26 W. Va. 62 | W. Va. | 1885
For a proper understanding of the legal questions involved in the record in this case it is necessary to give a brief history of the statute-law in Virginia and this State in reference to the establishment of public roads. By chapter two hundred and thirty-six of the Devised Code of 1819, vol. 2, p. 233, it was provided, that, when any persons shall apply to the county court to have a new' public road opened, the court shall appoint three viewers, w'ho being sworn should view' the ground and report the conveniences and inconveniences, which would result to individuals and to the public, if the public road should be opened. On the return of the report, it the county court was of opinion, that the road should be opened, it was required to summon the proprietors and tenants of the land, through which the proposed road would pass
This act was amended afterwards particularly by the act passed February 15, 1833, (Acts 1832-4, p. 54) and by the act passed January 30, 1834, (Acts of 1833-4, p. 97.) On March 3, 1835, an entirely new law was passed providing for opening and repairing public; roads (Acts of 1834-5 p. 56;) and this act was amended by an act passed March 30, 1837, (Acts of 1836-7 p. 80) and further by an act passed March 31, 1838, (Acts of 1838 p. 90.) I do not deem it necessary to state the contents of these several acts. It will suffice to state the provisions of chapter fifty-two of the Code of Virginia, p. 266, showing the change which had been made. By section six of this chapter it is provided, that when any person applied to a county court to have a public road established, the court should direct one or more of its commissioners of roads (if it had any such officers), or it might appoint three or more viewers, to view the ground and report to the court the conveniences and inconveniences, which would result as well to individuals as to the public, if such road was established, and especially whether any yard, garden, orchard or any part thereof would have to be taken. The seventh section specifies the details to be set out in this report. By section eight it was provided, that upon this report being made, unless the court should be against establishing the road, the proprietors and tenants of the land should be sum
Under the different constitutions of Virginia prior to that time the county courts had not only existed, but they possessed very extensive powers administering the internal public affairs of the counties, regulating roads, ferries and mills, and exercising jurisdiction in all probate matters. But they also had very extensive jurisdiction in the trial not only of civil and criminal matters but also a very large jurisdiction in the trial of chancery causes. In fact they always had had more extensive original jurisdiction than any coui't in Virginia. When this State was formed, by its first constitution a very small portion of this extensive jurisdiction of the county courts was transferred to the boards of supervisors and the recorders then first called into existence. They were authorized to administer the internal and police affairs of their counties and had under their control the establishment and regulation of roads, public landings, ferries and mills. But they^ had no jurisdiction to try any civil or criminal action, nor had they any chancery jurisdiction. In fact the board of supervisors under our first constitution hardly reached the dignity of a court, though some powers conferred on them were semi-judicial. By' this first constitution (Code, p. 32)
The legislature of this State at its first session after the adoption of our first constitution passed on .December 4, 1863, “ an act providing for the construction and repairs of roads and bridges,” (chapter 120 of Acts of 1863 p. 178.) One of the provisions inserted in this law rendered necessary by our constitution was contained in the ninth section of said chapter one hundred and twenty. It was thereby provided, that, if the board of supervisors and any proprietor did not agree as to what was a just compensation, “ a writ of ad, quod damnum, should be awarded, if desired by any proprietor or tenant, or if the board of supervisor should see cause to apply for the same. Such writ should be awarded by the circuit court commanding the sheriff to summon and impanel a jury of twelve freeholders of the county not related to either party to meet on the lands of such proprietors and tenants, as may be named in the writ, at a certain place and day also therein specified, of. which notice should be given by the sheriff to such proprietors and tenants;” and by the twelfth section of this act it was provided, “ that, when this jury had agreed upon its verdict or inquest, it should be signed by the jurors and returned by the sheriff together with the writ to the circuit court, which should, if satisfied it was in conformity with the law, return the same to the board of supervisors, who should determine, whether the road should be established as proposed.” Some slight changes were made in this law, and it finally took the form, in which it appeal’s in the Code o? West Virginia, chapter forty-three. It provided, that the petition for the establishment of a public road instead of being addressed to the county court was to be addressed to the board of supervisors, who were thereupon required to appoint two or more viewers or a committee of their own body to view the ground and make such report, as had been previously required. See ch. 43 of Code of W. Va. § 35, p. 274. And the board of supervisors were thereupon,
