Thompson
v. Smith, Chief of Police.
Supreme
Court of Appeals of Virginia.
155
Va. 367, 154 S.E. 579, 71 A.L.R. 604.
Sept.
12, 1930.
1.
Automobile 133.
Ordinance provision that driver's permit should be perpetual
held
not to prevent valid amendment, applicable to permits already
issued,
providing for revocations.
The ordinance provided that a permit granted thereunder should
be
perpetual unless revoked as provided "in this chapter," but
there
was not provision made in such chapter for revocation
thereof.
Permittee contended that his permit which had been issued
prior
to the amendment could not be revoked under the amendment.
2.
Municipal corporations 661(1).
Power to control and regulate use of streets is continuing
power
exercisable whenever city thinks proper.
3.
Automobiles 133.
Issuance and revocation of drivers' permits is exercise of
police
power (Const. 1902, sec. 159).
The issuance and revocation of such permit by a city is merely
an
exercise
[580]
of
the police power of the state to regulate the use of public
highways
in the interest of public safety and welfare, delegated
to
the city. Const. 1902, sec. 159, provides that "the exercise
of
the police power of the state shall never be abridged."
4.
Automobiles 144.
Judge of municipal court, exercising function, under
ordinance,
of passing on application for reinstatement of revoked
driver's
permit, is acting as administrative, not judicial,
officer.
In acting upon the application for reinstatement, the judge
of
the municipal court is acting in an administrative capacity and
his
discretionary power is the same as that of the chief of police,
except
that the exercise of his discretion may supersede that of
the
chief of police.
5.
Automobiles 133.
Ordinance provision authorizing driver's permit reinstatement
by
municipal judge *held* void.
6.
Constitutional law 82.
Citizen's right to travel upon public highways and transport
his
property thereon in ordinary course of life and business is
common
right.
The right of a citizen so to do is that which he has under his
right
to enjoy life and liberty, to acquire property, and to pursue
happiness
and safety.
7.
Automobiles 4.
Highways 168.
Citizen's right to travel upon public highways includes right
to
use usual conveyances of time, including horse-drawn carriage,
or
automobile, for ordinary purposes of life and business.
8.
Municipal corporations 703(1).
Citizen's right to travel upon public highway and use usual
conveyances
in so doing is not mere privilege which city may permit
or
prohibit at will.
9.
Municipal corporations 703(1).
City, in regulating, under police power, citizen's right to
travel
upon public streets, may not arbitrarily or unreasonably
prohibit
or restrict it, nor permit one, and refuse another of like
qualifications,
under like conditions, to exercise it.
10.
Automobiles 133.
Cities may regulate exercise of right to drive private
automobile
on streets by granting, refusing, and revoking permits,
but
only under rules of general application.
Such permits may not be arbitrarily refused or revoked or
permitted
to be held by some and refused to others of like
qualifications,
under like circumstances and conditions.
11.
Constitutional law 62.
Legislative function to determine and declare law may not be
delegated
to executive or administrative officers.
12.
Municipal corporations 591.
City may invest administrative officer with reasonable
discretion,
especially in carrying out police power, provided
discretion
is ministerial.
13.
Constitutional law 62.
In regulating exercise of common right, legislative body must
declare
policy of law and fix legal principles to control in given
cases,
but administrative body may be invested with power to
ascertain
facts and conditions to which policy and principles
apply.
14.
Municipal corporations 662.
Portion of ordinance authorizing police chief to revoke
driver's
permit who, in his opinion, becomes unfit to drive *held*
void.
The term "unfit to drive an automobile on the streets of the
city,"
as used in the ordinance, is clearly intended to extend
beyond
what can be said the technical knowledge or the sense and
experience
of men have rendered reasonably certain. That portion
of
the ordinance authorizing the chief of police to revoke the
permit
of any driver who, "in his opinion," becomes unfit to drive
an
automobile on the streets of the city, fails to declare the
policy
of the law and fix the legal principles which are to control
the
discretion of the chief of police in the revocation of licenses
in
determining what constitutes unfitness to drive an automobile
on
the city streets; and is void because delegating powers
essentially
legislative to an administrative officer.
15.
Injunction 77(2).
