MilleR, Judge:
The town of Bramwell in the county of Mercer is a municipal corporation, chartered as such by the circuit court of that [55]*55county, under the provisions of chapter 47 of the Code of West Virginia, and has no other charter. The respondent, A. I. Godfrey, is the mayor thereof, duly elected, qualified and acting as such
On the 16th day of July, 1903, the council of said town made and passed an ordinance, with a preamble, in the words and figures following:
“Whereas, certain persons have, within the corporate limits of the town of Bramwell, openly engaged in gambling by operating a money mating device, known as Slot Machine, to the manifest corrupting of the morals of-the citizens of the said town:
Fow therefore,
Sec. I. Be it ordained by the council of the town of Bram-well, that any person or persons, who shall keep or exhibit any Gaming Table, Faro Bank or Keno Table, or any Slot Machine or any table or machine of like kind, under any denomination, whether the Game be played with Cards, Dice or otherwise, or shall be concerned in interest in keeping or exhibiting such table, hank or machine, shall be fined not less than $100.00.
See. IT. A second conviction for the offense named in the first section of this ordinance shall be punished by a fine of not less than $100.00 and imprisonment in the town jail not exceeding 30 days.
Section III. Any person who shall play upon any table or machine mentioned in the first section of this ordinance and thereby either wins or loses any sum of money shall be fined not less than $10.00.”
It further appears from the record that, at the time and since the passage of said ordinance, petitioner, Morley, was the proprietor of a hotel in Bramwell; that there was in the waiting room or lobby of that hotel, a slot machine, upon which people were allowed to play; that said machine did not belong to Morley, but to petitioner, Atkinson; and that Morley had permitted Atkinson to place the same in the hotel.
On the 9th day of July, 1903, a warrant was issued by said A. I. Godfrey as Mayor of said town of Bramwell against petitioner, J. E. Morley, upon the charge of keeping and exhibiting •the said slot machine in violation of the provisions of said [56]*56ordinance; and also a warrant against petitioner, E. W. Atkinson, npon the charge of playing upon said machine.
Petitioners were arrested npon the warrants issued against them, respectively as aforesaid, and taken before Godfrey as Mayor, and each required to enter into a recognizance to appear before said mayor at a time fixed, to answer the aforesaid charges. Petitioners then presented their respective petitions to Hon. Joseph M. Sanders, Judge of the Circuit Court of Mercer County, praying that writs of prohibition might issue to prohibit the said A. I. Godfrey, Mayor as aforesaid, from trying petitioners upon said warrants, for the alleged offenses therein charged. The writs prayed for, were denied by said Circuit Judge but upon presentation of similar petitions to^ a Judge of this Court, a rule was awarded upon each 'petition against Godfrey, as Mayor of the town of Bramwell, requiring him to show cause, if any, he can, why writs of prohibition shall not issue against him as prayed for.
The same question being involved in both cases, they are considered and disposed of together.
Petitioners allege that said ordinance is invalid; that the council of the town of Bramwell had, and has no authority to pass such ordinance; that the warrants issued by said mayor as aforesaid thereunder, were and are without legal authority, and are, therefore, void. They further contend that the subject of gambling and gambling devices is fully covered by State law, and that the Legislature not having granted power to such municipal corporations to regulate it, the town is without authority to do so.
Respondent, Godfrey, moves the court to quash the rule, and urges, in support of his motion, that the ordinance in question is authorized by a clause of section 28 of chapter 45 of the Code by which, it is required of the council of a city, town or village to protect the persons and property of the citizens of such city, town or village, and to preserve peace and good order therein. The cases of Moundsville v. Fountain, 27 W. Va. 182; Jelly v. Dils, 27 W. Va. 267; and Judy v. Lashley, 50 W. Va. 628, are cited by him.
In 'the two cases first mentioned, the question of the right of the towns of Moundsville and Parkersburg to require license under their respective charters from persons to sell spirituous [57]*57liquors therein and to punish offenders for unlawful sales, was determined in favor of the cities.
In referring,to those eases, Judge Poffenbarger, in Judy v. Lashley, 50 W. Va. 628, 634, says: “This position must not be confounded with the position announced in Moundsville v. Fountain, 27 W. Va. 182, and Jelly v. Dils, 27 W. Va. 267, holding that municipal corporations may punish for unlawful retailing of spirituous liquors,” etc. The statute expressly gives power to such corporations to impose license taxes'upon the privilege of making such sales, from which it results that the council must have power to enforce its regulations. That is a very different matter from the case under consideration. Those cases do not apply to the cases now before us.
