Cutlip v. Sheriff Of Calhoun County.

• Decision Date: 31 August 1869
• Citation: 3 W.Va. 588
• Court: West Virginia Supreme Court
• Parties: Rachel Cutlip v. Sheriff of Calhoun County.

3 W.Va. 588

Rachel Cutlip

v.Sheriff of Calhoun County.

Supreme Court of Appeals of West Virginia.

August Term, 1869.

The county court of Calhoun county was established by the general assembly of Virginia, and a subsequent vote of the people, in 1858, at Arnoldsburg. The legislature of this State, by an act passed in January, 1807, located the county seat at another place in the county. This latter act was entitled "An act locating the county seat of Calhoun county." The 3d section provided that the board of supervisors of the county were authorized to sell any county property at Arnoldsburg. This act was repealed by an act passed by the legislature in March, 1809. Held:

1. That the provision of the act of January, 1867, authorizing the

board of supervisors to sell county property at Arnoldsburg, is another and different object from that stated in the title of the act, and is therefore repugnant to the provision of the constitution found in art. IV, sec. 36, as follows:" No law shall embrace more than one object, which shall be expressed in its title;" and the entire act is therefore void.

2. Courts bold at Arnoldsburg are therefore valid, and parties in cus-

tody under indictments found therein are lawfully detained.

The county seat of Calhoun county was located at Arnoldsburg in 1858. On the 27d of January, 1867, f the legislature passed an act removing the county seat to Stump's farm in same county. An act passed March 4th, 1869, repealed the act of January 22d, 1867. After the'

f " Be it enacted by the legislature of West Virginia:

1. The county seat of the county of Calhoun shall hereafter be at the farm of Simon P. Stump, on the Little Kanawha river, in said county: and the public buildings to be erected shall be upon a site on said farm to be selected by the board of supervisors of said county.

2. Until such buildings are erected, the said board of supervisors shall provide buildings as near as practicable to the site so selected, to be used temporarily for county purposes.

3. The board of supervisors of said county are hereby authorized to sell any county property at Arnoldsburg, in said county.

4. The judge of the sixth judicial circuit is authorized to hold his court for said county in the buildings to be provided under this act, and the several of- passage of the act of March 4th, 1869, the petitioner, Rachel Cutlip, was indicted for murder in the circuit court of Calhoun county, which court was held at Arnoldsburg. She petitioned this court for a writ of habeas corpus, alleging that she was unlawfully detained by the sheriff of that county, having been arrested in pursuance of the indictment, because the court was held at Arnoldsburg when the indictment was found, when there was, in fact, no county seat lawfully established in Calhoun county, by reason of the passage of the act of January 22d, 1867, and its repeal by the act of March 4th, 1869.

Cozad for the petitioner.

Brown, President. This is a writ of habeas corpus, by which the plaintiff seeks to be discharged from custody upon an indictment for felony found against her iu the circuit court of Calhoun county, upon the sole ground that the proceedings of said court were void, because the court was held at Arnoldsburg, in said county.

Arnoldsburg was the county seat established by the vote of the people in pursuance of the act of 1858, and so remained, unless it has been changed by the acts of January 22d, 1867, and of March 4th, 1869. The former, if valid, removed the county seat to Stump's farm, in said county, and the latter repealed the former without more saying. And the important question comes practically up, where, under this state of things, is the lawful county seat of the county, or is the monstrous pretension true that the people have been left without any seat of justice in the county.

The constitution, article IV, section 36, is in these words: "No law shall embrace more than one object, which shall be expressed in its title."

ficers required to have offices at the county seat shall remove their offices to the site selected in pursuance of this act, as soon as suitable buildings are provided for their accommodation.

* Be it enacted by the legislature of West Virginia:

Chapter one of the acts of eighteen hundred and sixty-seven is hereby repealed.

The object of this provision was to guard against the enactment of laws by a sort of fraud upon the legislature by including in an act for one purpose, which was stated in its title, other and different objects, not so stated, and of which nothing was often known save by a few interested in the bill. And the evil of which enhanced when bills were merely read by their titles and put upon their passage and often rushed through on the last day of the session of the legislature.

Another important object was to secure a fair and impartial consideration of each subject by making it to stand or fall on its merits, instead of having it carried against the wishes of the majority, often by having it tacked to some important measure it might be difficult or disastrous to defeat.

The history of legislation is rife with evils of this character sought to be remedied by this provision of the constitution.

The title of the act of January 22d, 1867, is "An act locating the county seat of Calhoun county," and section 1st, in conformity with the object thus stated in the title, provides that the county seat of Calhoun county shall thereafter be at the farm of Simon P. Stump, on the Little Kanawha river, in said county.

Section 3d of said act provides, that the board of supervisors of said county are thereby authorized to sell any county property at Arnoldsburg, in said county. This is another and different object from that stated in the title to the act, and is, therefore, repugnant to the constitution, and void.

In the case of The State ex rel. Hlxon vs. Lafayette County Court, 41 Mo., 39, it was held that an act which had two objects, aud but one of them was stated in the title, was valid as to the object so stated in the title, and void as to the object not so stated. The constitution of Missouri, declaring that "No law enacted by the general assembly shall relate to more than one subject, and that shall be expressed in the title, but if any subject embraced in an act be not expressed in the title such act shall be void only as to so much thereof as is not so expressed."

The constitution of Missouri is clearly directory only, to the legislature, not to include more than one subject in the act, but it is not directory merely in forbidding and avoiding any subject not embraced in the title. It differs, therefore, in that from the constitution of this State, which positively forbids and avoids the act entire if it contains more than one subject, and also if that object be not stated in the title.

I think, therefore, the act of January 22d, 1867, was unconstitutional and void, and consequently the seat of justice for Calhoun remains at Arnoldsburg, where it was originally lawfully established by the vote of the people. Aud the courts held there are valid and not void, as supposed in the plaintiff's petition for the writ of habeas corpus. It appearing that the plaintiff is detained for no other cause than upon the indictment aforesaid, is not, therefore, detained without lawful authority. Therefore, it is considered that the plaintiff be remanded to the custody of the said sheriff, and that the defendant recover against the plaintiff his costs about this defence in this behalf expended.

Berkshire, J., concurred with the president.

Maxwell, J., dlssentienk. The habeas corpus is to release any one from restraint, who is detained without lawful authority. No imprisonment is illegal where the process is a justification of the officer, and process, whether by writ or warrant, is legal wherever "it is not defective in the frame of it, aud has issued in the ordinary course of justice from a court or magistrate having jurisdiction of the subject though there has been error or irregularity in the proceedings previous to the issuing of it. An officer cannot disregard process which is regular on its face, but must execute it. Cable vs. Cooper, 16 Johns., 155.

If the officer cannot allege error in the process, how can a prisoner arrested upon it do it consistently with the common law principle, that the proceedings of a court of com petent jurisdiction are not to bo reversed or set aside by a eollateral proceeding, where redress may be had by appeal, writ of error, or by any other direct means of review? That this principle is applicable in cases of habeas corpus, is sustained fully by...