Foster v. Cooper

• Citation: 155 W.Va. 619,186 S.E.2d 837
• Decision Date: 01 February 1972
• Docket Number: No. 13157,13157
• Court: Supreme Court of West Virginia
• Parties: Frank FOSTER and Aubrey Robertson v. George M. COOPER, Judge, etc., Thirty-Second Judicial Circuit.

Page 837

186 S.E.2d 837

155 W.Va. 619

Frank FOSTER and Aubrey Robertson v. George M. COOPER, Judge, etc., Thirty-Second Judicial Circuit.

No. 13157.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 18, 1972.

Decided Feb. 1, 1972.

Syllabus by the Court

1. The Constitution of West Virginia being a restriction of power rather than a grant thereof, the legislature has the authority to enact any measure not inhibited thereby.

The legislative authority to increase or diminish the number of judicial circuits is restricted by Article 8, Section 14 of the West Virginia Constitution to enacting such legislation at any session thereof, next preceding any general election of the judges of said circuits, and any act passed at another session increasing or diminishing the number of judicial circuits is unconstitutional, null and void. Danny O. Cline, Prosecuting Atty., Sutton, for relators.

E. V. Morton, Jr., Webster Springs, for respondent.

Swadley & Taylor, James H. Swadley, Jr., Keyser, amici curiae on behalf of Mineral County Bar Assn.

CAPLAN, Judge:

The petitioners in this original proceeding in prohibition, Frank Foster, B. D. Marple and Aubrey Robertson, are residents, taxpayers and legal voters of Braxton County, West Virginia and are also the duly elected and acting commissioners of the county court of said county. In this proceeding they seek to prohibit the respondent, George M. Cooper, Judge of the Circuit Court of Braxton County, from further assuming jurisdiction as such judge and from assuming any powers or performing any such functions. A rule was granted by this Court, returnable January 18, 1972, at which time the case was submitted for decision on the petition and answer thereto and upon the briefs and oral arguments submitted and made by counsel for the parties hereto. Amicus curiae briefs were also submitted on behalf of the bar associations of Mineral and Grant counties.

The legislature at its regular session, 1971, enacted committee substitute for H.B. 700. This act, subsequently approved by the governor, amended and reenacted the provisions of Section 1, Article 2, Chapter 51 of the Code of West Virginia. It created two replica judicial circuits, one of which was the thirty-second comprised of the counties of Braxton, Clay, Gilmer and Webster. The act further provides for the appointment of a judge of said circuit by the governor in the same manner as appointments are made to fill vacancies in the office of circuit judge and provides that such appointee shall serve until his successor is elected and qualified.

Pursuant to this act the Governor of the State of West Virginia appointed the respondent, George M. Cooper, to the office of Judge of the Circuit Court of the Thirty-second Judicial Circuit. Subsequently, the respondent ordered these petitioners, as county commissioners, to pay a certain sum of money to Murleen B. Campbell as salary for her services as the court reporter. The petitioners, contending that the constitutionality of the creation of the Thirty-second Judicial Circuit was subject to question, refused to honor the respondent's order. The respondent thereupon charged these petitioners with contempt of court and the petitioners, after complying with the respondent's order under protest, instituted this proceeding.

Prior to the submission of this case for decision, B. D. Marple, one of the original petitioners, moved that his 'name be removed, deleted and withdrawn as one of the Petitioners' in the original petition. This motion was granted by this Court and the name of B. D. Marple was removed as a petitioner in this proceeding.

On February 1, 1972, this Court, by order, held that the legislative act creating the Thirty-second Judicial Circuit was unconstitutional in that it violated the provisions of Section 14, Article 8 of the West Virginia Constitution. This opinion is now filed for the purpose of stating the reasons for that decision.

The sole question in this case is the validity of the aforesaid act of the legislature creating replica judicial circuits. It is the position of the petitioners that such act is clearly unconstitutional in that it was passed at a session of the legislature other than a session next preceding the general election of the judges of the judicial circuits of West Virginia and is, therefore, in violation of the provisions of Article 8, Section 14 of the Constitution of West Virginia. The respondent, of course, takes the opposite view and says that a proper reading and construction of Section 14, Article 8 of the Constitution, when considering the need for additional circuits, compels the construction that such act is constitutional.

Pertinent to the consideration of this case is Article 8, Section 14 of our Constitution which reads as follows: 'The legislature may rearrange the circuits herein provided for at any session thereof, next preceding any general election of the judges of said circuits, and after the year one thousand eight hundred and eighty-eight, may, at any such session,...