Chapter 151 of the Code devotes twelve sections to the offenses of gaming, lotteries and lottery tickets. It defines the several prohibited acts and fixes the respective fines and punishments for violations thereof. This chapter seems to legislate upon and fully cover the whole subject mentioned in its title. The legislature having thus legislated, has the town of Bramwell power to make and pass the ordinance in question ? Points 1 and 2 .of the syllabus in Judy v. Lashley, supra, hold:
“The police power of a municipal corporation depends upon the will of the legislature, and a city, town or village can only exercise such police power as is fairly included in the grant of powers by its charter.
“Section 28 of chapter 47 of the Code, by vesting in the councils of municipal corporations power and duty cto protect the persons and property of the citizens of such city, town or village, and to preserve peace and good order therein/ does not confer power to punish acts made criminal by the State law and fully covered thereby, except such as would be attended with circumstances of aggravation not included in tire State law. Such power must be specifically and expressly given by the legislature before it can be exercised by such corporation.”
Said section 28 enumerates certain powers conferred upon the council. Section 29 further provides that, “To> carry into effect these enumerated powers, and all others conferred upon such city, town or village, or its council, by this chapter or by any further act of the legislature of this State, the council shall have power to make and pass all needful orders, by-laws, ordin-[58]
Free access — add to your briefcase to read the full text and ask questions with AI
MilleR, Judge:
The town of Bramwell in the county of Mercer is a municipal corporation, chartered as such by the circuit court of that [55]*55county, under the provisions of chapter 47 of the Code of West Virginia, and has no other charter. The respondent, A. I. Godfrey, is the mayor thereof, duly elected, qualified and acting as such
On the 16th day of July, 1903, the council of said town made and passed an ordinance, with a preamble, in the words and figures following:
“Whereas, certain persons have, within the corporate limits of the town of Bramwell, openly engaged in gambling by operating a money mating device, known as Slot Machine, to the manifest corrupting of the morals of-the citizens of the said town:
Fow therefore,
Sec. I. Be it ordained by the council of the town of Bram-well, that any person or persons, who shall keep or exhibit any Gaming Table, Faro Bank or Keno Table, or any Slot Machine or any table or machine of like kind, under any denomination, whether the Game be played with Cards, Dice or otherwise, or shall be concerned in interest in keeping or exhibiting such table, hank or machine, shall be fined not less than $100.00.
See. IT. A second conviction for the offense named in the first section of this ordinance shall be punished by a fine of not less than $100.00 and imprisonment in the town jail not exceeding 30 days.
Section III. Any person who shall play upon any table or machine mentioned in the first section of this ordinance and thereby either wins or loses any sum of money shall be fined not less than $10.00.”
It further appears from the record that, at the time and since the passage of said ordinance, petitioner, Morley, was the proprietor of a hotel in Bramwell; that there was in the waiting room or lobby of that hotel, a slot machine, upon which people were allowed to play; that said machine did not belong to Morley, but to petitioner, Atkinson; and that Morley had permitted Atkinson to place the same in the hotel.
On the 9th day of July, 1903, a warrant was issued by said A. I. Godfrey as Mayor of said town of Bramwell against petitioner, J. E. Morley, upon the charge of keeping and exhibiting •the said slot machine in violation of the provisions of said [56]*56ordinance; and also a warrant against petitioner, E. W. Atkinson, npon the charge of playing upon said machine.
Petitioners were arrested npon the warrants issued against them, respectively as aforesaid, and taken before Godfrey as Mayor, and each required to enter into a recognizance to appear before said mayor at a time fixed, to answer the aforesaid charges. Petitioners then presented their respective petitions to Hon. Joseph M. Sanders, Judge of the Circuit Court of Mercer County, praying that writs of prohibition might issue to prohibit the said A. I. Godfrey, Mayor as aforesaid, from trying petitioners upon said warrants, for the alleged offenses therein charged. The writs prayed for, were denied by said Circuit Judge but upon presentation of similar petitions to^ a Judge of this Court, a rule was awarded upon each 'petition against Godfrey, as Mayor of the town of Bramwell, requiring him to show cause, if any, he can, why writs of prohibition shall not issue against him as prayed for.
The same question being involved in both cases, they are considered and disposed of together.
Petitioners allege that said ordinance is invalid; that the council of the town of Bramwell had, and has no authority to pass such ordinance; that the warrants issued by said mayor as aforesaid thereunder, were and are without legal authority, and are, therefore, void. They further contend that the subject of gambling and gambling devices is fully covered by State law, and that the Legislature not having granted power to such municipal corporations to regulate it, the town is without authority to do so.
