22 W. Va. 106 | W. Va. | 1883
The only important question arising in this cause is, xohether the county courts of this State created by, and existing under the Constitution of 1872, ceased to exist, for all purposes of their creation from and after the adoption of the amendment of the eighth article of said Constitution, on the 12th day of October, 1880 ?
It is contended by the appellant that from and after the 12th day of October, 1880, the county courts established by the Constitution of 1872, and then existing, for all and every purpose of their creation, ceased to exist, and that by the ratification and adoption of the proposed amendment, the’said county courts were instantly and ipso facto abolished, and that any act done by them or any of them, after that day was null and void; in other words, that all actions at law or suits in equity* then pending in said cóurts on that day7 were not only transferred to the circuit courts, but that such county courts wei*e instantly and forever closed, and prohibited from exercising their constitutional jurisdiction over the police and fiscal affairs of their counties, including the establishment and regulation of roads, ways, bridges, public landings, ferries and mills, and appointing and qualifying personal repre-rentatives, guardians, committees, curators, and settling their accounts, and in cases of contest, of judging of the election, qualification and return of their own members, and of all county and district officers, of which they possessed under the Constitution of 1872, and of which they were not divested by the said amendment, nor was the same thereby transferred to any other tribunal.
Can this proposition bo maintained ? Is this Court upon a fair construction of said amendment, constrained to hold, that from the 12th day of October, 1880, to the 1st of January, 1881, no court could exercise jurisdiction over any of the subjects theretofore committed, by the Constitution and laws then in force, to the exclusive jurisdiction of the said county courts ?
The only material changes made by said amendment in regard to the county courts then established, and existing under the Constitution of 1872, are, that from and after the 1st day of January, 1881, the said courts should no longer be composed of a -president and two justices of the peace, but instead thereof, said county courts should be composed of three commissioners, whose election is therein provided for, who shall continue in office six years, and who, while required to hold four instead of six regular terms in every year, they are divested ot jurisdiction over all subjects, except those particularly specified in the twenty-fourth section of said amendment.
The first section of the eighth article of the Constitution ot 1872, declared that the judicial power shall be vested in a Supreme Court of Appeals,' and in circuit courts, and the judges thereof; in county courts and in justices of the peace. The twenty-third section of said article declared, “there shall be in each county of the State a county court, which shall be composed of a president and two justices. It shall hold six terms during the year, two of which shall be 'limited to matters connected with the police and fiscal affairs of the county, the other four shall be held for the trial of causes, and for the transaction of all other business within the general jurisdiction of the court, except an assessment or levy upon the property of the county.” Section twenty-seven of said article declared that “the county court shall have original jurisdiction in all actions at law, where the amount in controversy exceeds twenty dollars, and also in all cases in habeas corpus, quo warranto, mandamus,prohibition and certiorari, and in all suits in equity. It shall have jurisdiction in all matters of probate, the appointment and qualification of personal representatives, guardians, committees and curators, and the settlement of their accounts, and in all matters relat
In this connection it may be proper to remark, that while, such extensive jurisdiction, was by the Constitution of 1872, given to' the county courts, yet the Legislature by the same article conferring said jurisdiction, was vested with unlimited power and authority to limit or take away the whole or any portion of such jurisdiction, whenever in its wisdom, it might deem necessary to do so, and such limitation when made by the Legislature, needed no ratification by the voters of the State. It could at its will and pleasure restrict, limit or take aioay whole of such jurisdiction, whenever it deemed the public wellfare desired it; and a subsequent Legislature could have restored it.