But by our constitution of 1872 the board of supervisors was abolished ; and county courts were again established with jurisdiction and powers resembling those, which county courts had under the constitution and laws of Virginia prior to the formation of this State. By Article VIII, section 27 (See Acts of 1872-3 p. 30) there was conferred upon these courts jurisdiction among other things “in all actions at law, when the amount in controversy exceeds $20.00; in all eases of habeas corpus, mandamus, prohibition, certiorari and in all suits in equity. And by section 28 of Article VIII (p. 30) they had among other things “the superintendence and administration of the internal police and fiscal affairs of the county, including the establishment and regulation of roads, ways, bridges, public landings, ferries and mills with authority to levy and disburse the county levies.” An examination of
The adoption of this constitution of course required a change in the manner of establishing public roads. The new road-law is contained in chapter one hundred and ninety-four of Acts of 1872-3, passed December 22, 1872, and the mode of establishing public county roads was set out in section 29 et seq., p. 572. The mode adopted was in most respects similar to that adopted in chapter 52 of the Code of Virginia of 1849, section 6 et seq., p. 267, &c., modified by the adoption of some of the provisions of chapter 43, section 35 et seq., of Code of West Virginia p. 274, &c. But no provision was made for having the proposed road viewed in any case by a commissioner of the county as provided in the Code of Virginia of 1849. But the view was to be made “by two or more viewers or a committee of their own body.” Section 35 of chapter 194 of Acts of 1872-3, p. 572, adopting in this respect the provisions of chapter 43 of Code of West Virginia, section 35 p. 274. The viewers being appointed by the county court instead of the board of supervisors or the committee being a committee appointed by the county court or being a committee of the body of the county court instead of the body of the board of supervisors. On the other hand when there was no agreement between the court, and any tenant or proprietor as to the compensation to which he was entitled, if the road was to be established, this act of 1872-3 provided that the county court should at the insistance of such proprietor or tenant award a writ of ad quod damnum returnable to the county court to ascertain the just compensation of such tenant or proprietor, and after its return the county court upon the report, the inquest of the jury and other evidence should decide, whether the road should be established.
But on the second Tuesday in October, 1880, an amend-mejnt was adopted to the Constitution of West Virginia (Acts of 1883, p. 189,) which, while it did not abolish the county courts, stript them of almost all powers excepting only those, which under the first Constitution of West Virginia had been conferred on the board of supervisors and upon the recorder. This very limited jurisdiction is thus defined in the first amendment (Article XHL, section 24, page 194 of Acts ol 1883): “ They shall have jurisdiction in all matters of probate, the appointment and qualification of personal representatives, guardians, committees, curators, and the settlement of their accounts, and in all matters relating to apprentices. They shall also, under such regulations as may be prescribed by law, have the superintendance and administration of the internal police and fiscal affairs of their counties, including the establishment and regulation of roads, ways, bridges, public landings, ferries and mills, with authority to levy and disburse the county levies.” These several powers were by the first Constitution of West Virginia conferred on the board of supervisors, (Article NTT., section 4), or on the recorder. (Article VIL, section 6 of Code, pages 32, 33.) There was however one diversity, to which I would call attention. The fourth section of Article VII. of the first Constitution (Code, p. 32) provided expressly that “ all writs of ad quad damnum shall issue from the circuit court.” In the amendment to the Constitution of 1880, nothing is said about writs of ad quod damnum. It is silent as to the court from which they shall issue. But after setting out these semi-judicial duties, which under the first eonsti-tiou had been performed by the board of supervisors and by the recorder, and conferringj urisdietion with reference to them on the county courts, it adds: “Such courts may exercise such other duties not of a judicial nature as may be prescribed by law. (Acts of 1883, p. 195.) After the passage of this amendment of the Constitution in 1880, the next Legislature on March 12, 1881, passed an act concerning roads, bridges and .landings, reviving, amending and re-enacting chapter forty-
