to transport his property thereon in the ordinary course of life and business is a common right which he has under his right to enjoy life and liberty, to acquire and possess property, and to pursue happiness and safety. It includes the right in so doing to use the ordinary and usual conveyances of the day. This right is not a mere privilege which a city may permit or prohibit at will.

6. STREETS AND HIGHWAYS — Right of Citizen to Travel and Transport Property — Use of Ordinary Vehicles — Police Power. — The right of a citizen to travel and transport property and to use the ordinary and usual conveyances of the day may, under the police power, be regulated by the city in the interest of public safety and welfare; but the city may not arbitrarily or unreasonably prohibit or restrict it, nor may it permit one to exercise it and refuse to permit another of like qualifications, under like conditions and circumstances, to exercise it.

7. AUTOMOBILES — Drivers' Permits — Arbitrary Revocation. — The regulation of the exercise of the right to drive a private automobile on the streets of the city may be accomplished in part by the city by granting, refusing, and revoking under rules of general application permits to drive an automobile on its streets; but 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.

8. AUTOMOBILES — Exercise of Right to Drive — Granting and Revoking Permits — Arbitrary Discretion. — The doctrine that when the State or city had the power to prohibit the doing of an act altogether, it has the power to permit the doing of the act under any condition, or subject to any regulation, however arbitrary, has no application to a permit issued for the purpose of regulating the exercise of the common right to operate a private automobile on the streets of a city.

9. PUBLIC OFFICERS — Powers of Administrative Officers — Legislation by Administrative Officers. — It is a fundamental principle of our system of government that the rights of men are to be determined by the law itself, and not by the let or leave of administrative officers or bureaus. It is the prerogative of the legislative branch of the government to determine and declare what the law shall be, and the legislative branch may not delegate this function to executive or administrative officers.

10. PUBLIC OFFICERS — Powers of Administrative Officers — Discretion of Administrative Officers. — The principle that the rights of men are to be determined by the law itself and not by administrative officers does not mean, however, that no discretion can be left to administrative officers in administering the law. Government could not be efficiently carried on if something could not be left to the judgment and discretion of administrative officers to accomplish in detail what is authorized or required by law in general terms. This is particularly true where the discretion to be exercised relates to police regulations. But the reasonable discretion which may be vested in city administrative officers is limited to a discretion in its essence ministerial and not legislative, though it may be such as may be exercised by the legislature.

11. PUBLIC OFFICERS — Discretion of Administrative Officers — Delegation of Legislative Power — Test. — The legislature must declare the policy of the law and fix the legal principles which are to control in given cases; but an administrative body may be invested with the power to ascertain the facts and conditions to which the policy and principles apply.

12. PUBLIC OFFICERS — Discretion of Administrative Officers — Delegation of Legislative Power — Details Ministerial. — Mere matters of detail within the policy and the legal principles and standards established by the statute or ordinance may properly be left to administrative discretion; for the determination of such matters of detail is more essentially ministerial than legislative.

13. AUTOMOBILES — Permits to Drive — Chief of Police to Grant Permits — Validity of Ordinance — Discretion of Chief of Police Ministerial or Legislative. — Where an ordinance provides that no permit shall be issued to an applicant unless his examination by the chief of police discloses that he possesses such ability and knowledge to safely operate an automobile as in the judgment of the chief of police qualifies the applicant to receive such permit, the discretion vested in the chief of police is essentially ministerial and not legislative.

14. AUTOMOBILES — Permits to Drive — Revocation of Permit — Grounds for Revocation — Unfit to Drive. — An ordinance, after specifying a number of causes for which the permit of a driver might be revoked by the chief of police, further authorized and directed 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," with the right to the holder of the permit to apply to the judge of the municipal court to have it reinstated.

Held: That this provision of the ordinance as to revocation where a driver is deemed "unfit" failed to declare the policy of the law and fix the legal principles which are to control the discretion of the chief of police and is void as a delegation of legislative powers to an administrative officer.

15. ORDINANCES — Delegation of Legislative Powers to Administrative Officer — Ordinance may Use General Terms — Revocation of Permit of Driver when Driver is Deemed Unfit to Drive. — An ordinance may use general terms in defining the declared policy of the law and in fixing the legal principles which are to control the discretion of administrative officers in administering the law, where the technical knowledge or sense and experience of men render the terms reasonably certain, but this has no application to an ordinance permitting the revocation of a permit to drive an automobile by the chief of police, when in his opinion the driver becomes unfit to drive.

16. AUTOMOBILES — Permits — Revocation for Matters Unrelated to the Use of the Highway. — While a city, in the exercise of its police power, may revoke driving permits for some cause unrelated to the use of the public highways and the safety of persons and property thereon, it must do so by legislative enactment and not by administrative edict. $17. STREETS AND HIGHWAYS — Right to Use the Public Highways — Whether Property Right. — Whether a right to use the public highways for the ordinary and usual purposes of life be a...