Groves v. County Court Of Grant County.
| Decision Date | 05 December 1896 |
| Citation | 42 W.Va. 587 |
| Parties | Groves et al v. County Court of Grant County. |
| Court | West Virginia Supreme Court |
Appearance is the first act of the defendant in court, and is triable by the record, which is a verity. It is the formal act by which a person against whom a suit has been commenced "comes" and submits himself to the jurisdiction of the court in person or by attorney.
And it may be for no other purpose than to put upon the record the fact that, as defendant, he is present in court, and because there can be no pleading till appearance is effected.
If the defendant makes his appearance for that special purpose, he may take advantage of the defective execution or of the non-execution of the notice or process. But, if his appearance is general, or for any other purpose, he thereby waives all objection to the defective execution or the non-execution of the notice or process.
This Court takes Judicial notice of all such acts and resolutions of the legislature, though local and private, as appear to have been relied on in the court below. See section 1, of chapter 130, of the Code.
To take from the past a specified period of time, and a single transaction as having occurred within that period, but by circumlocution described as a class, and then take as the characteristic of the class the peculiarity of having occurred within such past period of time, to mark and distinguish the class thus ap- parently created and set apart as the subject-matter to be dealt with, such law, though general in appearance, is special in effect.
So much of chapter 31 of the Acts of 1895 as provides for the relocation of county seats by a majority vote in cases where the county seat of any county in this state has, since the 1st day of January, 1872, been relocated by a special act of the legislature, is a special law, and as such is prohibited by section 39 of article VI of the Constitution, and is therefore unconstitutional and void.
C. W. Bailey and F. M. Reynolds for plaintiff in error.
I. The several subdivisions of the state may be classified and
laws enacted which will affect differently the several classes and thus be in a sense local; and yet such laws are general within the meaning of the Constitution. 11 Vroom, 123 (40 1ST. J. L.); 29 Am. Rep. 210; 42 N. J. L. 435; 39 Iowa, 112; 84 Cal. 226; 77 Pa. St. 338; 39 Fed. Rep. 651; 73 Cal. 310; 97 Mo. 543; 62 Ind. 159; Suth. St. Con. § 127; 75 N. Y. 346; 92 N. Y. 4; 107 X. Y. 593; 1 Am. St. Rep. 904 (note).
II. The vote of the people moves the county seat. 38 W. Ya.
74; 39 W. Va. 634.
III. The 'presumption of constitutionality is favorable to the act. 39 W. Ya. 144; 38 W. Ya. 338; 36 W. Ya. 803 (syllabus 2).
IY. The act is general. Chap. 31, Acts of Legislature, 1895.
Y. The act is no more special now than it was when Minear v. County Court was decided. See last six lines of page 52, Acts of 1895; 39 W. Ya. 627.
YI. The return of service was void. Code, c. 39, s. 5, c. 121, s. 1, c. 50, s. 32, c. 41, s. 6; 12 W. Ya. 756; 4 W. Ya. 493; Id. 533; 130 U. S. 301.
VII. Waiver by appearance must be for some substantive purpose and the record must be clear as to the same. 20 TsT. Y. Sup. Ct. 157; 4 II. & M. 293, 302; 37 Ver. 94; 86 Am. Dec. 690; 39 W. Va. 637.
Couch, Flournoy & Price for defendants in error, cited Code, c. 39, s. 15; 30 W. Va. 13; 15 W. Va. 609; 35 W. Va. 438; 3 W. Va. 386; 16 W. Va. 109; Const. Art. V. s. 39; 136 U. S. 313; 138 IT. S. 78; 141 IT. S. 62; 23 Am. & Eng. Enc. Law, 148 (and notes); 2 K Dak. 270; 39 W. Va. 635; 29 W. Va. 63-87; 37 Minn. 264; 42 K J. Law, 435, 440; Const. K J. Art. IV, § 7; 42 K J. Law, 51; Const. Mo. Art. IV, § 53; 75 Mo. 340; Const. Pa. (1873) Art. V, § 7; 77 Pa. St. 338; 85 Pa. 401; 122 Pa. St. 266; 40 K J. Law, 71, 80; 88 Pa. St. 258; 106 Pa, St. 377; 44 N. J. Law, 363; 47 Ohio St. 90; 21 Am. St. Eep. 780-89; 31 Ohio St. 692; 84 111. 590; 32 Kan. 431; 43 Ohio St. 112; 19 IsTev. 43; 83 Cal. 393, 394; 69 Ind. 184; 3 Am. & Eng. Enc. Law, 695 etc.; Suth. St. Con. 160; 2 K Dak. 270; 14 L. R. A. 725; Cooley, Con. Law (6th Ed.) 209 etc.; Const. Art. VIII, s. 12; 29 W. Va. 63; 30 W. Va. 58; 27 W. Va. 244; 1 Coke, Ins. 260; 1 Chit, PI. 512; Vanfleet Coll. Attack, § 526; 80 111. 307-14; 15 111. 159; 20 Am. & Eng. Enc. Law, 502; 17 Am. & Eng. Enc. Law, 471; Rob. Forms, pp. 13, 14, 96, 101, 106, 107, 115, etc.; 3 Porter (Ala.) 267; 42 Ala. 491-92; 5 Porter (Ala.) 166; 8 Porter (Ala.) 442; 35 W. Va. 443; 15 W. Va. 619, 2d pt. syl.; 1 Am. & Eng. Enc. Law, 183; 1 Moss. (Iowa) 403; 25 111. 107; 33 111. 518; 8 Neb. 109; 66 Ala. 223; Imp. Pr. C. P. 175; 1 Tidd. Pr. (3d Ed.)238; 1 Sel. Pr. 91; Steph. PI. p. 81; 7 Cowen, 366; 17 Am. Dec. 525 (note); 2 Tuck. Com. 230 (margin 236); 3 Peters, 459; 17 Wall, 545; Bart. Law Pr. 314-315; Fed. Jud. Act, 1789, § 11; Peters, 0. C. Rep. 489; 3 Mass. C. C. Rep. 158; 4 Minor's Inst. 296 (Margin 274); 22 Am. & Eng. Enc. Law, 207 (note 1); Fost. Fed. Prac, 198; 31 W. Va. 472.