The last section of this chapter fourteen of Acts of 1881 is as follows: “All acts and parts of acts coming within the purview of this chapter and inconsistent therewith are hereby repealed, except the act passed December 20, 1873, entitled ‘ an act providing an alternative method of constructing and keeping in repair county roads/ an act amendatory and in aid thereof, shall not in any wise be affected by this act.” Acts of 1881, p. 167. Did this chapter fourteen of Acts of 1881 operate a repeal of section thirty-eight el seq. of chapter one hundred and ninety-four of Acts of 1872-3, which provided that where “ the compensation to be paid to any proprietor or tenant is not fixed by an agreement, the county court shall award a writ of ad quod damnum if desired by any proprietor or tenant,” and directing the mode of proceeding un
Upon the hearing of this case by the county court on June 5, 1882, the defendants by their counsel moved the court to award a writ ad quod damnum to issue from the county court returnable to it pursuant to this thirty-eighth section of chapter one hundred and ninety-four of Acts of 1872-3. The court overruled the motion and refused to award the writ ordering in lieu thereof, that proceedings should be instituted and pi’osecuted in the name of the county court of Hancock in the circuit court of said county to ascertain, what would be a just compensation to these tenants and proprietors pursuant to the thirty-eighth section of chapter fourteen of Acts of 1881. The county court obviously regarding this chapter fourteen of Acts of 1881 as repealing chapter one hundred and ninety-four of Acts of 1872-3, or at least as repealing the thirty-eighth section of this act, which directed the county court to award said writ of ad quod damnum,. Hid the county court err in this conclusion?
It is true, that a statute general in its terms and without negative words will not be construed to repeal by implication the particular provisions of a former statute, which are special in their application to a particular case or class of cases, unless their repugnancy be so glaring and irreconcilable as to indicate the legislative intent to repeal. (Railroad Co. v. Hoard, 16 W. Va. 270;) and a construction of a statute, which repeals former statutes or laws by implication and changes long approved remedies, is not favored by the courts. (Farqueran v. Donnally, 7 W. Va. 115, syl. 8.) But a subsequent statute, revising the whole subject-matter of a former one and evidently intended as a substitute for it, though it contains no express words to that effect, must on principles of law as well as in reason and common-sense operate to repeal the former. This was held in Trustees of Philip’s Academy v. King, Executor, 12 Mass. 545. Hollowing this principle the court in the case of King v. Carter, 4 Burr. 2026 decided, that a former statute which inflicted a penalty
So in Nichols v. Squire, 22 Mass. 168, (5 Pick.) it was decided, that the statute of 1785, chapter twenty-four respecting lotteries was repealed by statute of 1817, chapter one hundred and ninety-one, as the latter covered the whole subject-matter of the former statute. By the statute of 1817 the selling of tickets in any lottery not granted or permitted by the Commonwealth was prohibited under severe penalty ; and when the legislature imposes a second penalty for an offence, whether that penalty is smaller or larger than, the former one, a party can not be allowed to recover one or the other at his option.
The same principle was acted on by the Supreme Court of the United States in Morris v. Crocker et al., 13 How. 210, (54 U. S. 429), where it was held, that the fourth section of the act of Congress of February 12, 1793, entitled “ An act respecting fugitives escaping from justice and persons escaping from the service of their masters,” is repealed, so far as relates to the penalty, by act of Congress of September 18,1850, entitled “ An act to amend and supplementary to the above act.” This conclusion is based on this ground, to use the language of the court: “ The recent statute covers every offence found in the former act, which subjects the offender to a penalty of $500.00 and prescribes a new and different penalty recoverable by indictment.” The principles deducible from the Massachusetts cases and followed in these old English cases and acted upon in this case by the Supreme Court of the United States, it seems to me, must govern in determining the question which I am now discussing, rather than the principles laid down in the West Virginia cases above cited, which seem to me, to be inapplicable to the question under consideration. The principle, which, it seems to me, must govern in determining the question I am considering, is expressed in the case of the Trustees of Philips’ Academy v. King, Executor, quoted above. This seems to me obvious, when we bear in mind, that chapter forty-three of
“If the compensation to be paid to any tenant or proprietor be not fixed by agreement the county court shall order proceedings to be instituted and prosecuted in the circuit court of the county pursuant to the forty-second chapter of the Code of 'West Virginia to ascertain what will be a just compensation to such proprietor or tenant for the lands proposed to be taken.”
