"Thompson vs. Smith, 154 S.E.

579 at 583"
"The right of the citizen to travel upon the
public highways and to transport his property thereon,
either by carriage or by automobile, is not a mere
privilege which a city may prohibit or permit at will,
but a common law right which he has under the right to
life, liberty, and the pursuit of happiness.

THOMPSON v. SMITH

155 Va. 367 (Va. 1930)

THOMPSON
v.
SMITH

Supreme Court of VirginiaSep 11, 1930155 Va. 367 (Va. 1930)Full title

September 12, 1930.

Syllabus.

1. AUTOMOBILES — Permits — Perpetual Permit — Revocation — City's Right to Regulate Use of Streets
a Continuing Power. — An ordinance providing for the granting of permits to automobile drivers
provided that the permit should "be perpetual unless revoked as provided in this chapter." No provision
was made in the chapter for revocation of the permits; therefore, it was contended that the city could
not thereafter by amendment of the ordinance provide for revocation of the permits. But 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; therefore, there is no merit in this contention.

2. AUTOMOBILES — Permits — Exercise of Police Power not to be Abridged. — The issuance and
revocation of permits to automobile drivers 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, section 159, expressly provides that "the exercise of the
police power of the State shall never be abridged." Consequently, although the ordinance under which a
permit is issued states that it shall be perpetual, by amendment or later ordinance the city may provide
for the revocation of the permit.

3. AUTOMOBILES — Permit to Drive Automobile — Municipal Ordinance Pro-viding for Revocation of

Permit — Judge of Municipal Court Acts as Administrative Officer as to Reinstatement of Permit. — A city
ordinance authorized the chief of police to revoke the permit of any driver who, in his opinion, becomes
unfit to drive, but further provided that the holder might apply to the judge of the municipal court to
have his permit reinstated. 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.

4. AUTOMOBILES — Permit to Drive Automobile — Municipal Ordinance Pro-viding for Revocation of

Permit — Judge of Municipal Court Acts as Administrative Officer as to Reinstatement of Permit — Right
of Application for Reinstatement not Adequate Remedy at Law. — If the provision of an ordinance
authorizing the chief of police to revoke a driver's permit, when he deems the driver unfit to drive, is
void, because it is a delegation of legislative power to an administrative office and vests the chief of
police with an arbitrary discretion, the provision of the same 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; 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 reinstatement cannot constitute an
adequate remedy at law.

5. STREETS AND HIGHWAYS — Right of Citizen to Travel and Transport Property — Use of Ordinary
Vehicles. — 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 use the ordinary and usual conveyances of the day. This right is not a mere
privilege which a city may permit or prohibit at will.

6. STREETS AND HIGHWAYS — Right of Citizen to Travel and Transport Property — Use of Ordinary
Vehicles — Police Power. — The right of a citizen to travel and transport property and to use the
ordinary and usual conveyances of the day may, under the police power, be regulated by the city in the
interest of public safety and welfare; but the city 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.

7. AUTOMOBILES — Drivers' Permits — Arbitrary Revocation. — 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.

8. AUTOMOBILES — Exercise of Right to Drive — Granting and Revoking Permits — Arbitrary Discretion.
— The doctrine that when the State or city has the power to prohibit the doing of an act altogether, it
has the power to permit the doing of the act under any condition, or subject to any regulation, however
arbitrary, has no application to a permit issued for the purpose of regulating the exercise of the common
right to operate a private automobile on the streets of a city.

9. PUBLIC OFFICERS — Powers of Administrative Officers — Legislation by Administrative Officers. — 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. It is the prerogative of the
legislative branch of the government to determine and declare what the law shall be, and the legislative
branch may not delegate this function to executive or administrative officers. 10. Public Officers —
Powers of Administrative Officers — Discretion of Administrative Officers. — The principle that the rights
of men are to be determined by the law itself and not by administrative officers does not mean,
however, that no discretion can be left to administrative officers in administering the law. Government
could not be efficiently carried on if something 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.
This is particularly true where the discretion to be exercised relates to police regulations. But the
reasonable discretion which may be vested in city 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.

11. PUBLIC OFFICERS — Discretion of Administrative Officers — Delegation of Legislative Power — Test.
— 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.

