Arkle v. Bd. Of Com'rs

• Decision Date: 07 December 1895
• Citation: 41 W.Va. 471,23 S.E. 804
• Parties: ARKLE v. BOARD OF COM'RS.
• Court: West Virginia Supreme Court

23 S.E. 804

41 W.Va. 471

ARKLE

v.BOARD OF COM'RS.

Supreme Court of Appeals of West Virginia.

Dec. 7, 1895.

constitutional law—powers of county courts —Removal of Justice of the Peace —Judicial Acts.

1. Under the provisions of our constitution (article 8, § 24), county courts are authorized to exercise such other powers and perform such other duties, not of a judicial nature, as may be prescribed by law; and section 7 of chapter 7 of the Code, so far as it authorizes the county court to hear the charges preferred against a justice of the peace, after having him summoned to answer such charges, and to remove him from office when a proper case is made, is judicial in its nature, and to that extent said section is unconstitutional.

2. An act done in the exercise of judicial power—an act performed by a court touching the rights of parties or property brought before it by voluntary appearance or by prior action of ministerial officers—is a judicial act.

3. When a judge or court of justice, in a suit between parties, ascertains facts, ascertains and applies thereto the law, decides the controversy, and renders judgment, judicial power has been exercised, and such exercise is a judicial act, (Syllabus by the Court.)

Error to circuit court, Ohio county.

Writ of prohibition by George Arkle against the board of commissioners constituting the county court of Ohio county. From an order making the rule absolute, defendant brings error. Affirmed.

John A. Howard and John J. Coniff, for plaintiff in error.

Robert White and W. W. Arnett, for defendant in error.

ENGLISH, J. George Arkle, a justice of the peace of Ohio county, was summoned to appear before the board of commissioners who constitute the county court of Ohio county, to answer charges preferred against him in writing, charging him with misconduct in office. Said county court proceeded with the investigation of each of the charges brought against him, and during the pendency of said investigation said George Arkle obtained a rule in prohibition from one of the judges of the circuit court of said county, requiring a cessation of said proceedings against him until the further order of the court. The said board of commissioners then moved the court to discharge the rule, which motion was overruled, and said rule was made absolute. In the affidavit relied on by said Arkle in support of the rule, he bases said application upon the alleged ground that section 7 of chapter 7 of the Code of West Virginia, under which said investigation was ordered and entered into, is unconstitutional and void. On the 12th day of September, 1894, the case was heard upon the petition, the charges mentioned therein and filed therewith, and upon the rule in prohibition awarded by the judge of said circuit court in vacation, which had been served upon the president of the said board of commissioners of Ohio county, and upon the motion of said board of commissioners to discharge said rule, upon the ground that the said petition and charges filed do not disclose sufficient cause to warrant the issuing of a writ of prohibition as prayed for, which motion, upon consideration, was overruled by the court, and said board of commissioners by its counsel excepted, and it was ordered that the said rule so awarded be made absolute, and that a writ of prohibition be awarded, directed to said board of commissioners, commanding it to cease all further and other proceedings upon the charges aforesaid made against said George Arkle, justice of the peace of said county, and said board of commissioners again excepted, and applied for and obtained this writ of error.

The sole question we are to determine in this case is whether that portion of section 7 of chapter 7 of the Code which provides for the removal of county and district officers, which reads as follows: "Such removal shall be made * * * in case of the clerk of thecounty court, county, superintendent of free schools, assessor, justice of the peace and constable by the county court of the county, " —is constitutional. Section 6 of article 4 of the constitution provides that "all officers elected or appointed under this constitution may, unless in cases herein otherwise provided for, be removed from office for official misconduct, incompetence, neglect of duty or gross immorality in such manner as may be prescribed by general laws, " etc. But we find that in section 24 of article 8 of the constitution this limitation is placed upon the powers of the county court, after enumerating various powers of said court: "Such courts may exercise such other powers and perform such other duties not of a judicial nature as may be prescribed by law." The question, then, which we encounter at once is whether this proceeding for the removal of said George Arkle from the office of justice of the peace of said county was a judicial proceeding. Charges were preferred against him, he was cited, to appear and answer the same, and the court was proceeding to hear and determine the question of his amotion from office, when the rule in prohibition was awarded against said county court In the third volume of the American & English Encyclopedia of Law, at page 693, under the head of "Legislation Regulating Courts, Judges, and Jurisdiction, " it is said: "Where the constitution establishes a particular court and fixes its jurisdiction, it is not competent for the legislature to pass any statute abolishing the court or either enlarging or abridging its jurisdiction." In the case of Montross v. State, 61 Miss. 429, it was held that "the legislature cannot confer, upon courts established by it, jurisdiction exclusive of that which by the constitution is given to courts established by the constitution itself, nor can it delegate to such courts the power to declare what shall be the punishment for offenses against the laws of the state." Wells, Jur. p. 55, says: "The essential distinction between constitutional and statutory courts is that the former are not subject to the will of the legislature, so far as their constitutional jurisdiction extends, whereas the latter may be restricted or abolished, as well as created and enlarged, at pleasure." In the case of Mayer v. Adams, 27 W. Va. 253, which was a contested election case, Green, J., in delivering the opinion of the court, quotes from Peck v. Holcombe, 3 Port. (Ala.) 329, as follows: "A declaration of the vacancy of an office by a court competent to make the declaration is a judicial act." And, referring to the case (3 Port. 329), we find the syllabus reads thus: "Where a judge of a county court, under the act of 1829, declares the office of tax collector vacant, such declaration is a judicial, conclusive act, and cannot, while unreversed, be questioned by proof that the tax collector had his bond ready, but that the judge was absent." Again, the law of this point is stated thus by Throop, Pub. Off. § 346: "The power to remove a state officer has been regarded in New Jersey as judicial, and, on that ground, one which cannot be constitutionally exercised by the governor, but only by the court of impeachments. But it has been elsewhere regarded as ministerial, and thus capable of being conferred by the legislature upon ministerial officers, in the absence of constitutional restrictions; although where specific causes are required, and a notice and a hearing must be had to render a removal lawful, the removing officer or body proceeds in a judicial manner, so that the decision may be reviewed by the courts." It is said, in section 396 of the same work: "So it has been held that, where a statute gives a power of removal 'for cause, ' without any specification of the causes, this power is of a discretionary and judicial nature, " etc. So, in the case of Board v. Pritchard, 36 N. J. Law, 101, it was held that "the right to remove a state officer for misbehavior in office does not appertain to the executive office. Such act is judicial, and belongs to the court of impeachments." Upon this point the supreme court of Michigan, in the case of Dullam v. Willson, 53 Mich. 392, 19 N. W. 112, holds (second point of syllabus) that "How. Ann. St. § 651, permitting the governor to remove any state or county officer, except the state treasurer and judges, is void, because, at the time it was adopted, the governor had no judicial power under the constitution, " clearly implying that judicial power is required to remove such officers; and we find that Chief Justice Marshall, in delivering the opinion of the court in the case of Page v. Hardin, 8 B. Mon. 655 (the same being the case in which the governor had declared the office of secretary of state vacant, and appointed a successor, and the question was raised by a mandamus against the auditor to require him to issue a warrant for salary), says, on page 655: "The executive department, and all of its officers are as much bound by the constitution and laws as the legislative, ' and have no more power to violate the rights of individuals secured by the laws. The power, obviously judicial, of ascertaining and enforcing the legal rights of individuals, is, in effect, the power of protecting those rights from violation by the act or authority either of individuals or of the legislative or executive departments, and it...