Where ordinance provision authorizing police chief to revoke
driver's
permit was void, provision for application to municipal
court
judge for reinstatement *held* not adequate remedy at law,
as
regards injunction.
16.
Equity 3.
Invalidity or unconstitutionality of statute or ordinance is
not,
of itself, ground of equity jurisdiction.
A court of equity has not jurisdiction to enjoin acts simply
because
they are at-
[581]
tempted
or threatened under color of an unconstitutional or void
statute
or ordinance. Further circumstances must be shown which
bring
the case within some recognized ground of equity
jurisdiction.
17.
Equity 3, 46.
Inadequacy of legal remedy and irreparable injury are
well-recognized
grounds of equity jurisdiction.
18.
Injunction 85(2).
Injunction lies against enforcement of void statute or
ordinance,
where legal remedy is not as complete or adequate as
injunction,
or where threatened or attempted enforcement will do
irreparable
injury to person in interfering with exercise of common
fundamental
personal right
By "irreparable injury" is meant an injury of such a nature
that
fair and reasonable redress may not be had in a court of law
and
that to refuse the injunction would be a denial of justice.
19.
Injunction 85(2).
Injunction lies to restrain chief of police from enforcing
invalid
ordinance provision authorizing him to revoke driver's
permit.
The only remedies at law of the permittee were either to
proceed
by petition for mandamus to compel the police chief to
restore
his permit, or to wait until arrested upon the charge of
driving
without a permit and interpose the defense that the
provision
was void. Neither of these remedies was as complete and
adequate
as a suit for injunction to protect complainant against
wrongful
interference. The bill alleged that complainant "will
sustain
irreparable injury in his pursuance of happiness and in
acquiring
and the use of his property."
Appeal from Corporation Court of Lynchburg.
Bill by W. L. Thompson against D. C. Smith, Chief of Police
of
the City of Lynchburg. From a decree dismissing the bill upon
demurrer,
plaintiff appeals.
Reversed and remanded.
A. S. Hester, of Lynchburg, for appellant.
T. G. Hobbs, of Lynchburg, for appellee.
EPES, J.
W. L. Thompson appeals from a decree entered on March 15,
1929,
by the corporation court of the city of Lynchburg dismissing
upon
demurrer a bill in chancery filed by him against D. C. Smith,
chief
of police of said city, in which he prays that said chief of
police
be enjoined from interfering with his operation of his
private
passenger automobile on the streets of Lynchburg, and that
the
chief of police be compelled to restore to him his permit to
operate
a private automobile on said streets, which permit it is
alleged
the chief of police has revoked, acting under the
italicized
provision of subsection c of section 134 of the General
Ordinances
of the City of Lynchburg below quoted.
Section 134 of the General Ordinances of the City of
Lynchburg,
as amended by an ordinance adopted September 22, 1925,
reads
as follows:
"(a) It shall be unlawful 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 police, who shall cause such
applicant
to be carefully examined as to his or her ability to
safely
and properly operate motor vehicles upon the streets of the
city,
and as to his or her knowledge of the traffic laws of the
state
of Virginia and City of Lynchburg. And no permit shall be
issued
to such person unless such examination shall disclose that
he
or she possesses such ability and knowledge as, in the judgment
of
the chief of police, qualifies such person to receive such
permit.
And in no event shall any such permit be issued to any
person
under the age of sixteen years. * * *
"(c) The person to whom such permit shall be issued, shall
pay
a fee of $1.00 therefor; and such permit shall always be
carried
by such person while operating any motor vehicle upon the
streets
of the city and shall be presented by such person to any
police
officer upon request. Such permit shall be perpetual unless
revoked
as provided in this chapter. Conviction of a felony, or
of
violating the prohibition law, shall revoke such permit for a
period
of twelve months and conviction of the violations of the
traffic
laws three times within one year shall revoke such permit
for
such time as the judge of the Municipal Court may direct, not
to
exceed one year. *The Chief of Police is authorized and
directed
to revoke the permit of any driver who, in his opinion,
becomes
unfit to drive an automobile on the streets of the city,*
with
the right to the holder of such permit to apply to the judge
of
the Municipal Court to have his permit reinstated."
