Kelley & Moyers v. Bowman

69 S.E. 456, 68 W. Va. 49, 1910 W. Va. LEXIS 84

• Court: West Virginia Supreme Court
• Decided: August 10, 1910
• Status: Published

Opinions

BRAxxox, Judge :

Kelley & Moyers obtained an order of the Board of Affairs of the city of Bluefield granting leave for them to obtain a license to sell liquors in that city. They applied to the county court of the county for an order directing a certificate to be issued to enable them to pay the tax and perfect their license; but the court refused to make the order. Kelley & Moyers then applied to the clerk of the county court for such certificate, and he refused to issue the certificate. This certificate is provided for by statute. The Code of 1906, § 16, chapter 32, provides that when the consent of “the county or license court” for license has been obtained the clerk shall give the applicant a certificate of the fact of the consent of the proper authority, and on payment to the sheriff of the tax and his endorsement of payment on it the certificate constitutes a legal license. This duty of the clerk is purely ministerial. He has no discretion to withhold .it if the party has the consent for license of the proper authority. When Kelley & • Moyers were so refused this certificate they applied to this Court for a mandamus to compel the clerk to issue the certificate.

This case is governed by chapter 1, of the Acts of the Legislature of 1909, an act amending and re-enacting certain statutes constituting the charter of the city of Blnefield. -.This act of 1909 is the present charter of that city. This act in section 4 provides that the municipal authorities of the city shall consist of four commissioners constituting a Board of Affairs, and the Council. Section 6 says that “all the corporate powers of said city shall be vested in and exercised by the board of affairs or under its authority, except, as otherwise provided in this act.” Just here we note that this is a broad power. That section is immediately followed by section 7, saying that “The board of affairs of said city shall have and are hereby granted power to have said city surveyed; * * * to have the sole and exclusive right to grant, refuse or revoke any and all licenses for the earrj'ing on of any business within said city on which the state exacts or may exact a license tax.” This grant of authority to allow license is one of a large number of powers given the board of affairs by that section 7, covering the whole field of municipal authority. The contention made by the clerk in resistance of the mandamus is that the consent for license given by the board of affairs is not sufficient without the concurrence of the county court. It is true that under the statute relating in general to liquor licenses to be exercised within 'municipalities, the consent of both council and county court is’ requisite; but we are acting under a special act constituting the law of a particular -city, and we must test this case by that act. Kow, I am decidedly of .opinion that under'this section 7, taken alone, by reason of the words giving sole and exclusive power to the board of affairs, there could be no question as to the sufficiency of the order of that board to entitle Kelly & Moyers to the clerk’s certificate to enable them to pay the tax and perfect their license. But it is said that we can not act on that clause of the statute alone, but must look to section 59 which reads, so far as concerns this case, as follows: “Whenever anything for which a state license is or may be required is to be done within said city or within two miles of the corporate limits thereof, the board of affairs as herein provided may by ordinance require a city license to be had for doing-the same, the amount of which license shall be fixed by the board of affairs, in no case, however, to be less than the amount charged by the state for a license for doing the same thing, and may in any case, require from the person licensed a' bond, with sureties and in such penalty and with such conditions as it may deem proper, and the board of affairs on notice, may revoke such license at any time if the condition of the said bond be broken; and no license to sell strong or spirituous liquors or wine or beer, ale, porter or drinks of like nature, within said city, or within two miles of the corporate limits thereof, shall be granted by the county court of Mercer county, unless the person applying therefor shall produce to said county court the certificate of the board of affairs of said cityr, that said board of affairs has granted a city license authorizing said person to sell as aforesaid and the same has not been vetoed, by the council as herein provided for.” Great stress is laid upon the closing clause of section 59 in defense of this mandamus, the contention being that the county court must give its consent to the license. I have already said that it is conceded that the words of section 7 declaring that the board of affairs shall have sole and exclusive right to grant license, taken alone, would give the consent of that board full force and effect. Is the force of that clause of the statute destroyed by the closing clause of section 59 ? I may say that if the intent of the legislature was to grant to the board of affairs absolute power to grant or refuse license, it could not have selected from the vocabulary of the English