12 W. Va. 337 | W. Va. | 1878
delivered the opinion of the Court:
The Legislature passed an act approved on the 9th day of December, 1873, entitled, “ an act, to amend and re-enact chapter 80 of the Code, concerning the maintenance of illegitimate children.”
This statute differs from said chapter 80 in the following particulars:
1st. The woman “ may go before a justice of the peace of the county, in which she has resided” &c., instead of “ before a justice of any township of the county, in which she has resided” &c.
3d. “After such accusation shall have been made, proceedings thereupon maybe had, either in the name of the woman, or of the overseers of the poor of-county,” in lieu of “after such accusation shall have been made, proceeding thereupon may be had, either in the name of the woman or of the supervisors of the county.”
4th. The 4th section provides, that if the accused be found guilty, the court shall order him to pay to the overseers of the poor of the county, for the maintenance of the child, such sums &c., in lieu of to the supervisors of the county ; and that the woman and overseers of the poor may consent to his discharge, instead of “ the woman and said supervisors;” substituting throughout the chapter, “overseers of the poor” for “supervisors of the county.”
5th. Section 5 provides for recovering on motion, made in the county court in the name of the overseers of the poor against the father and his sureties, for a breach of the bond; in lieu of such motion being made in the circuit court, in the name of the supervisors of the county.
The foregoing are all the material changes made in the statute. The last statute went into effect upon its passage. The question now is, did the passage of the
It is a sound rule of construction, that a statute should have a prospective operation only, unless its terms show clearly a legislative intention, that it should operate retrospectively. Cooley Con. Lim. 370; Sedg. on Stat. & Con. Law 164; Duval, adm’r &c., v. Malone et al., 14 Gratt. 24; Philips v. Commonwealth, 19 Gratt. 522. Mr. Sedgwick says at page 164 : “ But it also appears’ to be clearly settled in England, that the rule, to give statutes a prospective operation, is one of construction merely; that it will yield to the intention of the legislature, if clear beyond doubt; and that the only question is, whether the retroactive intention is sufficiently express. * * * * In this country the same opposition to giving statutes a retroactive effect has been manifested ; and such is the general tenor of our decisions.”
The facts in the case of Philips v. The Commonwealth, 19 Gratt. 485, showed, that, on the 24th of June, 1867, the prisoner was committed to the jail of Henrico county by' a justice, that he might be examined before the county court of said county for the murder of Mary Emily Philips ; that he was examined before said county court, the trial commencing on the 2d of July, 1867. The county court sent him on for trial to the circuit court. At the October term of the circuit court in 1867, the prisoner was indicted for the said murder, and was tried and convicted in said circuit court, at a special term thereof on the 9th day of July, 1868, after a protracted
The act provided, that it shall go into operation on the 1st of July, 1867, and repealed the law in relation to examining courts, and conferred jurisdiction upon the county courts to try all cases of felony, except when the prisoner elected to be tried in the circuit court. In this case the prisoner made no such election or demand. Judge Rives said, in discussing the question whether the law was prospective or retrospective, on p. 522, 523: “ Whenever this law was to take effect as to the commitment, it also took effect as to examining courts; and so long as this law could not affect or alter the commitment for examination, its legal concomitant or incident— the examining court — was unrepealed. Upon what commitments then was this act of April 27, 1867, designed to operate ? There seems to me but one reasonable answer, upon commitments occurring on or after the 1st day oj July, 1867. Any other answer would seem to involve the absurdity of comforming by way of anticipation to a law not in operation.** The judgment in the case was affirmed.
It seems clear to us, that there is nothing in the act of 1873, that by implication even takes away, or was designed to take away, the jurisdiction of the circuit court in bastardy cases, where the defendants - had been theretofore recognized, to appear before the circuit court and answer the charge &c. The whole language of the act is prospective in its character; there is not one word said about cases already pending, and the only clause,
It was not necessary for the warrant to show, in what district or township the woman resided, nor that she resided in the same district or township, in which the justice, before whom she made the complaint, resided, for the language of the law was at the time the complaint was made: “Any unmarried woman may go before a justice of any township of her county, in which she has resided for the next preceding year, and accuse any
It is also insisted, that the court erred in permitting the plaintiff, while giving her evidence in the case, after having been asked on cross-examination, for the purpose of laying a ground to impeach her testimony : “ Did
Was it error, to permit her under the circumstances to make the answer to the question ? Mr. Greenleaf in his work on Evidence, vol. 1, section 462, says : “It is
The question put to the witness, by defendant’s counsel was clearly relevant; and the defendant could then have contradicted her by Mary Youst or any one, who heard her make the statement at the time and place designated, and she would clearly under the law, we think, have had the right to have been again put upon the witness stand, to say what she did say at that time on the subject of inquiry, it being relevantto the issue. The record does not show whether the contradicting witnesses were introduced or not; but when the question was propounded to her upon the very question at issue, whether the defendant was the father of her child, tending to create the impression upon the jury, that she had not always told the same story on the subject, as well as to permit them to contradict her, we think, it was not error on re-examination, before the impeaching witness or witnesses were introduced, to permit her to say to the jury, what she did say to the party named, if anything, on that subject at the same time and place.
It is assigned also as error, that the plaintiff could not prosecute the suit, because she was an infant; and that for that reason the judgment oughttohave been arrested.
It is insisted, that the court erred in rendering the judgment it did, “in ordering the defendant to pay to the overseers of the poor of the county, tor the maintenance-of the said child, at the rate of $50.00 per year,
1st. “ Because the order required an impossibility. The order was made.on the 18th of March, 1875; whereas the first installment became due on the 17th of September, 1874, six months before the judgment was rendered.”
2d. “ Because it required a bond to be given with such impossible condition.”
The statute says: “ if he (the defendant) be found guilty, the court shall order him to pay to the overseers of the poor of the county, for the maintenance of the child, such sums as it may deem proper for each year, until such time as the court may appoint, unless it sooner die, and shall order the father to give a bond in such penalty and with such sureties, as it may deem sufficient for the performance of the order.
This is what the court did. While it was not possible for the defendant to go back six months and pay the first installment, yet it was possible for him to pay it, when he executed the bond, which would answer every practical purpose. The language of the statute is : “He shall order him to pay, &c., for each year, until such time as the court shall appoint, unless it sooner die, &c.” Now if the defendant should delay the trial of the cause by continuances for a long time, and the court should, fix the payments “for each year” in the future only, and the child should soon thereafter die, the defendant would
It was also assigned as error, that the court gave costs to the overseer of the poor for the use of the plaintiff, instead of to the plaintiff herself.
The judgment of the circuit court is affirmed with costs and damages.
Judgment Affirmed.