Thompson v. Smith 154 S.E. 579, 155 Va. 367 (VA 1930)
Thompson v. Smith 154 S.E. 579, 155 Va. 367 (VA 1930)
Thompson v. Smith 154 S.E. 579, 155 Va. 367 (VA 1930)
712
W. L. THOMPSON
v.
!56[4 367
IN THE
RICH~tOND.
W. L. THOMPSON
vs.
V. C.
S~fiTH,
TH.I~
CITY OF
LYNCHBURG.
S~upreme
Court of .Appeals
W. L. Thompson v. D. C. Smith.
-----
---~---~~----
--
-~-----------
-~--~-
- - - -
----~-~
~ision
~11 A.
W. L. Thompson v. D. C. Smith.
'
The syllallus of. Coal & Coke Ry. Co. v. Conley, 67 S. E.,
at page 614, contains the following: "Nor is it material that
the officer's color of authority for the enforcement of the
act is found, not in it, but in the common law or some other
statute. That he has some connection 'vith the enforcement
of the act is the important and material fact, whatever its
source or origin may be. (Ed. Note-For other cases, see
Injunction, Dec. Dig., Sect. 85*.)
(10) Injunction (Sect. 85*.) Jurisdiction-Enforcement uf
Void Act.
Unconstitutionality of the act is not alone sufficient to confer jurisdiction of such a suit or proceeding in equity. To
this there may be added for such purpose, some right or injury, respecting the persons or property, not adequately
I'emediable by any proceeding at law.
(Ed. Note.-For other cases, see Injunction, Cent. Dig.,
Sect. 156 Dec. Dig., Sect. 85*.)
(11) Injunction (Sect. 105* )-Jurisdiction-Enjoining
Criminal Proceedings.
vVhen the two g-rounds for relief, just mentioned, exist,
the remedy in equity is not precluded, though it involves re~
str.aint, by injunction, of a criminal proceeding.
(Ed. N ote.-For other cases, see Injunction, Cent. D1g.,
Sect. 179; Dec. Dig. Sect. 105*.)
(12) Injunction ES'ect. 105*)-Enforccment of Unconstitu. ti onal Act-Restraint of Criminal Proceeding.
Under such circumstances, restraint of a criminal proceeding is merely incidental to adequate protection of a personal
ur property right, and is not founded upon the mere illegality
of such proceeding. Its chief object being the maintenance
and protection of such right, the bill is not only merely to enjoin such a proceeding..
W. L. Thompson v. D. C. Smith.
an
W. L. Thompson v. D. C. Smith.
"In England, says Judge Dillon, the subject upon which byJaws may be made were not usually specified in the king's
charter, and it became -an established doctrine of the courts
that every corporation had the implied or incidental right to
10
pass by-laws; but this power was not accompanied with these
limitations, namely; that every by-law must be reasonable, not
inconsistent with the charter of ~he corporation, nor with any
statute of parliament, nor with the general principles of the
common law of the land, particularly those having relation to
. the liberty of the subject or the rights of private property."
On page 963, this same Judge said: ''The books a.bound
in instances or ordinances adjudged to be void :or unreasonableness; as for example, because in restraint of trade, or
oppressive, or in derogation of the rights of the people, or
in contravention of the objects of the corporation, or the general law or policy of the state.''
That judge cites cases to illustrate as will be seen from
opinion.
On page 961, Judge Lewis gave as the law where there was
a doubt of the authority to make the by-law it must be decided
in favor of the people.
In the case of the City of Richnwnd v. Jl od el Steant Laundry Co1n1Jany, 69 S. E. 932, that case is a full discussion of the
question now before the court. Judge Whittle, on page 932,
said:
''Careful consideration of the condemned ordinance shows
tlwt it prescribes no fixed rules for the conduct of the business
with which it undertakes to deal, applicable alike to all citizens who may bring themselv~s within its terms; but every
person desiring to engage in such occupations must first obtain a permit from the city council, whose powers are undefined and absolute; and in default thereof shall be deemed
guilty of a misdemeanor. The ordinance prescribes no conditions upon which the permit may be granted, and furnishes
no rules by which au impartial exercise of the power vested
h1 the council may be secured. Tl1e discretion of that body is
in no way regulated or controlled, and is purely arbitrary.
W. L. Thompson v. D. C. Smith.
11
12
~.: ....