Prior to said amendment of September 28, 1925, section 134
read
just as it now does, except that it did not contain the last
two
sen-
[582]
tences
of subsection c, which were added by said amendment.
After setting forth the said ordinance, the amendment thereof,
and
that Thompson had been issued the permit revoked by the chief
of
police prior to September 28, 1825, the bill alleges the
following
facts:
When said permit was issued to him, Thompson then possessed,
and
has always since possessed, all the requirements, ability, and
knowledge
required by said ordinance as a prerequisite to the
issuance
of a permit to drive an automobile on the streets of
Lynchburg.
Thompson is the owner of the automobile which he was
driving
at the time his permit was revoked, and had been driving
an
automobile on the streets of Lynchburg for more than ten years
without
any complaint having been made as to his ability to drive
an
automobile safely and properly. He has not become in any way
incapable
of driving an automobile since his permit was granted.
He
has not been convicted of any offense for the conviction of
which
said ordinance authorizes the revocation of his permit.
The circumstances of the revocation of Thompson's permit were
these:
Prior to the revocation of his permit he had been twice
convicted
before the judge of the municipal court of the city of
Lynchburg
of speeding on the city streets, and on each conviction
was
fined $50. He did not appear to make any defense on either
occasion.
On the second trial the judge of the municipal court at
first
ordered Thompson's permit revoked; but, when it was brought
to
his attention that the ordinance authorized him to revoke a
permit
for a conviction of violating the traffic laws only when the
defendant
has been convicted three times within one year, he so
modified
his judgment as to omit the revocation of the permit.
Thompson continued to drive his car in the city of Lynchburg
for
some time after said conviction without any interference from
the
police; but in November, 1928, he was summoned to appear before
the
judge of the municipal court on the charge of driving a car
without
a permit. When the case was heard Thompson claimed to have
a
permit, and testified he had not received any notice from any one
that
his permit had been revoked. The chief of police testified
that
he had written Thompson that his permit had been revoked, but
that
he did not know whether Thompson had gotten the notice or not.
The judge of the municipal court held that Thompson could not
be
convicted on this testimony of driving without a license or
permit;
but instructed the chief of police to notify him there and
then
that his permit was revoked. The chief of police then and
there
in open court notified Thompson that his permit was revoked;
but
no reason was given at the time for the revocation of his
permit
by either the judge of the municipal court or by the chief
of
police.
The bill charges that the chief of police in revoking this
permit
acted under the italicized provision of subsection c of
section
134 of the General Ordinances, as amended, hereinbefore
quoted;
and that the chief of police was without authority to
revoke
said permit for the following reasons:
(1) Thompson had acquired a vested right in his permit prior
to
the time the ordinance was amended so as to provide for the
revocation
of permits; and, if this amendment is intended to apply
to
permits granted before it was adopted, it is void, because it
violates
section 58 of the Constitution of Virginia which prohibits
the
passage of ex post facto laws or laws impairing the obligation
of
contracts.
(2) The provision authorizing the chief of police "to revoke
the
permit of any driver who, *in his opinion,* becomes unfit to
drive
an automobile on the streets of the city" is void, because
it
is a delegation of legislative power to an administrative
officer,
in that it authorizes the chief of police to revoke a
permit
whenever, *in his opinion,* the holder thereof has done or
omitted
to do something, the doing or omission of which the chief
of
police thinks renders the holder unfit to drive an automobile
on
the streets of the city, without prescribing any uniform rule,
applicable
to all persons alike, as to what constitutes unfitness
to
drive an automobile on the streets of the city, or laying down
any
rule for the guidance and control of the chief of police in
determining
what constitutes unfitness to drive an automobile on
the
streets of the city.
The bill further alleges that, if Thompson be deprived of the
right
to drive his automobile on the streets of the city, "he will
sustain
irreparable injury in his pursuance of happiness and in
acquiring
and the use of his property."
The sole ground of demurrer stated is that "the bill on its
face
shows that the plaintiff has a remedy at law to have 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 have his permit reinstated
and
that said plaintiff has failed to exercise his legal right and
cannot
apply for an injunction until he has exhausted his legal
remedy."
The trial court sustained this ground of demurrer and
dismissed
the bill.
