79 W. Va. 101 | W. Va. | 1916
The inquiry raised by this application for a writ of prohibition to restrain a judge of a circuit court, from proceeding upon a rule in prohibition issued by him, is whether prohibition lies from the circuit court of a county, to prevent the county court thereof from ordering an election, on a petition deemed by it to be sufficient, to determine the will of the voters of the county, upon the question of relocation of the county seat thereof.
' The function performed by a county court, in calling such an election, is a purely ministerial one. Doolittle v. County
A statute, sec. 45, eh. 39, Code, giving the remedy against county courts in very broad terms, reads: ‘ ‘ The circuit court of any county may, by writ of prohibition, prevent the county court of such county from exercising any jurisdiction or authority which is not conferred on it by law or necessary and proper for carrying into execution the power so conferred; and may, by a writ of mandamus, enforce the performance of any legal surety of such court.” Though passed in 1873 and operative since that date, this statute has never before been relied upon or invoked as authority for jurisdiction in a circuit court to restrain ministerial action of a county court, by the writ of prohibition. At that date, as well as now, some judicial power was vested in county courts, and it may have been the legislative purpose to subject them to the writ of prohibition only so far as to confine them within the limits of their judicial power. Notwithstanding the broad terms of the statute, this court held in Williamson v. County Court, 56 W. Va. 38, that the appointment of election commissioners by a county court, was an administrative or ministerial act and, therefore, could not be interfered with by the writ of prohibition. In Fleming v. Commissioners, 31 W. Va. 609, prohibition was declared to be a remedy applicable only to the unlawful exercise of a judicial function, and mere ministerial, administrative or executive acts not to be within its province. While the' statute was not adverted to in these decisions and others affirming the proposition, it cannot well be supposed that its existence was unknown, and it may well'be assumed that the court did not regard the general terms of the provision as signifying any intention to innovate upon established and rather fundamental principles of government, to the extent of authorizing courts to interfere with ministerial functions. Such power is not given in specific language. The circuit courts are empowered by writ of prohibition to pre
If the court narrowed the operation of the statute, in view of the generality of its terms, as it seems clearly to have done, the construction adopted harmonizes with a rule very generally recognized. “Statutes are sometimes extended to cases-not within the letter of them; and cases are sometimes excluded from the operation of the statute, though within the letter; on the principle that what is within the intention of the makers of the statute is within the statute, though not within the letter; and that what is not within the intention of the makers is not within the statute; it being an acknowledged rule in the construction of statutes, that the intention of the makers ought to be regarded.” Brown v. Gates, 16 W. Va. 131. Matters falling within the general terms of a statute are frequently excluded from the operation thereof, to avoid innovation upon settled principles of public policy or general systems of law, which it is presumed the legislature did not intend to disturb, in the absence of terms specifically expressing intention to do so. Brown v. Gates, cited, Reeves v. Ross, 62 W. Va. 7; Conley & Avis v. Coal & Coke Ry. Co., 67 W. Va. 129.
It would be difficult to name a principle more generally recognized or undeviatingly adhered to, than the one this statute would break in upon, if given the effect its terms literally import. Very few of the states have passed statutes encroaching upon it. In Idaho, it seems to have been deemed necessary to find in the constitution warrant of legislative power validly to extend the remedy to purely ministerial officers and acts. Williamson v. Lewis, 54 Pac. R. 619. In other courts, as well as this, the rule seems to be regarded as fundamental and almost, if not quite, organic. Spelling, Ex. Rem. secs. 1718, 1722; 32 Cyc. 602; 16 Ency. Pl. Pr. 1102.
At the present term of this court, the co-respondents of
Upon the principles and conclusions here stated, the writ of • prohibition prayed for will be awarded.
Writ Awarded.