This jurisdiction so conferred on the county courts, with very few exceptions, was co-equal, as well as concurrent, with the jurisdiction conferred on the circuit courts, and was in many respects superior to it — as over many subjects, the jurisdiction of said county courts, ’was practically an exclusive jurisdiction. The said county courts, on the 12th day of October, 1880, were by virtue of the laws then in force in the full exercise of all this jurisdiction. They admitted wills to probate, they appointed and qualified personal representatives, guardians, committees and curators, and settled their accounts; they heard and determined con
. The act of the Legislature passed on the 7th of March, 1879, providing for the submission of the said amendment to the voters of the State, which must be taken and held to perform the purpose of a schedule to said amendment, declares (sec. 2} that 'hill the provisions of the law relating to general elections'so far as applicable shall apply to the election hold under the provisions of this act, except where it is otherwise provided therein.” ' *The returns of said election could not be laid before the Governor, to ascertain and proclaim the result, until thé 25th day after said election, which was ón Saturday, the 6th day of November, 1880, before which last named day the 'November terms of the county courts of the counties of Cabell, Fayette, Hardy, Jackson, Mason, McDowell and Taylor, would'have commenced, or passed; and before
It is apparent from the provisions of this act of the Legislature that it thereby recognized the continuing authority of the said county courts and of the officers appointed by them to conduct said election, and to ascertain the result thereof in regard to all county and district officers, including among them the said commissioners who are county officers. And as the greater aiioays includes the less, it recognized the authority of said county courts to do all acts necessary to be done, in order to ascertain and certify the correct result of said election for every county and district officer in case of a con
As if to remove all doubt on this point as to what laws should control this election, the twenty-first section of said amendment declares, “ That such parts of the common law, and the laws of this State as are in force when this article goes into operation, and are not repugnant thereto shall be and continue the law of this State until altered or repealed by the Legislature.”
We are of opinion, that a fair construction of the several provisions of the amendment itself, will fully sustain these views, and will show that the effect of said amendment was not, instantly and absolutely, upon its adoption, to abolish and destroy the old county courts, and prohibit them from the exercise of so much of their former jurisdiction as was not
By the first clause of the nineteenth section of the amendment, the twenty-second section of the eighth article of the Constitution of 1872, is substantialy re-adopted, or, perhaps more correctly speaking, the said twenty-second section remains unchanged and the Legislature is authorized “to establish courts ot limited jurisdiction within any county, incorporated city, town or villiage;” and by the second clause of said nineteenth section, of said amendment, it' is declared “ that all courts of limited jurisdiction heretofore established in any county, incorporated city, town or villiage, shall remain as at present constituted, until otherwise provided by law.” Now it was well known to the Legislatnre when this amendment was proposed, that no court of limited jurisdiction in the proper sense of that term, existed, or could have been created in any county of this State. No authority existed under the Constitutions of 1863 or 1872 for the creation of courts of limited jurisdiction, in any county of this State, and therefore none ever existed. The power to create such courts was, by both of said Constitutions confined to “incorporated toions, or cities.” As in the construction of statutes, and especially of all constitutional provisions, some meaning consistent with the general purpose of the whole instrument, is if possible to be given to every clause, sentence and word, contained therein, we are bound to conclude that when the Legislature by the second clause of said nineteenth scetion of said amendment, declared that “ all courts of limited jurisdiction heretofore established in any county ” &c., “ shall remain as at present constituted until otherwise pro-vived by law,” that it did not use the expression “ courts of limited jurisdiction,” in its strict legal technical sense, — but in the sense of an “inferior tribunal,” designated in the first section of said amendment, as one “therein authorized;” and
This conclusion is rendered almost irresistible, when we examine the provisions of the twenty-fourth section of said amendment which in express terms continues in existence such tribunals then existing, as had been theretofore established, for police and fiscal purposes, in lieu of the county courts,‘by virtue of the thirty-fourth section of the eighth article of-the Constitution of 1872.
Such court, at the time said amendment was proposed, existed only in the county of Ohio — 'although the Legislature at the same session authorized similar tribunals to be established in the counties of Preston and Pendleton, and in no others. In all other counties the county courts established by the Constitution of 1872, alone existed and they all had, and exercised the superintendence and administration of the internal police and fiscal affairs of the several counties, and also in all contested cases they were required to judge of the election, qualification and return of its own members and of all county and district officers.
Why should these tribunals established in lieu of the county court for police and fiscal purposes'be continued in existence as then constituted until otherwise provided by law, unless it was understood and intended that in the other counties, the county courts were also continued in existence to the same extent, and the same purpose?
By the 22d, 23d and 24th sections of the amendment, it is provided that “there shall be in each county of the State a county court” — the precise words of section 23 of article 8, of the Constitution of 1872 — in the one case to be composed
From these premises, it follows that the contestant, Fowler, rightfully filed his notice of contest in the county court of Summers county at the November term thereof, 1880, and that said court thereby obtained and had rightful jurisdiction to hear and determine the same in accordance with the laws then in force on that subject, and that the said court should
The said judgment of the circuit court of Summers county is therefore affirmed, with costs to the appellee and thirty dollars damages.
Judgment Aeeirmed.