[1-3] The contention made by the appellant of the ordinance
under
which his permit was granted provided that it should "be
perpetual
unless revoked as provided in this chapter," and that,
as
no provision was made in said chapter for revocation thereof,
there-
[583]
fore,
the city could not thereafter by amendment of the ordinance
provide
for revocation of his permit, is not well made. The power
of
a city to control and regulate the use of its streets is a
continuing
power to be exercised as often and whenever the city may
think
proper. Washington, etc., Ry. Co. v. City Council of
Alexandria,
98 Va. 344, 36 S.E. 385. The issuance and revocation
of
such permits by a city is merely a means of exercising the
police
power of the state delegated to the city to regulate the use
of
the public highways in the interest of the public safety and
welfare.
The Constitution of Virginia expressly provides that "the
exercise
of the police power of the State shall never be abridged."
Const.
Va. sec. 159.
[4, 5] But the appellant contends that the provision of this
ordinance
authorizing the chief of police "to revoke the permit of
any
driver who, in his opinion, becomes unfit to drive an
automobile
on the streets of the city," is void, because it is a
delegation
of legislative power to an administrative officer. If
this
contention is good, then the ground of demurrer relied by the
appellee
is not good.
When acting upon an application for the reinstatement of a
permit
revoked by the chief of police, the judge of the municipal
court
is acting as an administrative officer, and not in a judicial
capacity;
and his discretionary power is the same as that of the
chief
of police, except that the exercise of his discretion may
supersede
that of the chief of police. He is controlled by no more
specific
definition of what constitutes being unfit to drive an
automobile
on the streets of the city or rule for determining what
constitutes
such unfitness than is the chief of police. Therefore,
if
the provisions of the ordinance authorizing the chief of police
to
revoke a permit be void because it is a delegation of
legislative
powers to an administrative officer and vests an
arbitrary
and uncontrolled discretion in the chief of police, the
provisions
of the ordinance authorizing the exercise of the same
discretion
by the judge of the municipal court upon an application
for
reinstatement of the permit is also void (State ex rel. Makris
v.
Superior Court, 113 Wash. 296, 193 P. 845, 12 A.L.R. 1428); and
the
provision of the ordinance that the person whose permit has
been
revoked by the chief of police may apply to the judge of the
municipal
court for a reinstatement thereof cannot constitute an
adequate
remedy at law.
[6-8] The right of a citizen to travel upon the public
highways
and to transport his property thereon in the ordinary
course
of life and business is a common right which he has under
his
right to enjoy life and liberty, to acquire and possess
property,
and to pursue happiness and safety. It includes the
right
in so doing to sue the ordinary and usual conveyances of the
day;
and under the existing modes of travel includes the right to
drive
a horse-drawn carriage or wagon thereon, or to operate an
automobile
thereon, for the usual and ordinary purposes of life and
business.
It is not a mere privilege, like the privilege of moving
a
house in the street, operating a business stand in the street,
or
transporting persons or property for hire along the street,
which
a city may permit or prohibit at will.
[9] The exercise of such a common right the city may, under
its
police power, regulate in the interest of the public safety and
welfare;
but it may not arbitrarily or unreasonably prohibit or
restrict
it, nor may it permit one to exercise it and refuse to
permit
another of like qualifications, under like conditions and
circumstances,
to exercise it. Taylor v. Smith, 140 Va. 217, 124
S.E.
259; Ex parte Dickey, 76 W.Va. 576, 85 S.E. 781, L.R.A. 1915F,
840;
Hadfield v. Lundin, 98 Wash. 657, 168 P. 516, L.R.A. 1918D,
909,
Ann. Cas. 1918C, 942.
[10] The regulation of the exercise of the right to drive a
private
automobile on the streets of the city may be accomplished
in
part by the city by granting, refusing, and revoking, under
rules
of general application, permits to drive an automobile on its
streets;
but such permits may not be arbitrarily refused or
revoked,
or permitted to be held by some and refused to others of
like
qualifications, under like circumstances and conditions.