12. PUBLIC OFFICERS — Discretion of Administrative Officers — Delegation of Legislative Power —

Details Ministerial. — 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.

13. AUTOMOBILES — Permits to Drive — Chief of Police to Grant Permits — Validity of Ordinance —
Discretion of Chief of Police Ministerial or Legislative. — Where an ordinance provides that no permit
shall be issued to an applicant unless his examination by the chief of police discloses that he possesses
such ability and knowledge to safely operate an automobile as in the judgment of the chief of police
qualifies the applicant to receive such permit, the discretion vested in the chief of police is essentially
ministerial and not legislative.

14. AUTOMOBILES — Permits to Drive — Revocation of Permit — Grounds for Revocation — Unfit to
Drive. — An ordinance, after specifying a number of causes for which the permit of a driver might be
revoked by the chief of police, further authorized and directed 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," with
the right to the holder of the permit to apply to the judge of the municipal court to have it reinstated.
Held: That this provision of the ordinance as to revocation where a driver is deemed "unfit" failed to
declare the policy of the law and fix the legal principles which are to control the discretion of the chief of
police and is void as a delegation of legislative powers to an administrative officer.

15. ORDINANCES — Delegation of Legislative Powers to Administrative Officer — Ordinance may Use
General Terms — Revocation of Permit of Driver when Driver is Deemed Unfit to Drive. — An ordinance
may use general terms in defining the declared policy of the law and in fixing the legal principles which
are to control the discretion of administrative officers in administering the law, where the technical
knowledge or sense and experience of men render the terms reasonably certain, but this has no
application to an ordinance permitting the revocation of a permit to drive an automobile by the chief of
police, when in his opinion the driver becomes unfit to drive.

16. AUTOMOBILES — Permits — Revocation for Matters Unrelated to the Use of the Highway. — While a
city, 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.
17. STREETS AND HIGHWAYS — Right to Use the Public Highways — Whether Property Right. —
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.

17. STREETS AND HIGHWAYS — Right to Use the Public Highways — Whether Property Right. —
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.

Appeal from a decree of the Corporation Court of the city of Lynchburg. Decree for defendant.
Complainant appeals.

Reversed.

The opinion states the case.

A. S. Hester, for the appellant.

T. G. Hobbs, for the appellee.

Absent, Campbell and Holt, JJ.

EPES, J., delivered the opinion of the court.

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 sub-section "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 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 sentences of sub-section "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, 1925, 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 second 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 anyone
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
sub-section " 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 right of the citizen to travel upon the

public highways and to transport his property thereon,
either by carriage or by automobile, is not a mere
privilege which a city may prohibit or permit at will,
but a common law right which he has under the right to
life, liberty, and the pursuit of happiness.

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, 2] The contention made by the appellant that 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, therefore, 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." (Constitution Virginia, section 159.)

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 upon by the appellee is not good.
[3, 4] 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 Pac. 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.

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 use 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.

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. 1915-F, 840; Hadfield v. Lundin, 98 Wash. 657, 168 Pac. 516, L. R. A. 1918-B, 909,
Ann. Cas. 1918-C, 942.

[7, 8] 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 other 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 Atl. 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 Atl. 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 bawdy-house, 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 automobile on the streets of a city, in the usual and ordinary way, to transport the
driver's person and property.

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.

This does not mean, however, that no discretion can be left to administrative officers in administering
the law. Government could not be efficiently carried on if something 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 in provision and detail. Block v. Chicago, 239 Ill. 251, 87 N. E. 1011, 130 Am. St. R. 219;
Mutual Film Corp. v. Ohio Indus. Comm., 236 U. S. 239, 35 Sup. Ct. 387, 59 L. Ed. 552, Ann. Cas. 1916-C,
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 exercise 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 its 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 power
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 legislation, 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.
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 Sup. Ct. 387, 392, 59 L. Ed. 552, Ann.
Cas. 1916-C, 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 applicable 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 Pac. 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
terpitude, 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. 1917-F, 514, Ann. Cas.
1917-C, 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 shall 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 determined or 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 cause for 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 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?

[14-16] 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
policy 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.

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.

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.

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, section 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.

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., Injunctions, section 430, page 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.

[21, 22] 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 be a denial
of justice. High on Injunctions (4th Ed.), section 22.

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 court for further proceedings thereon.

Reversed.

How cited

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