language more forceful words to accomplish such purpose than the words “sole and exclusive right to grant.”' I need hardly summon here the rule laid down by all authority that courts must carry out the will of the legislature"when plainfy expressed. Get its intent 'when it has plainly expressed it and obey it. In such ease, where the words are plain and unquestionable in meaning, the question is not one of construction, but one of implicit obedience to the legislative power. It is a well established rule of construction that it is not permitted to interpret what needs no construction. Where the act is exjoressed in clear and precise terms, when the sense is manifest, there can be no reason to substitute a meaning or surmise or guess about it. Commonwealth v. Gains, 2 Va. Cases 172; 13 Encyclopedic Digest Va. & W. Va. Rep. 760. If we allow this plain language of power of the board of affairs to-be frittered away by reference to the section 59, what do we clo? We take from this important body a. power manifestly,, clearly, vested in it upon mere implication and surmise. Here I will cite a principle of construction of statutes that is very plain. We can not do this by mere implication, and deny this “sole and exclusive power” in the board- of affairs in that important section specifying its many powers, without plain 'words to justify us.. Such words are not in section 59. To thus qualify or deny this power of the hoard eve must run counter to the rule that hardly needs any authority, but is clearly stated in Railroad Co. v. Traction Co., 56.W. Va. 18. “A clearly expressed intention in one part of a statute does not yield to a doubtful construction of another portion of it; and when the general intention of the legislature- is clear and the spirit and purpose of the statute are manifest, a mere implication or inference of a contrary particular or special intent, arising out of language of doubtful meaning, must yield to the general intent.” (Pt. 9). How, suppose we say that the consent of the hoard of affairs is not good without confirmation by the county court. How, then, can we say that the power of the-' board of affairs is “sole and exclusive?” The act does give council power to veto the board of affairs, but that is provided in plain words by the statute; hut no plain words of veto are found to give the county court such power. We say that if it had been the intent of the legislature to qualify this “sole and exclusive power” in the board, it would have said so in plain words; hut we are called upon to insert such words, to infer such intent — a mere implication. A repeal of a vital and clear clause, expressed in explicit language, by sheer implication, and that against the plain, general purpose of the statute in this respect, clearly apparent in the act, that is, to confine this license power to the board of affairs. I repeat in the lan-. guage of Railroad Co. v. Traction Co., supra, in pt. 8 of the syllabus, that “a clearly expressed intention in one part of the statute does not yield to a doubtful construction in another, portion of it.” Mere implication will not do. Appeal was made in argument to the principle referred to in Spiedel v. Warder, 65 W. Va. 602, that where ■ clauses of a statute are in irreconcilable conflict the latest clause shall prevail. Generally it is so; but I doubt its application when the manifest and dominant-intent crops out in an earlier clause and I say that this. act clearly imports an intent to give this important body, the board of affairs, this important power, sole control over the liquor question. “If a subsequent clause is obscure, it will not control a previous clear provision.” State v. Williams, 8 Ind. 191. And another thought here comes in, and it is this; the clause giving the board this sole and exclusive power as to licenses is specific, applicable only to the subject of license, special to it, whereas the closing clause of section 59 is not so specific. Turning to 26 Am. & Eng. Ency. L. 619, we find it stated that “the clause which is directed specially to the matter in preference to others mentioned in it incidentally only” shall prevail. And in the same volume, p. 618, is this statement of the law: “It is an old and familiar rule that where there is. in the same statute a ¡particular enactment and also a general one, which in its most comprehensive sense would include 'what is embraced in the former, the particular enactment must be operative and the general enactment must be taken to affect only such cases within its general language as are not within the provisions of the particular enactment. But this rule is subordinate to the principle just stated, that statutes are to be so construed that if possible full effect shall be given to all parts thereof.” I quote note 1, “Where one section of a statute treats specially and solely of a matter, that section prevails in reference to that matter over'other sections in which only incidental reference is made thereto, because the legislative mind having been in the one section directed to this matter must be presumed to have there expressed its intention, rather then in other sections where its attention was turned to other things. Long v. Culp, 14 Kan. 412, citing Griffith v. Carter, 8 Kan. 565.” I consider this doctrine pointedly applicable in this case, even if we say that the two. clauses are directly in conflict.