It has been said that, when the state or a city has the power
to
prohibit the doing of an act altogether, it has the power to
permit
the doing of the act upon any condition, or subject to any
regulation,
however arbitrary or capricious it may be; and may
lawfully
delegate to executive or administrative officers an
uncontrolled
and arbitrary discretion as to granting and revoking
permits
or licenses to do such acts. Taylor v. Smith, 140 Va. 217,
124
S.E. 259, 263; State ex rel. Crumpton v. Montgomery, 177
Ala.221,
59 So. 294; State v. Gray, 61 Conn. 39, 22 A. 675; City
of
St. Joseph v. Levin, 128 Mo. 588, 31 S.W. 101, 49 Am. St. Rep.
577;
Brown v. Stubbs, 128 Md. 129, 97 A. 227.
This doctrine has been pronounced most often in cases
involving
the granting, refusing, and revoking of licenses or
permits
to sell intoxicating liquors, or to do other things which
because
of their character are, or tend to be, injurious, as, for
instance,
keeping a gambling house or a bawdyhouse, or operating
a
junk or pawn shop; and it has also been applied to cases
involving
permits or licenses to transport persons or property for
hire
along the streets. See Taylor v. Smith, supra, and cases
there
cited. But this doctrine has no application to permits
issued
for the purpose of regulating the exercise of the common
right
to operate a private automo-
[584]
bile
on the streets of a city in the usual and ordinary way to
transport
the driver's person and property.
[11] It is a fundamental principle of our system of
government
that the rights of men are to be determined by the law
itself,
and not by the let or leave of administrative officers or
bureaus.
This principle ought not to be surrendered for
convenience
or in effect nullified for the sake of expediency. It
is
the prerogative and function of the legislative branch of the
government,
whether state or municipal, to determine and declare
what
the law shall be, and the legislative branch of the government
may
not divest itself of this function or delegate it to executive
or
administrative officers.
[12] This does not mean, however, that no discretion can be
left
to administrative officers in administering the law.
Government
could not be left to the judgment and discretion of
administrative
officers to accomplish in detail what is authorized
or
required by law in general terms. Without this power
legislation
would become either oppressive or inefficient. There
would
be confusion in the laws, and, in an effort to detail and
particularize,
the law would miss sufficiency both on provision and
detail.
Block v. Chicago, 239 Ill. 251, 87 N.E. 1011, 130 Am. St.
Rep.
219; Mutual Film Corp. v. Ohio Indus. Comm., 236 U.S. 239, 35
S.Ct.
387, 59 L.Ed. 552, Ann. Cas. 1916C, 296. This is
particularly
true where the discretion to be exercised by
administrative
officers relates to police regulations designed to
protect
the public morals, health, safety, and general welfare.
As
said by Burks, J., in Taylor v. Smith, supra: "A city may, in
the
execution of its police power, invest its administrative and
executive
officers with a reasonable discretion in the performance
of
duties devolved upon them to that end, whenever it is necessary
for
the safety and welfare of the public." But, it should be
added,
the reasonable discretion which may be vested in the
administrative
officers is limited to a discretion in its essence
ministerial
and not legislative, though it may be such as may be
exercised
by the Legislature.
In principle, legislation and administration are quite
distinct
powers; but in practical application the line which
separates
their exercise is not clearly marked or easily defined.
However,
in their definition in practical application lies the
difference
between government by legislation and government by
bureaucracy,
which, though contrary to the genius of our
government,
some courts have gone far towards sustaining.
The decisions of the various courts, and sometimes of the same
court,
are in conflict as to what constitutes a delegation of
legislative
power to administrative officers and bureaus. The
majority
of the cases lay down the rule that statutes or ordinances
vesting
discretion in administrative officers and bureaus must lay
down
rules and tests to guide and control them in the exercise of
the
discretion granted in order to be valid; but several courts
apply
the rule with varying degree of strictness. Other cases go
so
far in sustaining, especially in cases involving police
regulation,
grants of discretionary powers to administrative
officers
and bureaus without prescribing any definite rule or
specified
conditions to which the officers must conform, as, in
effect,
to substitute for government by legislative government by
administrative
officers and bureaus. For a collection of the cases
on
this subject, see note in 12 A.L.R. page 1435 et seq.
