Berkshire v. Staley.

• Decision Date: 31 July 1871
• Citation: 5 W.Va. 85
• Court: West Virginia Supreme Court
• Parties: Berkshire, P., Dissentient. Logan Osburn et al. v. John D. Staley et al.

5 W.Va. 85

Berkshire, P., Dissentient.

Logan Osburn et al.

v.John D. Staley et al.

Supreme Court of Appeals of West Virginia.

July Term, 1871.

1. Parties who are taxpayers and citizens of a county, and who own real estate in a town from which it is claimed other parties are about to illegally remove the county seat by carrying away the records, books, documents, &c, under a pretended act of the legislature, to the great damage, expense and injury of the citizens of the county generally, and the parties plaintiff in particular, can maintain a suit by injunction against the parties so endeavoring to remove.

2. By the 15th section of chapter 7 of the Code, 18S8, all acts done by any person

by authority of any office, are valid. Such would be the law without the statute.

3. The constitution of West Virginia requires each branch of the legislature

to keep a Journal, and provides that on the passage of every bill the vote shall be taken by yeas and nays, and be entered on the journal, and no bill shall be passed by either branch without an affirmative vote of a majority of the members elected thereto; and on a question touching the validity of an act, this court can look beyond the authentication of the act, to the journal of either branch, to see if the bill passed by the required number of votes.

4. While the legislature is governed by the spirit of the constitution, the courts

cannot declare an act of the legislature invalid unless its invalidity is placed beyond a reasonable doubt. A reasonable doubt must be solved in favor of the legislative action, and the act be sustained. The courts must be guided by the express words of the constitution, and not by its supposed spirit. Whenever an act of the legislature can be so construed as to avoid conflict with the constitution and give it force of law, such construction will be adopted by the courts.

5. It is not clear beyond a " reasonable doubt," that the words " members elected, "

in the constitution of this State, in the section providing that " no bill shall be passed by either branch (of the legislature) without an affirmative vote of a majority of the members elected thereto," can only refer to persons elected at the last preceding elections, although they may have ceased to be members at the time the vote is taken on the passage of the bill; and a resonable doubt as to this, is sufficient to sustain the validity of the act under consideration.* 6. To avoid conflict with the constitution, and to give the act the force of law, the construction that members elected, occurring as before noted, refers to those who were members at the time the vote was taken, should be adopted to sustain the validity of the act.

John D. Staley, David Billmyer, William Eights tine and others, citizens, taxpayers and residents of Jefferson county, filed a hill of injunction in the circuit court of that county, at April rules, 1871, against Logan Osburn, James H. Moore, John E. Cockerell, David Howell, senior, and John J. Lock.

The bill alleged that the county seat of that county was legally located at Shepherdstown, by act of the legislature. That in pursuance of the act, large sums of money had been collected by taxation, and expended in the erection of a court house, jail and other county buildings at that place. That by a provision of the Code of West Virginia, chap. 39, sec. 29, it was provided that the county seat of any county might be removed by a vote of the people. That the defendants claimed to be authorized to remove the books, records and documents of the county from Shepherdstown to Charlestown, in that county, by virtue of an act of the legislature, passed February 23d, 1871. That there were in the State of West Virginia, eleven senatorial districts, and that at the election before the opening of the legislature at which the last mentioned act was passed, parties were elected from all the senatorial districts, so that at the beginning of the session of the legislature, the full number of senators provided by the constitution were chosen by the people, making in all twentytwo senators, and actually sworn in. That on the passage of the bill appointing the defendants commissioners for the purpose of removal of the records, &c, but eleven senators voted aye, on its passage, when by sec. 37, art. IV. of the Constitution, it was provided that no bill should be passed by either branch of the legislature without an affirmative vote of a majority of the members elected thereto, as appeared by the certificate of the clerk of the senate, filed with the bill. That, therefore, the act was void, and the removal in violation of law, and would greatly increase the burdens of taxation.

The aid of the court was invoked to enjoin the defendants from making the removal, which it was alleged they were about to do, to the great injury of the public interests of the county.

