Foster v. Cooper, No. 13157

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

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.

[155 W.Va. 620]

Page 838

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 [155 W.Va. 621] 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...