[13] Where a statute or ordinance assumes to regulate the
exercise
of a common right such as that here involved, by requiring
a
permit for the exercise thereof, which is to be granted or
refused
and may be revoked by an administrative officer in his
discretion,
the correct principles for determining whether it is
void
because it delegates legislative power to the administrative
officer
are stated by the court in Mutual Film Corp. v. Ohio
Industrial
Commission, 236 U.S. 239, 35 S.Ct. 387, 392, 59 L.Ed.
552,
Ann. Cas. 1916C, 296, in the following language: "The
legislature
must declare the policy of the law and fix the legal
principles
which are to control in given cases; but an
administrative
body may be invested with the power to ascertain the
facts
and conditions to which the policy and principles apply."
Mere matters of detail within the policy and the legal
principles
and standards established by the statute or ordinance
may
properly be left to administrative discretion; for the
determination
of such matters of detail is more essentially
ministerial
than legislative. In declaring the policy of the law
and
fixing the legal principles and standards which are to control
in
the administration of the law, general terms which get precision
from
the technical knowledge or sense and experience of men and
thereby
become reasonably certain may be used; and an
administrative
officer or bureau may be invested with the power to
ascertain
and determine whether the qualifications, facts, or
conditions
comprehended in and required by such general terms
exist,
and whether the provisions of the law so fixed and declared
have
been complied with in accordance with the generally accepted
meaning
of the words. Mutual Film Corp. v. Ohio Industrial
Commission,
supra; Yee Bow v. Cleveland, 99 Ohio St. 269, 124 N.E.
132,
12 A.L.R. 1424; Block v. Chicago, 239 Ill. 251, 87 N.E. 1011,
130
Am. St. Rep. 219.
The following statutes and ordinances to which this
last-mentioned
principle is ap-
[585]
plicable
have been upheld, though sometimes upon other grounds:
A
statute empowering a state board of censors to permit exhibitions
of
"only such films as are, in the judgment and discretion of the
board
of censors, of a moral, educational, or amusing and harmless
character,"
Mutual Film Corp. v. Ohio Industrial Commission, supra;
an
ordinance empowering the chief of police to refuse permits for
the
showing of pictures which are "immoral or obscene," Block v.
Chicago,
239 Ill. 251, 87 N.E. 1011, 1014, 130 Am. St. Rep. 219;
a
statute granting discretion to the board of dental examiners to
determine
in granting licenses to practice dentistry what
constitutes
"a reputable dental college," Ex parte Whitley, 144
Cal.
167, 77 P. 879, 1 Ann. Cas. 13; a statute providing for
revocation
of a physician's license for fraud in obtaining the
certificate,
the commission of criminal abortion, the conviction
of
a felony involving moral turpitude, or chronic inebriety, and
for
other "grossly unprofessional or dishonorable conduct of a
character
likely to deceive or defraud the public," Forman v. State
Board
of Health, 157 Ky. 123, 162, S.W. 796, 798; a statute
requiring
the health commissioner in granting a permit to conduct
a
laundry to ascertain whether the sanitary and drainage
arrangements
were sufficient to protect the public health and
whether
adequate ventilation, plumbing, and draining facilities had
been
provided, Yee Bow v. Cleveland, 99 Ohio St. 269, 124 N.E. 132,
12
A.L.R. 1424; an ordinance empowering officers of the police
department
"to direct all traffic in accordance with the provisions
of
this ordinance, or in emergencies as public safety or
convenience
may require," City of Chicago v. Marriotto, 332 Ill.
44,
163 N.E. 369, 60 A.L.R. 501.
In Hall v. Geiger-Jones Co., 242 U.S. 539, 37 S.Ct. 217, 222,
61
L.Ed. 480, L.R.A. 1917F, 514, Ann. Cas. 1917C, 643, the court
held
an ordinance valid which required an applicant for a license
to
deal in corporate securities to satisfy the commissioner that
he
was a person of good repute, saying: "Reputation and character
are
quite tangible attributes, but there can be no legislative
definition
of them that can automatically attach to or identify
individuals
possessing them, and necessarily the aid of some
executive
agency must be invoked."