This for the reasons, which I have stated, was evidently intended as a substitute for the thirty-eighth section of chapter one hundred and ninety-four of Acts of 1872-3, which provides, that, if the compensation to he paid to any proprietor or tenant be not fixed by agreement, the county
“Either party may demand, that the question of compensation to be paid shall be ascertained by a jury of twelve freeholders selected and empaneled for the purpose.”
This provision was not originally in chapter forty-two of the Code. It became necessary to insert it because section nine of Article III. of the Constitution of 1872 provided “that when required by either of the parties such compensation shall be ascertained by an impartial jury of twelve freeholders.” After section seventeen of Acts of 1842 was thus amended by chapter eighteen of Acts of 1881, the mode of instituting proceedings in the circuit court according to chapi-ter forty-two of the Code became substantially the same as by the writ of ad quod damnum. And hence the conclusion I have reached, that these piroceedings in the circuit court were intended as a substitute for the writ of ad quod damnum in the county court, is made still more certain; for the Legislature would hardly have intended, that two
There is therefore no weight in the argument of the counsel for the plaintiff in error, that as the writ of ad quod dam-num was an ancient common law remedy, which had long been used, it ought not to be supposed to be abolished by chapter fourteen of Acts of 1881, unless its abolition was expressly declared; for what is substantially the same has been substituted for it. The county court therefore did not ei:r in refusing to award a writ of ad quod damnum to the plaintiffs in error, and -in ordering proceedings to be instituted and prosecuted in its name in the circuit court of Hancock county. These proceedings in the circuit court were regular andpfoper. The tenants having excepted to the report of the commissioners were allowed a jury of twelve freeholders according to law, w'ho returned their verdict; and a judgment was rendered pursuant to this verdict, and on its return to the county court of Hancock that court established the road and made the proper order for the payment of the damages and the costs iii both the circuit court and county court. The jurisdiction of the county court to establish this road was disputed in the county court; first, because that court did not, as required by section thirty-five of chapter fourteen of Acts of 1881, “ appoint two or more viewers or a committee of their body to view the ground and make report;” but on June 6', 1881, said court in violation of law appointed all three members of the court a committee to make the view, it being supposed to be absurd; thatthe three members of the court should as a court instruct itself as a committee, or that the three members of the committee should report to the court which consists of. the same three members. This does not strike me as an absurdity. If the court instructs the committee, the in
Again it is objected, that the county court of Hancock had no jurisdiction to establish this road, because the committee appointed to view the ground never made a sufficient report. The order made by the county court of Hancock
It is said that this order, in which the contents of this report was thus set out at length, was set aside at a subsequent court, and another order, which did not so fully recite the action of this committee, was substituted in its place; and therefore we should consider this case, just as if this order of August 23, 1881, containing the full recitals had never been made. Of course we must regard this order as no longer operative as an order, after it was set aside; but, as on the face of the order setting it aside it appears not to have been set aside, because the facts stated in it as the action of the committee were in any respect incorrect, I can see no reason, why this Court as well as the county court might not well consider these recitals in this order as the report of this committee, though it had ceased to be operative as an order of the court in its corporate capacity. There can be no question, that uuder our statute, if the county court is bound to’pay to a proprietor of the land taken a just compensation in money, it can not compel such party to receive any part of his compensation in anything other than money, as for
It is claimed, that the true spirit of the law as laid down in these cases was violated by the concluding part of the order made by the county court of Hancock on June 5, 1882, which was : “ And it further appearing to the corn!, that the said defendants claim damages amounting to $500.00, and this court being willing to give only $25.00 and water-privileges, which offer the defendants refused to accept, it is hereby ordered, that proceedings be instituted and prosecuted in the circuit court of Hancock county pursuant to law to ascertain what will be a just compensation to the aforesaid proprietors or tenants, if any, for the lands proposed to be taken.” Two bills of exceptions were taken to this order, but no specific objection was made to the offer of the county court, that it was not all in money but partly in money and partly in water-privileges. The record fails to show what was meant by water-privileges, or that, had this offer been accepted, these defendants would have received any water-privileges, which they would not have had in any event. But regarding this as an improper manner, in which to offer compensation, and that the offer should have been made in money only, still I am unable to see, that in view of the proceedings taken subsequently these defendants can be regarded as having been prejudiced by the fact that the offer was made in this form. The statute, section thirty-seven of chapter fourteen of Acts 1881, provides :
“ At any time, if the court have enough before them to enable them to ascertain what would be a just compensation to the proprietors or tenants, and such proprietors or tenants to accept what the court deems just, the said court upon such acceptance being reduced to writing and signed by the proprietors and tenants may determine to undertake the work.”
