Click v. Click

• Decision Date: 10 March 1925
• Docket Number: (No. 5217.)
• Court: West Virginia Supreme Court
• Parties: CLICK et al. v. CLICK et al.

127 S.E. 194

CLICK et al.
v.
CLICK et al.

(No. 5217.)

Supreme Court of Appeals of West Virginia.

March 10, 1925.

(Syllabus by the Court.)

The inherent, as well as the express, powers of a circuit court must be exercised within the territorial jurisdiction of that court, unless the fields of their use are enlarged by positive legislative enactment.

It is the duty of a court to construe a statute according to its true intent, and give to it such construction as will uphold the law and further justice. It is as well the duty of a court to disregard a construction, though apparently warranted by the literal sense ot the words in a statute, when such construction would lead to injustice and absurdity.

The circuit court of Cabell county may issue a writ in habeas corpus directed to a resident of Jackson county, but the writ should be made returnable before the circuit court of Jackson county, or the judge thereof in vacation, unless such judge or court is not available to hear the case.

"Habeas corpus" is a suit wherein, probable cause therefor being shown, a writ is issued which challenges the right of one to hold another in custody or restraint.

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Habeas Corpus.]

(Additional Syllabus by Editorial Staff.)

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Prerogative Writs.]

Error to Circuit Court, Cabell County.

Proceeding in habeas corpus by W. P. Click and another against R. C. Click and another to determine right to custody of Violet Click, an infant. Judgment for relators, and respondents bring error. Reversed, and writ dismissed.

J. L. Wolfe, of Ripley, for plaintiffs in error.

Duncan W. Daugherty, of Huntington, for defendants in error.

HATCHER, J. This is a proceeding in habeas corpus brought here by R. C. and Fannie Click, who complain of a judgment against them by the judge of the circuit court of Cabell county.

This action was instituted by W. P. and Amelia Click before the said court, who up-

[127 S.E. 195]

on their petition, issued a writ against R. C. and Fannie Click, residents of Jackson county, requiring them to bring before it in Cabell county the body of Violet Click, an infant. R. C. and Fannie Click appeared specially and moved to quash the writ on the ground that they, as well as the infant, Violet, were residents of the county of Jackson, and that the circuit court of Cabell county had no jurisdiction to hear this case. This motion was overruled, and R. C. and Fannie Click excepted. Violet was then brought before the court, and upon a hearing of the matter, the court decreed that the custody of the infant be turned over by the said R. C. and Fannie Click to the relators, W. P. and Amelia Click.

The respondents charge the circuit court with two errors, to wit: (a) Making the writ returnable before itself; and (b) upon the hearing, adjudging the relators to be entitled to the custody of the child, Violet. The matters arising on the first assignment of error are novel in this court, so we deem it pertinent to advert briefly to the history of the writ.

I. The Writ.

The origin of the writ of habeas corpus is lost in antiquity. Kane, J., in U. S. v. Williamson, 4 Am. L. R. 5, associates it with the Roman edict de libero homine exhibendo. Several writs were used in England, prior to magna charta, to test the legality of an imprisonment, such as de odio et atia, corpus cum causa, etc. But after King John on June 15, 1215, signed the great charta at Runnymede—"a pleasant meadow by the Thames where rushes grow in the clear water of the winding river and its banks are green with grass and trees, " these other writs gave place to the summary and more efficacious writ of habeas corpus ad subjiciendum. This writ was claimed (though not always obtained) by American colonists to be their birthright as Englishmen. It has been zealously perpetuated by our federal and state Constitutions. It is regarded as "a palladium of liberty, " and is admittedly one of "the greatest and most effective remedies known to the law." So great in fact is our veneration for this writ that our text-writers hesitate to define it in ordinary terms. Even our staid old American and English encyclopedia of law can find only Latin words with which to express a part of its definition of the Latin phrase "habeas corpus ad subjiciendum."

"It is directed to the person detaining another and commands him to produce the body of the prisoner with the day and cause of his caption and detention ad faciendum, subjiciendum, et recipiendum, and to submit to and receive whatever the judge or court issuing such writ shall consider in that behalf."

By reason of the antiquity of the writ, or the confusion resulting from its Latin words, or the veneration in which it is universally held, or perhaps for all three reasons, the writ has not been understood so well as most of our other legal proceedings. This misunderstanding has been in part fostered by the florid language of judges and text-writers. It is commonly referred to both in text and decision as the "great common-law writ of right" and as a "high prerogative common-law writ." Yet this writ may be denied if the petitioner fails to set forth facts showing that he is entitled thereto ex merito justicias.

"The rule is that a person restrained of his liberty is entitled as matter of right to the writ, upon presentation to the proper officer or tribunal of his petition showing proper ground therefor." Bailey on Habeas Corpus, par. 5, p. 13.

"While the writ of habeas corpus is a 'writ of right, ' it does not issue as a matter of course, but only when the application therefor contains allegations which, if true, would authorize the discharge of the person held in custody." Simmons v. Georgia Iron & Coal Co., 117 Ga. 305, 43 S. E. 780, 61 L. R. A. 739.

It would therefore seem to be a writ of right only in name and not in fact. The definitions of a prerogative writ are not at all illuminating:

"A 'prerogative writ' is one which does not issue as of right, but in the sound discretion of the court or judge." Ex parte Thompson, 85 N. J. Eq. 221, 96 A. 102.

"It is a prerogative writ, not ministerially issuable, that is not of course; and yet a writ of right on a proper foundation being made by proof." Bailey...