W. L. Thompson v. D. C. Smith.
13
14
W. L. Thompson v. D. C. Smith.
15
The inequality and ununiformity of the requiring of permits to users of the streets for private business, or pleasure, by driving cars thereon presents a serious question for,
in our form of government, all stand, or should stand equal
before the law, and entitled to its equal protection, and any
exaction which savers ,of ununiformrty alld inequa1ity at
once awakens attention. It is submitted that an ordinance
requiring an arbitrary granting or refusing applicants permits to drive tlieir cars on the. streets of Lynchburg for pleasure, by the Chief of Police, is void, as the same is not uniform or equal between the different classes who use such
streets. This ordinance is inconsistent with the laws of the
state as it places a burden on the pleasure owners of cars
living in Lynchburg that is not put on those who live in other
parts of the state. The state does not require such owners
to get permits to run cars on her highways. It will be observed that cars can be driven on the streets by persons who
live outside of the city limits \vithout restraint, although they
may not know ho\V a car should be driven, or know the
traffic laws of such city, or even of the state. In other
words a man may apply for a permit and the Chief of Police
may refuse to grant it and the applicant can move just across
the corporate line into Campbell, Bedford or Amherst
County and use the streets in the same way he would have
used them if the permit had been .granted without violating
any la\v. This is true although the applicant only moved a
hundred yards from his former home. It is also true that
a person may be refused a permit by the Chief of Police
but he can under the law of the state drive his car from the
'corporate limit anywhere he pleases \vithin the state witho~t
hinderance. Such a condition should not be allowed to exist. The streets of Lynchburg are state hig-hways and the
citizens of the state possess an inherent right to use them at
will without regard as to whether they live in the City of
Lynchburg or elsewhere in the state and therefore an ordi. nance requiring permits from the owners of cars living in
the City of Lynchburg is void. Sub-section 15 of Section 5
of the Code of Virginia contains the following, to-:wit:
"Where the council or authorities of any city or town, or any
16
"
W. L. Thompson v. D. C. Smith.
17
''Streets, etc., of cities and towns not to be used for certain purposes, without previous consent of corporate authorities.-N o street railway, gas, "\Vater, steam or electric
heating, electric light or power, cold storage, compressed
air, viaduct, conduit, telephone or bridge company, nor any
corporation, association, person, or partnership engaged in
these or like enterprises, shall be permitted to use the streets,
alleys, or public grounds of a city or town, without the
previous consent of the corporate authorities of such city
or town.''
It will be observed that the rule of construction on such
statutes excludes everything not mentioned in th estatute.
Section 2125 of the Code of Virginia contains the following:
"It shall be unlawful for any person or persons * * * except in accordance with the provisions of chapter ninety of
the Code of Virginia 1919, and the amendments thereto, to
use, drive or operate any automobile, . .: * * on, along or
.across any public road, street, alley, highway, avenue, or
turnpike of any county, city, town or village in the state."
.Section 2126 requires license for the automobile; Section
2127 gives the form of such license; Section 2128 is about
the license of manufacturer, &c. Section 2129. of the Code
of Virginia contains the following: ''Any person, other
than the owner of a machine "\vhich has been registered and
licensed to be operated in this "State, who shall operate machines for pay, before he shall operate a machine in tl1is
State shall first take out a chauffeur's license to operate
machines in this State."
From these sections of the Code it clearly nppcars that
the ordinance is inconsistent 'vith the state law and therefore void. If it should appear from the ordinance and laws
of Virginia that the petitioner could be required to get a
18
W. L. Thompson v. D. C. Smith.
19
'
It will be observed that case 'vas bronght to enjoin the commissioner, as this one, as will appear from the following:
''Petition for a writ of certiorari to review a judgment of
the Superior Court for Pierce County denying relator relief
in an action by him against the Commissioner of Public
Safety, to enjoin interference with his business. Ueversed."
The opinion of the court in that case and the authorities
cited show the injunction should have been awarded petitioner
restraining D. C. Smith, Chief of Polic,~, from iutetfaring
'vith petitioner driving his car, as the ordinance ,,as invalid.
In Bu.cha17tanv. TVarley, 62 U . .S. (L. '}jd.), at pnge 161, J\.Ir.