Holt, President:
On writ of error to judgment of the Circuit Court of Hampshire county, rendered on the 6th day of December, 1895, upon a writ of certiorari. On the 18th day of June, 1895, the County Court of Grant County, upon the petition of John B. Ford and seven hundred and eighty nine other voters of that county, entered an order directing a special election to be held on the 27th day of August, 1895, at the several voting places, upon the question of the relocation of the county seat of Grant county from Petersburg, the present seat, to Maysville, the original county seat. This election was ordered to be held under the provisions of section 15 of chapter 39 of the Code as amended and re-enacted by chapter 31 of the Acts of the Legislature (page 51) of the year 1895. The special election was held in pursuance of the statute and of the order of the county court, and the court met in special session, canvassed the returns, and ascertained and declared the result to be that eight hundred and seventy six votes were cast in favor of the relocation of the county seat at Maysville, and six hundred and four votes were cast against relocation; being a majority of two hundred and seventy two of all the votes cast, but lacking twelve votes of being three-fifths of all such votes. The amended section 15 required generally that there should be three-fifths of the votes cast for relocation in order to authorize such relocation. But in the body of the act introduced, as the new feature of the section 15 as amended and re-enacted, it prescribed: "That where the county seat of any county in this state has since the first day of January, 1872, been relocated by a special act of the legislature, in such case, if a majority of all the votes cast at said election upon the question be in favor of the relocation of the county seat at either of the places voted for, the said county court should enter an order declaring the place so receiving a majority of all the votes cast, therefor, to be the county seat of said county from and after that date." Thereupon in pursuance of the statute, the county court entered an order declaring that the county seat of Grant county was relocated at Maysville, in said county, and directed the records, books, papers, etc. pertaining thereto to be forthwith removed to said county seat of Maysville, and directing the courts to be thereafter held at a certain building known as the "Old Courthouse," at Maysville. John B. Groves and others, whose names were set forth therein, presented their petition to the judge of the circuit court, praying for a writ of certiorari to be awarded to such judgment and action of the county court. The judge in vacation awarded the writ, which was issued on the 5th day of September, 1895. On the 22nd day of October, 1895, the circuit court of Grant county entered an order removing the case to the circuit court of Hamp- shire county. And on the 4th day of December 1895, a final order was entered, reversing the order of the county court of Grant county on 2d September, 1895, reciting that: "As the number of votes cast at said election in favor of the relocation at Maysville was eight hundred and seventy six, and those against such change was six hunhundred and four, and that as the legal number of votes necessary to effect a relocation is three-fifths of all the votes cast, the result of such election, as so ascertained, is insufficient for the purpose of effecting such relocation, and such county seat is not relocated." This decision was evidently based upon the view taken by the learned judge that the part of the act of 1895 mentioned, under which the election was held and the result declared, was unconstitutional.
On the 13th day of February, 1872, the legislature passed an act saying: "That the county seat of the county of Grant should cease to be at Grant Court House twenty days after the passage of this act, and shall from and after the expiration of twenty days be located at Petersburg in said county." Grant Court House and the town of Maysville designate the same place. Since the 1st day of January, 1872, no other county seat in this state has been relocated by a special act of the legislature, for the Constitution completed on the 9th day of April, 1872, was ratified and adopted by the vote of the people on the fourth Thursday (22d day) of August, 1872, and from and including that day became operative and in full force. Section 39 of article VI of the Constitution () reads as follows: ...
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