Bryan v. Commonwealth , 126 Va. 749 ( 1919 )

Whittle, P.,

delivered the opinion of the court.

This case is as follows: Plaintiff in error, Henry C. Bryan, was tried and convicted upon a warrant issued by the mayor of the city of Harrisonburg, charging that he did on August 6, 1918, unlawfully, transport intoxicating liquor along one of the streets in that city, of which of-, fense he was found guilty and adjudged to pay a fine of $50.00 and to be confined in jail for one month. At the October term, 1918, of the Circuit Court of Rockingham county plaintiff in error was indicted for the same offense, and pleaded to the indictment former conviction and not guilty. The court overruled and rejected the first mentioned plea; and the case, by consent, having been submitted to the court was tried without the intervention of a jury, and the Commonwealth having sustained the charge and no evidence being offered by the accused he was found guilty and his punishment fixed at a fine of $50 and confinement in jail for the term of one month. . To that judgment this writ of error was granted.

It will be observed from the foregoing statement that the narrow question presented on this record for decision is whether the defendant’s plea of former conviction by the mayor of the city of Harrisonburg constituted a bar to the prosecution for the same offense in the circuit court. The answer to that question must be found in the correct construction of pertinent sections of chapter 388, Acts 1918, .p. 578, et seq.

It may be remarked in the outset that, upon well settled principles, this court has uniformly refused writs of error in cases of conviction by the authorities of cities and towns under ordinances passed in pursuance of the act of 1916 (chapter 146) where the accused sought to set up such judgment in bar of prosecutions by the Commonwealth for violations of the prohibition act. Under that act such ordinances were regarded as mere local regulations for the government of the inhabitants of the municipality, leaving it discretionary with the authorities to provide adequate penalties for their violation. But those ordinances are readily distinguishable from criminal statutes which prescribe laws for the government of the people generally throughout the State, and provide punishment for their violation.

The significance of the essential changes made by the legislature in the original act in corresponding sections of the act of 1918 demand careful consideration and furnish the guide to. the correct decision of this case. Among the purposes of the latter act, set out in the title, are the following: “* * * to prescribe the jurisdiction for trial and appeals of cases arising under .this act:” And again: “* * * to provide for the enforcement of this act and to prescribe penalties for the violation of this act.”

A comparison of section 24 of the act of 19Í6 with the corresponding section in the act of 1918 shows that the italicized language has been added in the last named act:

“Sec. 24. Jurisdiction of cases arising under this act.— •The circuit, corporation and hustings courts having jurisdiction for the trial of criminal eases shall have exclusive original jurisdiction except as herein otherwise provided, for the trial of all cases arising under this act and for the trial of all civil .cases involving the ownership of ardent spirits and other property seized under its provisions; except that mayors, police justices and others having jurisdiction for the trial of cases for the violation of the ordinances of the cities and towns shall have jurisdiction to try cases •arising under ordinances passed by their respective cities and towns as hereinafter provided, with the right of appeal to the defendant to the court having jurisdiction to try such appeal.” And section 27 of the act of 1918 adds to the provision in the same section in the act of 1916, empowering cities and towns to pass ordinances regulating the sale, etc., of ardent spirits and for their violation, “to provide adequate penalties therefor,” “provided such penalties shall not be less than those for similar offenses under this act.” (Italics supplied.)

The italicized language in section 24, it seems to us, shows a legislative purpose to add to the tribunals theretofore clothed with exclusive original jurisdiction for the trial of this class of criminal offenses. And a painstaking examination of the act fails to disclose any tribunal to satisfy the language of the exception other than those of mayors, police justices, etc., of cities and towns. This view, we think, is also emphasized by the concluding language of section 27 (which appears for the first time in the act of 1918), “provided such penalties shall not be less than those for similar offenses under this act.”