Justice Day, speaking for the court, said: '' 'J'he 14th Amendment protects life, liherty, and property from invasion by
the states without due process of law. Property is more than
the mere thing which a person owns. It is elementary that
it includes the right to acquire, use, aud uispose of it. 'rhe
Constitution protects these essentiall attributes of property.
* * * Property consists of the fl'ee use, enjoyment, and disposal of a person's ac.quisitiong without control or diminution save by the law of the land.''
There is another reason why the ordinance did not authorize the taking of petitioner's permit. This permit was
gotten before the amendment authorizing th~ Chief of Police
to revoke such permits. The privilege of driving a. car on
the streets of Lynchburg was a vested right in the petitioner
to use his property by driving his car on the streets of Lynch
burg without any interference by the officers.
In the case of TVhitlock v. H awkin.s, 53 S. E., at page 403,
Judge J(eith, speaking f.or the court, said: ''Courts do not
look with favor upon retroactive and retrospective laws, and
a statute is always to be construed as operating prospectively,
unless a contrary intent is manifesL But it cannot be denied
that the Legislature may, in its wisdom, pass retrospective
'
20
W. L. THOMPSON.
.
By A. S. HESTER,
His Attorney.
H. S. J.
Appeal allowed. Bond $300.00.
PRESTON \V.
CA~!PBELL.
JI. S. J.
W: L. ~hompso!lv. :Q .. C. _Smith.
21
VLRGINIA~
.
Be it remembered that heretofore, to-wit, on the. 13th clay
of December, 1928, the. following de.c.ree was entered by said
court in the chancery suit of W. L. Thompson, plaintiff, vs.
D. C. Smith, Chief of Police of the City of Lynchburg, defendant, to-wit:
.
On motion of W. L. Thompson, by counsel, and on notice
to the defendant, leave is given the said plaintiff to file his
bill, and said bill is filed accordingly.
.
And on motion of the defendant, by counsel, leave is given
him to file his demurrer to said bill, and the said demurrer
is :filed accordingly, and the case is ordered to be docketed.
The plaintif{'s bill and the defendant's demurrer thereto,
referred to in the foregoing decree, are in the words and fig
ures following, to-wit:
page 2 ~
BILL.
To the Honorable ll"rank P. Christian, J uclge o the Corporation Court for the City of Lynchburg, Va.:
Your complainant, W. L. Thompson, respectfully repre.
sents.:
That the Council for the City of Lynchburg enacted ordinance, S'ection 134 of the City Code, which ordinance is in
these words :
(a) "It shall be unla,vful 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 ~olice, who s~all cause
such applicant to be carefully examined as to his or her
22
W. L. Thompson v. D. C. Smith.
23
24
no-
W. L. Thompson v. D. C. Smith.
25
26
pag-e 7
'
any way with your complainant operating his au- 1
tomobile, or motor vehicle, on the streets of Lynchburg; and ;
that he be compelled to restore to your complainant his per-/
mit to operate or drive motor vehicles in the City of Lynchburg; that the ordinance be construed and that the amendment made on the 28th day of September, "1925, authorizing
the said Chief of Police to revoke permits to drive automobiles be. declared invalid and of no binding force as to your
complainant; and 'that your complainant may have all such
further, and other, and general relief in the premises as the
nature of his ca~e may require, or to equity shall seem meet.
W. L.
THO~IPSON.
By .A. S. HESTER,
His Atty.
(Notary certificate
omitte~
in this transcript.)
DEMURRER.
The said defendant says that the bill in this canse is not
sufficient in law, and states the ground of demurrer relied on
to be as follows:
\
The bill on its face shows tl1at the plaintiff has a remedy
nt law to ha.ve his rights in this case determined in that the
ordinance set forth in said bill provides that the plaintiff shall
have the right to apply to the judge of the Municipal Court to
l1ave his permit re-instated and that the said plaintiff has
failed to exercise this legal right, and cannot apply for an injunction until he has exhausted his legal remedy.
T. G. HOBBS, P. D.
page 8
And now at this day, to-wit: At Lynchburg Corporation Court, 1viarch 15th, 1929, the day and year
first hereinbefore mentioned.
W. L. Thompson v. D. C. Smith.
27
Apri~,
1929.
INDEX
Page.
l?etitio11 .
........................................ 1
l~ecord ............................................ 21
Bill . . . . ........................................... 21
Demurrer. . . . ...................................... 26
Decree . .. . . ....... : ................................ 27-26
Oerti.ficate .......................................... 27