Respondent, Godfrey, moves the court to quash the rule, and urges, in support of his motion, that the ordinance in question is authorized by a clause of section 28 of chapter 45 of the Code by which, it is required of the council of a city, town or village to protect the persons and property of the citizens of such city, town or village, and to preserve peace and good order therein. The cases of Moundsville v. Fountain, 27 W. Va. 182; Jelly v. Dils, 27 W. Va. 267; and Judy v. Lashley, 50 W. Va. 628, are cited by him.
In 'the two cases first mentioned, the question of the right of the towns of Moundsville and Parkersburg to require license under their respective charters from persons to sell spirituous [57]*57liquors therein and to punish offenders for unlawful sales, was determined in favor of the cities.
In referring,to those eases, Judge Poffenbarger, in Judy v. Lashley, 50 W. Va. 628, 634, says: “This position must not be confounded with the position announced in Moundsville v. Fountain, 27 W. Va. 182, and Jelly v. Dils, 27 W. Va. 267, holding that municipal corporations may punish for unlawful retailing of spirituous liquors,” etc. The statute expressly gives power to such corporations to impose license taxes'upon the privilege of making such sales, from which it results that the council must have power to enforce its regulations. That is a very different matter from the case under consideration. Those cases do not apply to the cases now before us.
Chapter 151 of the Code devotes twelve sections to the offenses of gaming, lotteries and lottery tickets. It defines the several prohibited acts and fixes the respective fines and punishments for violations thereof. This chapter seems to legislate upon and fully cover the whole subject mentioned in its title. The legislature having thus legislated, has the town of Bramwell power to make and pass the ordinance in question ? Points 1 and 2 .of the syllabus in Judy v. Lashley, supra, hold:
“The police power of a municipal corporation depends upon the will of the legislature, and a city, town or village can only exercise such police power as is fairly included in the grant of powers by its charter.
“Section 28 of chapter 47 of the Code, by vesting in the councils of municipal corporations power and duty cto protect the persons and property of the citizens of such city, town or village, and to preserve peace and good order therein/ does not confer power to punish acts made criminal by the State law and fully covered thereby, except such as would be attended with circumstances of aggravation not included in tire State law. Such power must be specifically and expressly given by the legislature before it can be exercised by such corporation.”
Said section 28 enumerates certain powers conferred upon the council. Section 29 further provides that, “To> carry into effect these enumerated powers, and all others conferred upon such city, town or village, or its council, by this chapter or by any further act of the legislature of this State, the council shall have power to make and pass all needful orders, by-laws, ordin-[58]*58anees, resolutions, rules and regulations, not contrary to the constitution and laws oí this State; and to prescribe, impose and enact reasonable fines, penalties and imprisonments in the county jail or the place of imprisonment in said corporation, if there be one, for a term not exceeding thirty days, for a violation thereof. Such fines, penalties and imprisonments shall be recovered and enforced under the judgment of the mayor of such city, town or village, or the person lawfully exercising his functions.”
There is no specific authority conferred by our statute upon cities, towns or villages to regulate gaming or gambling devices-
In Gas Co. v. Parkersburg, 30 W. Va. 439, this Court said: “It is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers, and no others: First, those granted in express words; second, those necessarily and fairly implied in or incident to the powers expressly granted; third, those essential to the declared objects and purposes of the corporation, not simply convenient, but indispensable. Any fair, reasonable doubt concerning the existence of power is resolved by the courts against the corpora-, tiori, and the power is denied. Of every municipal corporation the charter or statute by which it is created is its organic act. Neither the corporation nor its officers can do any act, or make any contract, or incur any liability, not authorized thereby. All acts beyond the scope of the powers granted are void. Much less can any power be exercised, or any act done, which is forbidden by charter or statute. These principles are of transcendent importance, and lie at the foundation of the law of municipal corporations. 1 Dill. Mun. Corp., section 89, (55.)”
In 20 Am. & Eng. Enc. Law, 2 Ed., 1140, the rule is thus stated: “The rule is general that the powers of a municipal corporation are to be strictly construed, and if there is a reasonable doubt of the existence of a particular power, the doubt is to be resolved in the negative,”
It is not necessary for the determination of these cases, to decide whether or not the slot machine is included within the meaning of the sections of chapter 151, above stated. The ordinance under consideration places it in the same class as the gambling devices enumerated in section 1 of that chapter; and prescribes penalties for the violation of said ordinance. This, [59]*59the council, neither hy the express terms of the statute nor by fair implication, had any legal authority to do.
Ror the reasons stated, the ordinance aforesaid was and is void, and of no legal effect. The motion to quash said rule is therefore overruled, and the writ in each case is awarded, as prayed for.
Writ Awarded.