15 W. Va. 483 | W. Va. | 1879
delivered the opinion of the Court:
The awarding of prohibitions in these cases is resisted by the defendants’ counsel because, it is said, “neither of the petitions alleges that the judge had in any manner as yet exceeded his authority or acted without jurisdiction, but without proof alleges his intention in future to do so.” And again because the petitions “nowhere allege that the judge of the circuit court of Kan-awha county had no jurisdiction to award the injunction or grant the writ of error and supersedeas.” This position was not assumed by the defendants’ counsel in the argu-. ment of the question, whether this Court should award the rules nisi in these cases. Had it been then done, doubtless the counsel for the petitioner would at once have amended his petitions and inserted these allegations clearly and distinctly. This was therefore the appropriate time to make these objections. There is however nothing in these objections. The petitions clearly show that they are based on an alleged usurpation of power, and that the circuit court or judge had
It is also urge(j the certifications for writs of prohibition are premature in these cases, “as the petitions do not allege that efforts nave been made in the interior court to dismiss the supersedeas or dissolve the injunction complained of, or that any plea, motion or suggestion has been made to test or suggest the want of jurisdiction.” The old English authorities show that when the jurisdiction of the court depends upon matters dehors the record, a plea setting out these facts was necessary to be tendered to the inferior court before the superior court would grant a writ of prohibition. See Edmunds v. Walker, Carth. 166; Cox v. St. Albans, 1 Mod. R. 81; Bouton v. Hursler, 1 Barn. K. B. 71. The Supreme Court of Arkansas appears to have extended the cases» in which prohibition will not be awarded to cases where the want of jurisdiction appears on the face of the proceedings in the inferior court, where the petitioner for the writ of prohibition has made no effort to get relief in the court below by motion to dismiss the writ which may have been improvidently awarded, or in some other manner. See McMeechen et al., exparte 7 Eng. (12 Ark.) 70. This extension of the English rule however is un-sustained elsewhere and has not been followed in Virginia or West Virginia. \ The true view is well stated in Arnold & Parish v. Shields et al., 5 Dana (Ky.) 18, where the court say : “Nor was it necessary in such a case as this to show that a plea to the jurisdiction had been overruled; for if the magistrate had no jurisdiction, that fact appeared on the face of the proceedings; and in such case there being nothing extraneous to plead, a prohibition may be granted, either before or after judgment, without plea, because the defendant in the warrant could not by consent or waiver confer jurisdiction, if the magistrate had no cognizance of the case.”
In the cases before us I do not doubt but that we should act on the application for the writs of prohibition now, though no motion was made in the circuit court to quash the writ of error and supersedeas or dissolve the injunction as improvidently granted. The injunction was obviously ancillary to the writ of supersedeas, which was granted after what was the equivalent of an argument by the petitioner’s counsel, he by letter having called the attention of the judge to the decision of this Court in Dryden v. Swinburn, reported in this volume
The counsel for the defendants also insists that, the petitioner being in contempt of the circuit court by violating its injunction order, could not now move said court to dissolve the injunction, till he had purged himself of his contempt; and that this court by awarding the writ of prohibition prayed for, even if it were a proper case to grant the same, would in effect dissolve the the injunction and it ought not to do so, till the petitioner is purged of his contempt. It is true that a party in contempt is not as a general rule entitled to a favor from, the court, till such contempt is purged. Still the court will sometimes dissolve an injunction on the motion of a defendant, though he be in contempt for violating the injunction order. 1 Stockton Ch. (N. J.) 110. If this principle can properly be applied in an application for a writ of prohibition in any case, it would seem to have no application in cases like .those now before this court; for if, as is claimed we should do, this Court should grant a prohibition in this case, it must be oh the ground that the writs of error and super-sedeas and writ of injunction were awarded by the circuit court without any authority and when he had no jurisdiction to award such writs in the class of cases to which these cases belong; and if this be so, that his orders granting such writs are null and void, and a violation of them by the petitioner is no contempt of the court; for it is no contempt of a court to violate an order-which the court had no jurisdiction to make. See People v. O’Neil, 47 Cal. 109.
