Barber v. City of Danville , 149 Va. 418 ( 1928 )

Campbell, J.,

delivered the opinion of the court.

■ On the 24th day of January, 1927, the police justice of the city of Danville issued a warrant charging that the plaintiff in error (hereinafter called accused), on the 23rd day of January, 1927, within three miles of the corporate limits of the city, did unlawfully manufacture, sell, offer, keep, store and. expose for sale, give away, transport, possess and drink ardent spirits.

A trial was had before the police justice, which resulted in the conviction of the accused. Upon an appeal to the corporation court, the accused was tried by a jury, which found him guilty, and fixed his punishment at a fine of $500 and- twelve months imprisonment in jail.

When the case was called for trial, the accused demanded a bill of particulars, which was furnished and is as follows:

“(1) Keeping ardent spirits for sale. (2) Possession of ardent spirits. (3) Transporting ardent spirits, all within three miles of the city of Danville.”

It is assigned as error that the ordinance of the city of Danville, under the alleged provisions of which the accused was convicted, does not embrace the alleged offenses set forth in the bill of particulars, and, therefore, it was error for the court to enter judgment upon the verdict of the jury.

The only section of the prohibition ordinance with which we are concerned is as follows:

“It shall be unlawful for any person in this city and within three miles of this city to manufacture, transport, sell, keep or store for sale, offer, advertise or expose for sale, give away, dispense or solicit in any way or receive orders for, or aid in procuring ardent spirits except as hereinafter provided.”

While it is conceded that the legislature may confer upon a municipality full power to regulate the liquor traffic and control its use in every particular, within the corporate limits of the municipality and within a reasonable radius thereof, it is urged upon us that the legislature has not conferred upon cities and towns the power to prohibit the keeping of ardent spirits for sale, or the possession, or the transporting of ardent spirits outside of but within three miles of the city or town limits.

The provision of law relied upon by the city is section 4675 (cl. 34), the material parts of which are as follows:

“Nothing in this act shall be construed as conflicting with the jurisdiction of any mayor or police justice in the enforcement of city or town ordinances prohibiting the manufacture, sale or distribution of ardent spirits. Por the enforcement of such ordinances the mayor or police justice shall have jurisdiction over the territory contiguous to the city or town within three miles of the city or town limits * *

It is the policy of the courts to give to the prohibition statute “a fair construction in the light of its enactment, and if the legislative intent can be gathered from its language, it should be given effect.” Jordan’s Case, 138 Va. 842, 122 S. E. 266.

But there are limits which bind a court in the construction of a penal statute beyond which it should not even strive to go. In Jordan’s Case, supra, Judge Burks, delivering the opinion of the court, said: “The territory over which a court is to exercise jurisdiction is a matter to be fixed by statute, and if an act is an offense if committed at one place, but not an offense if committed at another, then it is incumbent on the prosecutor to allege and prove that the act was done at the former place. If it is doubtful, the prosecution must fail. Compare Minturn v. Larue, 23 Howard (64 U. S.) 435, 16 L. Ed. 574; Cool v. Commonwealth, 94 Va. 799, 26 S. E. 411.”

In Street v. Broaddus, 96 Va. 823, 32 S. E. 466, Judge Keith, discussing the effect to be given a penal statute, said: “This statute is highly penal in its nature. It is not to be extended by implication, but he who seeks to avail himself of the ruinous penalties which it imposes must bring himself strictly within its terms.”

In McKay v. Commonwealth, 137 Va. 826, 120 S. E. 138, Judge West said: “A penal statute cannot be extended by implication or construction. It cannot be made to embrace cases not within the letter though within the reason and policy of the law. To constitute an offense the act must be both within the letter and the spirit of the statute defining it. Those who contend that a penalty is imposed must show that the words of the act distinctly cover the case. * * If a penal statute is so ambiguous as to leave reasonable doubt of its meaning, it is the duty of the court to refuse to impose the penalty.”

In construing the statute upon which the ordinance is based, we are bound by the presumption that the legislature has embodied in the statute all the authority it has designed to grant a municipality, and we cannot by implication read into the statute something that was not contemplated by the legislature.

The bill of particulars sets forth that the accused was guilty of keeping ardent spirits for sale, was guilty of possessing ardent spirits, and was guilty of transporting ardent spirits. The statute, when conferring jurisdiction upon a municipality for the enforcement of the prohibition law without the corporate limits, but within three miles of same, does not employ any of the terms employed in the bill of particulars. The offenses covered by the statute are confined to the manufacture, sale or distribution of ardent spirits. No doubt it was in the mind of the draftsman of the act that the circuit court of the county could afford ample protection against the commission of the acts enumerated in the bill of particulars. If such offenses are to be punished by the municipality, the statute must be amended.

In Swift v. Luce, 27 Me. 285, we read: “Courts of justice can give effect to legislative enactments only to the extent to which they may be made operative by a . fair and liberal construction of the language used. It is not their province to supply defective enactments by an attempt to carry out fully the purposes which may be supposed to have occasioned those enactments. This would be but an assumption by the judicial of the duties of the legislative department.”

While this is the first time this court has been called upon to construe the statute herein involved, it appears that the legal department of the State has heretofore construed the same. In the report of the Attorney-General to the Governor of Virginia, for the year 1927, on page 137, we find the following letter:

“Richmond, Virginia, January 9, 1926.

“K. S. French, Esq.,

“Narrows, Virginia.

“Dear Mr. French:

“I have yours of the 8th, in which you say:

“ T am at a loss to know just what my jurisdiction is, outside of the corporate limits of our town, but within three miles of same. Section 34 of the Layman act specifies that police justices of cities and towns shall have jurisdiction within three miles of the corporate limits in case of manufacture, sale and distribution of ardent spirits. Please advise me if I have jurisdiction in other eases under the Layman act, such as driving an automobile while under the influence of liquor, parties having liquor in their possession, parties being intoxicated, etc.’ ”

“In reply, I would say that section 34 of the Layman act applies only to towns and cities having ordinances prohibiting manufacture, sale and distribution of ardent spirits and the power of the mayor to enforce such ordinances within the three-mile radius is limited to cases of manufacture, sale and distribution, and not to the illegal possession or to parties being intoxicated. As to these cases, the county authorities have sole jurisdiction under the State law.

“Yours very truly,

“JOHN R. SAUNDERS,

‘ ‘ A ttorney-Gener al.”

This construction of the statute by the Attorney-General, while in no sense binding upon this court, is of the most persuasive character and is entitled to due consideration.

From what has been said, it is apparent that the judgment must be reversed, the verdict of the jury set aside, and the case remanded to the corporation court to be there disposed of according to law.

Reversed.