Now suppose, that the .court in making this offer of a just compensation should include in it something besides money as, for instance, the building of two fences one along each side of the road. This might be improper on the part of the court; but if the offers were made in writing and accepted
• But it is said, that they refused this offer of compensation made to them, by the county court of Hancock. This they had a right .to do; and in such case, section 38 of the said chapter provides : “If the compensation to be paid to any proprietor or tenant be fixed by agreement, the county court shall order proceedings to be instituted and prosecuted in its corporate name in the circuit court of the county pursuant to the forty-second chapter of this Code.” This is just what the county court did; and the contingency, on which it had a right to do it, had arisen, that is, the compensation tobe paid had not been fixed by agreement. On the contrary it appears, that the offer made by the county court had been expressly refused. The right therefore to institute these proceedings in the circuit court existed, whether their failure to agree with the tenants arose from a disagreement as to what was a just compensation in money or from 1he fact, that part of the compensation was, as is supposed, offered in water-privileges. If ultimately the tenants get more than the offer in money, excluding entirely their water-privileges, they will be entitled to their costs; and thus an offer in this form might prejudice the county courtbut it could not prejudice the tenant or proprietor. They got in this case their costs in the circuit court as well as in the county court and their just compensation exclusively in money as assessed by a jury of twelve freeholders on their demand. They have no ground then in this court to complain of the form, in which the county court made its offer of compensation.
It is claimed by the counsel for the plaintiffs, that whenever private property of an individual is to be divested by proceedings against his will, there must be a strict compliance with all the provisions of law, which are. made for his protection and benefit. This is true, and if these provisions for
In this case the county court on December 7,1881, pursuant to the above statute made an order fixing the 17th day of December for the hearing of the parties interested; but it did not order all the parties interested to be notified in the manner prescribed by law. It is true, that the order made on the 17th day of December recited, that certain parties named were summoned to show cause against the establishment of this road, and two of the parties thus summoned appeared and consented to the establishment of this road. But the third party recited to have been summoned set up no claim to damages and made no defence to the establishment of the road but did file an answer denying, that the court had jurisdiction to establish this road as a public road.
They claimed among other things $500.00 as their just compensation, while the court was willing to give them only $25.00 and water-privileges. This offer of the court they refused to accept; and thereupon the court ordered proceedings to be instituted and prosecuted in the circuit court of Hancock county in the name of the county court of Hancock county to ascertain what would be a just compensation to them for the lands proposed to be taken and other damages. We have already seen, that there was no irregularity or error in the order, of which the plaintiffs in error have a right to
It is claimed that the road established by these proceedings is not defined with necessary accuracy, and that its location is not shown by the record with reasonable certainty. There is nothing, it seems to me, in this objection. There is no difficulty in ascertaining from the record the exact location of the road.
The judgment oí the circuit court of Hancock county rendered June 25, 1884, affirming the proceedings aforesaid and affirming the judgment of the county court of Hancock county must for these reasons be affirmed: and the defendant in error, the county court of Hancock county, must recover of the plaintiffs in error its costs in this court expended and $30.00 damages.
AeFIRMED.