It is true it the judge of the circuit court of Kanawha county had jurisdiction to award this injunction, the petitioner is in flagrant contempt of the court in violating its order; but in such case we would certainly ru-fuse to award the writ of prohibition, because the circuit
It is urged by the defendants’ counsel that a writ pf error ought not to be issued, when a party has a complete remedy in some other and more ordinary form, sustain this he refers to ex parte Brandlacht, 2 Hill 367; Bedford v. Wingfield, 27 Gratt. 333; People v. Wayne, 11 Mich. 393; Low v. Crown Point, 2 Nev. 75; People v. Marine Court, 2 Barb. 341; Sweet v. Hubbert, 51 Barb. 312; State v. La Crosse, 11 Wis. 50. That this proposition is true is not controverted. there be another adequate remedy, this writ ought not to issue. But when an inferior court has usurped jurisdiction, the remedy by appeal or writ of error may be very inadequate; and if this has been done in this case, the public would suffer great loss, if we permitted the usurpation of power, if such it be, to continue till the case was finally decided by the circuit court, and would hold that this usurpation could only be properly corrected by appeal and writ of error. If such was our holding, the people having business in the circuit court of Kanawha county would be subjected to great inconvenience and loss for a long period ; as in the position of things, as disclosed by the record in this case, there must to a very great extent be a suspension ot business in the clerk’s office of Kanawha county occupied by a clerk whom the judge of the court refuses to recognize- as clerk. The remedy by appeal and writ of error in these cases is entirely inadequate to meet the necessities of the case; and when this is the case, and the judge or court is proceeding without having any jurisdiction, or by usurpation of power, a writ of prohibition ought to issue, although an appeal or a writ of error or supersedeas would lie to any judgment he might hereafter render. This position is sustained in the State of Virginia and elsewhere. See Supervisors, &c., v. Gorrell, 20 Gratt. 484-552; Thomas v. Mead et al., 36 Mo. 246. The writ of prohibition and a writ of error If
' Having disposed of the preliminary questions, I will now consider the questions involved in these cases on ^heir merits. To do so we must clearly understand the situation of the several parties and their respective rights, when the judge of the circuit court of Kanawha county granted the writ of error and supersedeas and the injunction complained of. The petitioner, Swinburn, received at the election held October 8, 1878, a plurality of the votes for clerk of the circuit court of Kanawha county for the next term of six years, beginning January 1, 1879. The proper officers gave him a certificate of his election; but John Dryden contested it before the county court of Kanawha county. That court dismissed this proceeding on. the part of Dryden, on the ground that in their judgment they had no jurisdiction to try the same at that term of the court. After this case had been dismissed, and before any proceeding was taken to bring the judgment of the county court before the circuit court for review, the petitioner, Swinburn, qualified as clerk and gave his official bond, which was approved by the county court of Kanawha county. Subsequently Dryden obtained a writ of eertiorari to the judgment of the county court from the circuit, court of Kanawha county. All this occurred prior to January 1, 1879, when the term of office of the circuit clerk commenced. Who was legally the clerk of this court on January 1, 1879, and pending the controversy between said Swinburn and Dryden? The judge of the circuit court thought that the old clerk, W. E. G. Gillison, was properly the clerk of the court, pending this controversy, though his term of service ended on December 31, 1878.
The Constitution of our State, see Art. IV, §6, provides that “all officers elected under this Constitution shall continue to perform Ihe duties of their offices until their successors are elected and qualified.” The successor of W. E. G. Gillison, as the clerk of the cir
The circuit judge was therefore in error in his opinion, which he states in his answer to the rule issued by this Court against him, that the old clerk, W. E. G. Gillison, remained the clerk of this court till the controversy between Swinburn, who had been declared elected by the commissioners and duly qualified, and Dryden was terminated. But this controversy was ended on September 12, 1879, when the county court declared Swinburn elected. And when this Court finally adjourned on September 27, 1879, this judgment became operative and binding. From that day, according to the views of the judge of the circuit court himself, Swinburn was the clerk of that court. It is true that by this order of the county court this judgment was suspended for the space of twenty days upon the contesant, Dryden, executing a suspension-
It is true the judge of the circuit court in his answer to the
From the argument of counsel for the defendants it would appear, that while this portion of the opinion of this Court was not misunderstood, yet by reasoning from other portions of the opinion it was thought it could be shown that this conclusion of the Court was unsound. If this were true, it is clear it would not justify the violation of a plain instruction of this Court in no way ambiguous. But in truth there is no such inconsistency in the opinion of this Court. This supposed inconsistency arises from this Court in a prior portion of its opinion having decided that the constitutional provision, section 2, Article VIII: “The Supreme Court of Appeals shall have appellate jurisdiction in civil causes, where the matter in controversy, exclusive of costs, is of greater value or amount than $100.00” covered a controversy about an office, and that as chapter 17 of Acts oí 1872-3, page 56 says : “That a party to a controversy in any circuit court may obtain an appeal, writ of error or su-persedeas from a judgment, decree or order, if the matter in controversy, exclusive of costs, is of greater value or
These were the views entertained by this Court then ; and it does seem to me they were expressed then in language just as clear as that now used, and ought not to have been misunderstood.