The ordinance here in question declares the policy of the law
and
fixes the legal principles which are to control the chief of
police
in granting a driving permit. The applicant must
demonstrate
his ability to safely and properly operate motor
vehicles
upon the streets of the city, and demonstrate that he
knows
the traffic laws of the state and the city, and shall be
sixteen
years of age or over. While the ordinance provides that
no
permit shall be issued to the applicant unless his examination
by
the chief of police shall disclose that he possesses such
ability
and knowledge "*as in the judgment* of the chief of police
qualifies
such person to receive such permit," the discretion here
vested
in the chief of police is essentially ministerial and not
legislative.
But when we come to examine the provisions with reference to
revocation
of permits by the chief of police, the policy of the law
and
the legal principles which are to control the action of the
chief
of police are not determinable from the terms of the
ordinance.
The ordinance specifically provides that conviction of a
felony
or of a violation of the prohibition law shall of itself
operate
to revoke a driving permit for a period of twelve months,
and
that, if the holder of the permit shall be convicted of
violation
of the traffic laws three times within any one year, his
permit
shall be revoked for such time not exceeding one year as the
judge
of the municipal court shall determine; and it is necessarily
implied
that subsequent lack of the requisites for the issuance of
a
permit constitutes unfitness to drive on the streets of the city
within
the policy of the ordinance.
Thus far the policy of the law may be said to be declared; but
it
is clear that it is intended by the ordinance to vest the chief
of
police with authority to revoke permits for other causes, if,
*in
his opinion,* such causes render the holder of a permit unfit
to
drive on the streets of the city. But for what other causes is
it
the policy of the law that the chief of police may revoke a
driving
permit? What legal principles shall guide and control him
in
determining what other causes, characteristics, or acts or
things
done or omitted make a man unfit to drive on the streets of
the
city of Lynchburg? To what standard of conduct must the holder
of
a permit conform to be immune from the official axe? Are the
causes
for which a permit may be revoked by the chief of police
only
those which relate to the proper use of the streets and
highways
and the safety of persons and property thereon? Or does
the
policy of the law extend so far as to authorize the revocation
of
a permit because the holder has done things which have a
relation
to the general security of the property of citizens (as,
for
instance, committed petit larceny), or to the morals of the
community
(as, for instance, transported women of bad reputation
in
his automobile)? Is it the policy of this ordinance to
authorize
the revocation of a permit because the holder is not of
good
character, or because he has had an accident which caused
damage
for which he is financially unable to pay?
The ordinance has made conviction of any felony a cause for
revocation.
May the chief of police add thereto as cause for
revocation
the conviction of any misdemeanor? Or, if he may not
make
all misdemeanors case for
[586]
revocation,
then what misdemeanors may he make cause for
revocation?
The ordinance has made conviction of the holder of a permit
of
a violation of the traffic laws three times in any one year
cause
for revocation for a period not exceeding one year. May the
chief
of police in his discretion so modify this express provision
as
to make a single violation of the traffic laws a cause for
revocation?
If so, for what period of time may he revoke the
license
for a single violation of a provision of the traffic laws?
The ordinance has made conviction of a violation of the
prohibition
law cause for revocation for twelve months. May the
chief
of police add to this suspicion of or reputation of having
violated
the prohibition law as a cause for revocation?
And may the chief of police and judge of the municipal court
make
the period of revocation for causes not specified in the
ordinance
much exceed a year, or indeed perpetual, by refusing to
issue
another permit or to reinstate the permit revoked?
Certainly the ordinance itself affords no answer to these
questions
as to the scope of the policy of the law therein
declared.
It is left wide open to the uncontrolled discretion of
the
chief of police in each individual case. The principle, that
an
ordinance may use general terms in defining the declared police
of
the law and in fixing the legal principles which are to control
the
discretion of the administrative officer in administering the
law,
where the technical knowledge or sense and experience of men
render
the terms reasonably certain, has no application here; for
the
term "unfit to drive an automobile on the streets of the city"
is
clearly intended to extend beyond what can be said the technical
knowledge
or the sense and experience of men have rendered
reasonably
certain.
While the city of Lynchburg, in the exercise of its police
power,
may revoke driving permits for some cause unrelated to the
use
of the public highways and the safety of persons and property
thereon,
it must do so by legislative enactment and not by
administrative
edict.