The bill had been previously presented to the judge of the fifth judicial circuit, which did not embrace the county of Jefferson, and had been by him refused, on the 11th of March, 1871. Subsequently, on the 15th of March, it was granted by one of the judges of this court.

An amended bill was filed, which, in addition to the matter set up in the original, alleged that four of the plaintiffs were owners of real estate in the town of Shepherdstown, and that their individual interests would be materially affected and injured if the removal of the county seat were effected, and that they had suits in the circuit court of the county, and their individual interests and convenience would also be materially affected by the removal.

The defendants answered the bill, admitting the acts of the legislature referred to in the bill. They neither admitted nor denied the allegation concerning the number of senators who voted on the final passage of the bill, but demanded proof of it. They further answered that they were advised that no such question could be inquired into, or determined in this cause, and therefore they prayed the benefit of a demurrer to that part of the bill which sought relief upon the ground that the act of removal was passed by a less number than a constitutional majority. They also prayed the benefit of a demurrer as to the right of the plaintiffs to institute this suit, on the ground that such right was not given them by reason of their being taxpayers and citizens of the county.

The injunction was perpetuated, in vacation, on the 12th of April, 1871, by the judge of the sixth circuit, the circuit in which the county was judicially organized.

The defendants appealed to this court.

Hunter and Travers for appellants. Faulkner and Van Swearingen for appellees.

Maxwell, J. By the second section of an act purporting to be passed by the legislature of this State, on the-23d day of February, 1871, entitled, "An act to change the county seat of Jefferson to Charlestown, in said county," it is provided," That the county seat of the said county of Jefferson shall caese to be at Shepherdstown, in said county, thirty days from and after the passage of this act, and from and after that date he located at Charlestown, in said county." The third section of the said act provides that Logan Osburn, James H. Moore, John E. Cockerel!, David Howell, Sr., and John J. Lock be appointed commissioners to carry out the purposes of the act, by causing the public records to be removed from Shepherdstown to Charlestown, and by causing to be procured at Charlestown, rooms suitable to contain the records and to be used as offices by the county officers. The said commissioners were required to do certain other things not necessary to be mentioned. When the said commissioners were about to proceed to carry into effect the provisions of the act, John D. Staley and others, the appellees here, citizens, taxpayers and residents of Jefferson county, applied to the judge of the fifth judicial circuit for an injunction to enjoin and restrain them from performing their supposed duty under the said act. The said judge refused to award the injunction, and application was then made to one of the judges of this court, who granted it, and the cause was sent to the circuit court of Jefferson county to be proceeded in. The defendants, upon being summoned, answered the bill and moved the judge of the circuit court of Jefferson county, in vacation, to dissolve the injunction, which he refused to do, and it is from this order the case comes here on appeal to be reviewed.

The first cause of error assigned is, that the complainants are private persons, and not acting in any official capacity, and therefore could not enjoin the defendants.

The bill, and amended bill, filed after the injunction was allowed, show that certain of the parties named have special interests to be affected by the removal of the county seat, and also show that the bill is filed in behalf of the complainants and others in the county of Jefferson having like interests, which is sufficient to allow them to maintain the suit. Story's Equity PL, § 114. Lusher vs. Scites, 4 W. Va. 11; Kuhn vs. The Board of Education of Wellsburg, 4 W. Va. 490.

The second cause assigned as error is, that the injunction was improperly allowed by a judge of this court, because it is claimed that the person who endorsed the refusal of the injunction as judge of the fifth circuit, was not at the time a judge of the said circuit.

It is well known that the person who endorsed his refusal to allow the injunction was at that time, and still is, the acting judge of the fifth circuit, and the 15th section of chapter 7 of the Code, p. 73, provides that all acts done by any person by authority of any office shall be valid, and such would indeed be the law without this act of the legislature.

The third ground of error assigned is, that " the court cannot, for the purpose of impeaching a statute, go behind the record to inquire into the regularity of the proceedings of the legislature in passing such act. The enrolled bill,...