It is argued, however, that the expression of the opinion by the President of this Court in that caáe, that no writ of error or supersedeas lay in that case from the judgment of the county court, was an obiter dictum, and not binding on the circuit or county court. When a case is remanded to an inferior court for further proceedings, that court can in no case regard anything which relates to any action which the inferior court may take in the case after it is remanded, as obiter dictum. When this case was remanded to the circuit court for trial, it was required to decide the case ; and whether it decided it in' favor of the contestant, or contestee, the statute-law required it, if a writ of error or supersedeas lay to such a judgment, to grant to the opposite party on request a suspension of such judgment, and otherwise, the law forbade such a suspension of judgment. In order, therefore, that it might know whether it should grant a suspension of judgment, or not, it was proper for this Court to consider and decide, whether a writ of error and supersedeas did lie. It did decide this point after argument and on mature consideration ; and the attempt to avoid it by calling it an obiter dictum is as unreasonable
Nor is there any force in the position assumed by counsel for the defendants that, as section oof Article yijl 0f the Constitution, p. 26, provides: “It shall be the duty of the court to prepare a syllabus of the points adjudicated in each case concurred in by three of the judges thereof, which shall be prefixed to the published report of the case” that because it was not stated in the syllabus of the case that a writ of error and supersedeas would not lie from the judgment of the county court in such a case, therefore the circuit court was not bound not to award such a writ, though so instructed in the opinion. The syllabus is intended for the information of the profession and courts in the State generally. It is not required to be certified'to the judge in the particular case, but only the opinion ; and his specific instructions in this particular case are often not inserted in the syllabus, as, for instance, instructions not to allow a particular credit to a party in a suit. Of course such a credit cannot be afterwards allowed, though nothing be said about it in the syllabus.
The awarding therefore of a writ of error and supersedeas
On the 20th of September, 1879, Swinburn got the possession and control of the clerk’s office of Kanawha county, and still holds the same by force and threats. The judge of the circuit court of Kanawha county being of opinion that the old clerk, Gillison, was at present entitled to the office and its emoluments, at his instance issued an injunction prohibiting Swinburn from interfering with his performance of its duties or controlling the office, its books or papers till the further order ot the court. This proceeding was, properly speaking, auxilliary to the writ
It is argued however by the defendants’ counsel that courts of record have always the power by injunction, or otherwise, to preserve the papers and records of the court and prevent the unlawful and forcible seizure and detention of the same. But in the present case the forcible seizure of the. office and its papers was when the writ of injunction issued, a past event, and the writ was not issued to prevent its occurrence. These books and papers, when the writ issued and now, are being held and detained not unlawfully, but by a party who is entitled to their custody and care at this time. This argument of the counsel for the defendants may be well answered in the words of the Court in Thomas v. Mead, 36 Mo. 245. “There was not the shadow of an equity in the bill of the defendant, properly considered, on which to ground an injunction at all. It is unnecessary to deny that, in certain cases, an injunction may be granted, mainly on the ground that an immediate and irreparable injury is threatened to be done, for which otherwise there would be no adequate and complete redress; and if a stranger without right or authority were
I have so far taken no notice of the order entered on the record book of the circuit court of Kanawha county that its last term and referred to in the answer to the rule, in which it is set out thatSwinburn asked the court •to recognize him asclerk, and to give him the possession and control of the clerk’s office and the books and papers thereof, and the decision of the court thereupon, that under the acts and Constitution of the State the said Swinburn was not then entitled to exercise the functions and perform the duties of clerk of said court, or to fill, or to hold, the said office pending the trial of the contest for the said office, “and that the former clerk of said court, W. E. G. Gillison, was entitled to hold over and fill said office, and perform all its duties, and receive all its emoluments or fees, until the contest aforesaid shall be fully decided.” The circuit court of Kanawha county had obviously no right in this ex parte proceeding to decide-who was then entitled to said office. It can be regarded as only the expression of the opinion of thejudge and his determination to recognize Gillison as the clerk, an opinion which he might, whenever he pleased change. As a decision of the court this order must be regarded as a mere nullity. It could have been set aside by the court at any time without notice to any one; and is obviously not binding as a decision. The law of course recognizes no such mode of determining who is entitled to an office. '^Thejcourt had no jurisdiction to decide this case in
I conclude that the granting of the writ of error and supersedeas to the judgment ot the county court oí awha county, of September 12, 1879, as well as the awarding of an in] unction against Thomas Swinburn on the bill filed by W. E. G. Gillison, were acts done by the judge of the circuit court of Kanawha county without authority and without any jurisdiction ; and that they are null and void; and writs of prohibition should be awarded to prohibit said court from proceeding in said cases, and to prohibit the defendants, Dryden and Gillison, respectively from proceeding in the premises; and that the petitioner should recover in one of these cases his costs in this court expended against said Dryden, and in the other against said Gillison.
Writ op Prohibition Awarded.