But are these sections in conflict? I say not. The part of section 59 above quoted has not for its purpose the granting of license, and certainly not for the purpose of conferring the power upon the county court. Its main purpose is to give the city express power to levy a license tax and require bond and revoke license. Powers 'which without this clause it might not have, as a municipality can only levy taxes on subjects authorized by the legislature. Other statutes give power to the county court, in general cases, to grant or refuse license where no special act is involved, and it was not the mission of section 59 to confer that power upon a county court. We see that it does not expressly and affirmatively grant such power to the county court in the ease of Blnefield. The most that can be said is that it recognizes such power; but it surely.does not expressly grant it, and we can not give it this power by mere implication to nullify a power plainly granted to the board. I think that the closing provision of section 59 was inserted out of caution to protect the absolute power of the- board of- affairs in this matter. The draughtsmen thought that as the county court had power to grant license in Mercer county outside the city of Bluefield, its order might be claimed to warrant its exercisfe in the city or at least within two miles of it, and the clause was inserted to say that if the county court should grant license in the county it should not be held to operate inside the city or within two miles thereof. I can see another reason for this precautionary clause. Section 7 gives the general power to grant or refuse license inside the city, without mentioning two miles outside the city limits. Then section 59 authorizes the city by its board of affairs to levy a tax on a license to be exercised within the city or within two miles of the corporate limits of the city. Without -the closing clause of section 59 there might be question whether a license granted by the county court could be exercised outside the city limits but within two miles thereof, and this closing clause of section 59 was inserted to protect not only the city within its limits, but to clearly make the county court’s grant not good within two miles of the city. By the charter as it existed before the Act of 1909 a license was good within one mile of the city. A purpose of this clause in the new act was to extend the limit to two miles. I have already said that this last clause of section 59 does not affirm atively grant power to the county court as to licenses within the city, and that we can not give it such power by mere implication. I would, however, call the attention to the fact that this last clause is merely prohibitory. It prohibits the county court from granting license operative within two miles of the city limits. It is only a restrictive clause. I say that it supports the theory that the power of the board of.affairs is sole and exclusive, because this clause prohibits the county court from going within the two miles limit, and this preserves and defends the sole and absolute power of the board of affairs in the matter. Perhaps that clause was not necessary for this purpose; hut there it is, and we can assign it a function and purpose that shall make it not conflicting with the provisions of section 7. It is our duty to give it such construction as shall avoid conflict between the different clauses of the statute. Railroad Co. v. Traction Co., 56 W. Va. 18, pt. 8.

In support of the proposition that the purpose of the legislature was to give the board of affairs sole power, I would state the fact that the charter as it existed under chapter 3, Acts 1905, gave the council power to grant, and to grant only city license, whereas the Act of 1909 creates a board of affairs with sole and exclusive right to grant, refuse or revoke, “any and all licenses”. This power over “any and all licenses”, covering all state licenses, was first inserted by the Act of 1909. This change means something. It widened the powers of the board over the council, and made the board a license court for all licenses, state and city, ivithin the city. Reflect that under the Act of 1905 the council was simply authorized to grant license by the language, “ the council may require a city license to be had,” leaving room to say that the county court yet participated; but the Act of 1909 creates a board of affairs, and takes from the council the license power, and vests it in the board by the strong language “to have sole and exclusive right to grant, refuse or revoke,” etc. What does the insertion of these words “sole and exclusive” mean? They were not annexed to the former council power, but they are made an element of the power of this important board of affairs. This material alter-, ’ation must surely have a great force.

We have been asked to review former decisions, and hold as unconstitutional any legislative act giving a city sole power to. grant license without the consent of the county court; but we think this question should rest under these decisions.

We award the mandamvis against the clerk.

Writ Awarded.

Robinson, Peesident, dissents.