The Wheeling intelligencer. [volume] (Wheeling, W. Va.) 1903-1961, 1921-03-10
JUICE L|VELY'S OPINION
IN CONSTANZA TRUCK CASES

BeIog Is published the opinion Of the
.urrcur court Of appeals OF West Nlr-
rrn;;L written by JuCt-;e Lively. IN which
Jpstic, Of the Peace John ". ktndcl-
h,-rer and tho criminal court - OHIO
county are restrained tom proceeding
with prosecution IN the cas-" OF FRANK
CoStanza Warwood and St CAlrSNiIlc
coal and truck operator. Wh.sc proSecu-
ton ON a charge OF overlooking coal
truck was inauEurotcd IN Squire hlndeI-
berycr'S court by Hon. Sol White. agent
q the West Virginia highway commits
sion. The opinion. a copy OF which ";IS
furnished for publication by Tom y
Foulk one Of CostanIs's attorneys. IN
tull follows:
State ex rel. Frank Costanaa ~. John
W. kind1ocrger. J. =. etc. IT al.
In prohibition. Writ awarded.
Lively judge.
!. \ warrant FOR the arrest OF, PER
son charging him with operating upon
tho public roads q vehicle tn" weight
OF which. including n" load thereon. Is
more than six hundred pounds TOR inch
width Of tire. the total width Of the four
tires being included n computing he
weight thereof. does not charg" viola
ton Of law under the provisions Of
motion 70 Quash should prevail
>. In such case the justice % the
peace and the appellate court. II an APP
peal be awarded from the justices court.
are without jurisdiction. and prob ibit;0n
will lie at the instance OF the accused.
although the appellate court has not
passed upon the question OF jurisdiction
and although the accused has some
other adequate remedy.
,Kindc,berEer. a justice Of the peace
Of Ohio county. on February l.. 1921.
issued warrant for Costanza. Charc-
ing him with operating and driving upon
the county roads OF that county and
upon the streets Of the city OF Wheel
ing motor vehicle the weight OF which.
Including the load. was more than COO
pounds per inch width OF tire. the total
width OF the four tires being included
in computing the weight thereof. At the
trial his counsel moved TO QuaSh the
complaint and warrant. which motion
being overrulcd. defendant refused 10
plead. The justice catered the plea or
not guilty for him. heard the evidence.
found defendant guilty. hned him $lHn
and sentenced him to ten days n jail
At hard labor. Defendant gave bond and
appealed 10 the Crimina, court 90 Ohio
county. where the case IS now pending.
and Immediately applied TO this court
for, and obtained. this rule In prohibit
ton against Hon. y IL. Robinson, judge
OF the criminal court. ~ show cause
why nc should not b" prohibited from
hearing or trying the case.
Constance asserts that the warrant
does not charge him with Tho commits
sion Of an otense against thr laws Of
this state: that 10 has committed no
orr"nse; and that the justice and Grim
lnal court ar" without jurisdiction Tor
that reason.
The statute under which this warrant
was issued and on which tho HroSecu-
ton IS predicted. IS see. l26 OF chap.
SIS. Acts. 1917. the pertinent portion OF
which reads NO vehicle n excess 10
ninety inches in width shall hc opcr-
.,,ed upon The highways Of this state
nor shall any vehicle. ;nclud-
ing load. exceeding thirty thousand
pounds in weight. or on which tho
weight OF the load - more than six
hundred pounds per inch width Of tire.
the total width OF the four tires being
included IN computing the weight
thereof be operated uNon the high
ways OF this state. unless By special
permit from one Of th" authorities
herein before designated. and then only
upon highways specially constructed
for heavy traffic
TIE state asserts that il was the in
tention OF the legislature IN this Act
20 rrotsrt the roads and streets from
destruction. and tina; no more than ono
pounds PEI inch width Of tIre. including
weigh, Of car and load, Shou,d l." per
r,jtted; and that the section quoted
should be construed 20 read. nor ShH.
any vehicle. including load. exceeding
~ de on 81
more than 500 pounds ner inch width OF
.ire. the total width Of the four tires
being included in compGt;ag tho weight
.hcreor ."
The main reason confidently relied
upon by the stat" for d!ScEarCiUS :hc
rule IS TIA, prohibition IS not the
proper remedy. The uses and purposes
y. rroh:bition and tho class Of saScs in
which the writ Will issue have been
under disCuSSio ion SO often and 50 recent
" in th!s court. and the holdings a."
~ wei! settled that i would serve no
useful purpose to review the cases or
rnitcra,~ the principles cnunciat"d. In
all cases. when the !ncc:Ior court has
NOT the jurisdiction OF tho subject MAJ
,Cr In controversy. tho VII: W. .ie
THIS = the very language Of IN" Sta'u;c
and IS but dHclarltory Of The C"iHm"n
'aw Now wha, is the rule fn" deter
mining jurisdiction" Docs tbs war
rant charge an ofr"nSr" II it docs
,Ncr the criminal court Will have juriS-
dic,jon 70 try all matters Of Ian aNd
fac, arising therein. Un.eSs - should
cyrcad it Legitimate powers whit. do
ny So II there - 20 OH"nSN rhatg"d
,Hcn there - no jurisdiction. Hu' =
: argued that the criminal cour:
should first determine whether an Of
fanSn Is charged. and whether = Will
assume Jurisdiction. AMI. Il rr"chance
~" court should tahe Jurisdiction. 70
fuse 10 discharge Contanza. try n"
case and find him guilty. ir"n a W. "t
error would lilo and thai prnr"dur"
would hc tn" p-oprc course. iuS,"ad -
invoking rho extraordinary remedy az
prohibition. II" answer :" th:s IS that