George W. Eckhart v. The State.

• Decision Date: 31 July 1872
• Citation: 5 W.Va. 515
• Parties: George W. Eckhart v. The State.
• Court: West Virginia Supreme Court

5 W.Va. 515

George W. Eckhart

v.The State.

Supreme Court of Appeals of West Virginia.

July Term, 1872.

1. *The act of February:7th 1871, in relation to the Municipal Court of Wheeling, is unconstitutional so far as it attempts to confer sole jurisdiction on that court for the trial of cases involving a violation of the Revenue laws by selling ardent spirits on the Sabbath; where the party charged had given bond according to the provisions of chapter 32 of the Code.

2. The sixth section of the act purports to repeal all acts and parts of acts, inconsistent with it, but it does not take away any jurisdiction from the circuit court in such cases.

3. Part of an act may be inoperative and void, and part of it operative, but this can only be when the partsare not connected. If they are so connected with: ''Be it enacted by the Legislature of West. Virginia:

1. That the municipal court of the City of Wheeling, in the County of Ohio, be and the same is hereby invested with sole jurisdiction of bearing and determining all complaints concerning the violation of any law respecting licenses for the sale of spirituous liquors, ale, boor, porter and other intoxicating drinks, granted within the corporate limits of said city.

2. That the said municipal court shall also have sole jurisdiction to try and determine all actions upon bonds for the violation of any license granted for the sale of spirituous liquors and other intoxicating drinks granted in the corporate limits of said city.

3. The said municipal court or the judge thereof in vacation, upon Information under oath of some credible witness, that any person is selling or ottering or exposing forsaleany spirituous liquors, wine, ale, beer, porter and drinks of iike nature, contrary "to any law for licensing of said persons to sell such spirituous liquors, wine, ale, beer, porter and like drinks, sliall issue a warrant, requiring the person accused to be brought before said court at its regular term next succeeding the violation of said license law, or before the judge thereof in vacation, and in the same warrant shall require that the officer, to whom it is directed to summon the informant and such other witnesses as shall be therein named, or whose names are endorsed thereon, to appear and give evidence on the examination. And upon conviction, the person so informed upon shall be liable to the penalties already prescribed by law

4. The prosecuting attorney of Ohio county is hereby required to prosecute all said complaints of the violation of said license laws, and shall be entitled to the same fees as allowed by the Code for such cases made and provided,

5. This act is intended to divest all justices within the corporate limits of said city, from ail and any jurisdiction whatever, of all complaints and actions arising from the violation of licenses for the sale of spirituous liquors, wine, ale, beer, porter and drinks of like nature, granted within the corporate limits of said city of Wheeling; and for the unlawful selling of such spirituous liquors, wine, ale beer, porter and drinks of like nature, without license.

6. All acts or parts of acts inconsistent with this act are hereby repealed, so far as the City of Wheeling is concerned.

7. Any party aggrieved by the final judgment of said court, may appeal therefrom to the circuit court of Ohio county in the manner now provided by law. each other as to warrant the belief that the legislature intended them as a whole, and if all could not be carried into effect, the legislature could not pass the residue independently; then if some parts are unconstitutional, all the provisions which are thus connected must fall with them. 4. Any act that would seek to take away from the circuit court, jurisdiction to try such cases as the one under consideration, would be in violation of the (5th section of Article VI of the Constitution, which provides that the circuit courts shall have original jurisdiction of all crimes and misdemeanors.

The indictment in this case was found at the the March term 1871, of the circuit court of Ohio County.

The opinion of Judge Maxwell contains a sufficient statement of the points at issue.

The defendant brought the case to the court, after^judgment against him was had at the April term 1871.

Pendleton & Davenport and Cracraft for the plaintiff in error. The Attorney General for the State.

Maxwell J. Ecidiart was indicted in the circuit court of Ohio county for selling and furnishing in the city of Wheeling spirituous liquors, wine, porter, ale and beer and drinks of like nature to a certain person on Sunday; the said Eckhart at the time of the alleged selling and furnishing having a license as required, and having executed the bond required by the 12th section of chapter 32 of the Code, conditioned among other things that he would not sell or furnish such drink to any person on Sunday.

There was a demurrer to the indictment which was overruled, and a judgment rendered against the defendant below.

It is insisted here that the judgment is erroneous, because the grand jury had no jurisdiction to find the indictment, and because the court had no jurisdiction to hear and determine the case.

The ground upon which it is claimed that the circuit...