It is not reasonable to suppose that the legislature would have empowered cities and towns to pass ordinances adopting the provisions of the prohibition act and to prescribe penalties for their violation (provided such penalties should not be less than those for similar offenses under the act) unless its purpose had been to invest the municipal authorities with concurrent jurisdiction with the State courts in cases arising under such ordinances.

Doubtless the practical administration of the prohibition act for two years had shown the necessity for extending the original criminal jurisdiction for the trial of offenses arising under that act to mayors and police justices within the territorial limits of their respective cities and towns. We have found great diversity of opinion on this subject, largely due, we conceive, to the measure of derivative authority conferred by the legislature in the particular case. So, at last, the question resolves itself into one of statutory construction.

In conformity to the act of 1918, the city of Harrison-burg adopted a prohibition ordinance under which the plaintiff in error was convicted by the mayor for an offense dedared by the act to be a misdemeanor, a crime against the Commonwealth, punishable by fine and imprisonment; and Of that crime he was found guilty and fined $50, and confined in jail one month. Subsequently plaintiff in error was tried in the Circuit Court of Rockingham county for the identical offense, his plea of former conviction was rejected, and he was found guilty and again fined $50, and sentenced to confinement in jail for one month.

The cases of Thon v. Commonwealth, 31 Gratt. (72 Va.) 887, and Morganstern v. Commonwealth, 94 Va. 787, 26 S. E. 402, indicate the line of cleavage between cases in which convictions for the violation of city ordinances by municipal authorities will bar, and those in which they will not bar, subsequent prosecutions for the same act in the courts of the Commonwealth. In Thon’s Case, plaintiff in error was indicted in the Hustings Court of the city of Richmond for a violation of the act of March 6, 1874 (Acts 1874, p. 76), forbidding the sale of an intoxicating drink in any barroom, etc., within the limits of the Commonwealth from 12 o’clock on Saturday night until sunrise of the succeeding Monday morning. The violation of the act is made a misdemeanor punishable by fine of not less than $10 nor more than $500 and, in the discretion of the court, forfeiture of the offender’s license. The act contains the proviso, “this law shall not apply to any city having police regulations on this subject and an ordinance inflicting a penalty equal to the penalty inflicted by this statute.” The accused had already been convicted under an ordinance of the city of Richmond requiring every hotel keeper, etc., to close his bar every Sunday during the whole day, and prescribing a fine of not less than $10 nor more than $500 for its violation. This conviction was relied on as a defense to the prosecution, on the ground that the case came within the proviso of the statute, and that the hustings court was, therefore, without jurisdiction. .

Morgcmstern’s Case, arose under a subsequent statute found in Va. Code, 1904, section 3804, which, declares that no barroom, etc., shall be opened and no intoxicating liquor, etc., shall be sold during the same period prescribed in the act of 1874, supra, and imposes a similar 'fine; and, moreover, declares “that the license of the place where the sale was so made shall be revoked.” Morganstern had likewise been convicted for a violation of the ordinance referred “to, and set up that conviction as a bar to the prosecution in the Hustings Court of the city of Richmond for the same act under section 3804. In both cases the parties were convicted, and upon writs of error this court held that the offense defined and the punishment provided by the ordinance for its violation were not substantially the same as those defined and prescribed by the statutes referred to, and that a conviction under the former did not bar a prosecution under the latter. If, however, the ordinance and statutes had defined the same offense and prescribed substantially the same punishment, the city would have been held to be exempt from the operation of the statute in Thon’s Case, and that a conviction under it was a bar to the prosecution in Morganstern’s Case. See note to section 3804, supra.

We are of opinion that the effect of the changes in the original prohibition statute by the act of 1918 conferred upon the mayor of the city of Harrisonburg concurrent original jurisdiction with the Circuit Court of Rockingham county to try the case in question, and that his judgment therein was a bar to the second prosecution in the circuit court by virtue of section 8 of thé bill of rights, which ordains that no man shall “be put twice in jeopardy for the same offense.”

For these reasons the judgment complained of must be reversed.

Reversed.