[14] That portion of the ordinance here in question which
authorizes
the chief of police "to revoke the permit of any driver
who,
in his opinion, becomes unfit to drive an automobile on the
streets
of the city," fails to declare the policy of the law and
fix
the legal principles which are to control the discretion of the
chief
of police in the revocation of licenses in determining what
constitutes
unfitness to drive an automobile on the streets of the
city;
and is void because it delegates powers essentially
legislative
to an administrative officer.
[15] This being true, the provision that the person whose
permit
is revoked by the chief of police may apply to the judge of
the
municipal court for a reinstatement thereof cannot constitute
an
adequate remedy at law.
But it is said that a suit for injunction will not lie in the
instant
case because no property rights of the appellant have been
invaded.
Whether a right to use the public highways for the
ordinary
and usual purposes of life be a property right or not, it
is
a very valuable right, not a mere privilege.
[16, 17] The invalidity or unconstitutionality of a statute
or
ordinance is not of itself a ground of equity jurisdiction. A
court
of equity has not jurisdiction to enjoin acts only because
they
are attempted or threatened under color of an unconstitutional
or
void statute or ordinance. Further circumstances must be shown
which
bring the case within some recognized ground of equity
jurisdiction,
14 R.C.L. Injunctions, sec. 141; Coal & Coke Ry. Co.
v.
Conley et al., 67 W.Va. 129, 67 S.E. 613; but inadequacy of
legal
remedy or irreparable injury are well-recognized grounds of
equity
jurisdiction.
[18] It is recognized that an injunction will lie to enjoin
the
threatened enforcement of an invalid statute or ordinance where
the
lawful use and enjoyment of private property will be
injuriously
affected by its enforcement (Bristol, etc., Co. v.
Bristol,
97 Va. 304, 33 S.E. 588, 75 Am. St. Rep. 783; City of
Roanoke
v. Bolling, 101 Va.182, 43 S.E. 343), or where the right
of
a person to conduct a lawful business will be injuriously
affected
thereby (Parrish v. City of Richmond, 119 Va. 180, 89 S.E.
102),
unless the remedy at law be manifestly as complete and
adequate
as an injunction suit. But it has been said that it is
beyond
the scope of the powers of a court of equity to enforce
personal
rights as distinguished from property rights. 32 C.J.
Injunction,
sec. 430, p. 272.
This distinction, we think, is not well made. Fundamental
personal
rights, such as the right of a person to travel the public
highways
of the state, are not less sacred and valuable rights, or
less
subject to the protection of a court of equity, in a proper
case,
than are property rights.
An injunction suit is often a more appropriate and effective
method
of resisting the invasion of or interference with such a
personal
right under color of void statute or ordinance than any
common-law
remedy; and where the remedy at law is not as complete
and
as fully adequate as an injunction suit, or where the
threatened
or attempted enforcement of a void statute or ordinance
will
do irreparable injury to a person in interfering with the
exercise
of such a common fundamental personal right, a suit for
injunction
will lie. And, by irreparable injury is meant an injury
of
such a nature that fair and reasonable redress may not be had
in
a court of law, and that to refuse the injunction would
[587]
be
a denial of justice. High on Injunctions (4th Ed.) sec. 22.
[19] Freedom from the restraint imposed by this void
ordinance
upon the exercise of Thompson's common right to drive his
automobile
on the streets of the city of Lynchburg is the real
object
of the complainant's bill. His only remedies at law were:
(1)
To proceed by petition for mandamus to compel the chief of
police
to restore to him his driving permit, or (2) to wait until
arrested
upon the charge of driving without a permit and then
interpose
the defense that the provisions of the ordinance under
which
his permit had been taken from him were void. In the instant
case,
neither of these remedies is as complete and adequate as a
suit
for injunction to protect the complainant against the wrongful
interference,
under the color of a void ordinance, with the lawful
exercise
of his common personal right to drive an automobile; and
the
bill alleges that, unless the chief of police be restrained,
complainant
"will sustain irreparable injury in his pursuance of
happiness
and in acquiring and the use of his property."
The court erred in dismissing the bill, and the decree of the
court
will be reversed, and the case remanded to the trial for
further
proceedings thereon.
Reversed.
CAMPBELL and HOLT, JJ., absent.