Harbert v. The County Court Of Harrison County

• Decision Date: 21 May 1946
• Docket Number: C. C. No. 710.
• Citation: 129 W.Va. 54
• Parties: Arlos J. Harbert v. The County Court Of Harrison County, etc., et al.
• Court: West Virginia Supreme Court

129 W.Va. 54

Arlos J. Harbert

v.The County Court Of Harrison County, etc., et al.

C. C. No. 710.

Supreme Court of Appeals of West Virginia.

Submitted April 10, 1946.

Decided May 21, 1946.

1. Officers

A judge of a court of limited jurisdiction, created by the Legislature, is a public officer within the meaning of Section 38 of Article VI of the Constitution of this State, and the salary of such officer may not be increased or diminished during his term of office.

2. Constitutional Law

The judicial amendment of 1902 to the Constitution of this State, which provides that the Judges of the Supreme Court of Appeals and of the Circuit Courts shall receive such salaries as shall be fixed by law, for those now in or those hereafter to come into office, applies only to the judges mentioned in the amendment and does not authorize a change in salary of the judge of any other court during his term of office.

3. Judges

Chapter 163 of the Acts of the Legislature of 1945, effective June 8, 1945, to the extent that it attempts to increase the salary of the Judge of the Criminal Court of Harrison County from its effective date and during the present four year term of office, which began on January 1, 1945, is unconstitutional as violative of Section 38 of Article VI of the Constitution of West Virginia,

4. Statutes

If the subject matter of a statute is within the legislative power and only its provisions with respect to the time the statute shall take effect are invalid as repugnant to the limitation imposed by the Constitution of this State, which prohibits the application of the statute during the term of office of a judge of a court of limited jurisdiction, the statute, except such invalid provisions, will stand as a valid legislative enactment; but it can not become operative or legally effective until the commencement of the next term of office of the judge of such court.

5. Statutes

Repeal of a statute by implication is not favored in law.

6. Statutes

A general statute, which does not use express terms or employ words which manifest a plain intention so to do, will not repeal a former statute dealing with a particular subject, and the two statutes will operate together unless the conflict between them is so real and irreconcilable as to indicate a clear legislative purpose to repeal the former statute.

Certified from Circuit Court, Harrison County.

Mandamus proceeding by Arlos J. Harbert against the County Court of Harrison County, etc., and others, to require the payment of an annual salary of $5,000 instead of $4,000 to petitioner as judge of the Criminal Court of Harrison County. The circuit court overruled a demurrer and certified two questions to the Supreme Court of Appeals.

Reversed and remanded with directions. Kenna, President, dissenting.

Steptoe & Johnson and James M. Guiher, for plaintiff.

Powell, Clifford & Jones, for defendants.

Haymond,.Judge:

In this proceeding in mandamus, instituted in the Circuit Court of Harrison County, West Virginia, the petitioner, the Honorable Arlos J. Harbert, Judge of the Criminal Court of Harrison County, seeks a peremptory writ to require the respondents, the County Court of Harrison County, its individual members and its clerk, to pay him an annual salary of $5,000.00 instead of $4,000.00, from June 8, 1945, as provided by Chapter 163 of the Acts of the Legislature, Regular Session, 1945. The petitioner relies upon that statute and upon an earlier statute, Chapter 82 of the Acts of the Legislature, Regu- lar Session, 1937, to support his claim to the increase in salary. To the petition the respondents filed a written demurrer in which they assert that the 1945 Act, if presently applicable to the current four year term of the petitioner, to which he was elected in November, 1944, and which began on January 1, 1945, is violative of that portion of Article VI, Section 38, of the Constitution of this State which declares that the salary of any public officer shall not be increased or diminished during his term of office.

The Circuit Court overruled the demurrer of the respondents and certified to this Court these two questions:

1. Whether Chapter 163 of the Acts of the West Virginia Legislature of 1945, fixing the salary of the Judge of the Criminal Court of Harrison County, West Virginia, at $5,000.00 per year, is, as applied to the salary of petitioner Arlos J. Harbert, unconstitutional as being in conflict with the provisions of Section 38, Article VI, of the Constitution.

2. Whether, aside from the question of the constitutionality of Chapter 163 of the Acts of 1945, petitioner is entitled to receive, at least subsequent to June 8, 1945, a salary of $5,000.00 per year, and hence to the relief prayed for in his petition, by virtue of the provisions of Chapter 82 of the Acts of the West Virginia Legislature of 1937.

The first of these questions is constitutional in character; the second requires the application of principles of statutory construction. Both are of far reaching practical importance and both call for careful and painstaking consideration.

The facts in the case are not disputed and the contentions of the parties present purely legal issues.

The Criminal Court of Harrison County was created by the Legislature of this State by Chapter 27 of the Acts of the Legislature of 1909, in the exercise of the power and the authority conferred upon it by Article VIII, Section 1 and Section 19, of the Constitution. Section 1 declares that the judicial power of the State shall be vested in a Supreme Court of Appeals, in Circuit Courts and the judges thereof, in such inferior tribunals as are therein authorized, and in justices of the peace. By that section and other sections of Article VIII of that fundamental instrument the Supreme Court of Appeals, the Circuit Courts and their judges, and justices of the peace, being created and provided for by the Constitution itself, are given the status of constitutional tribunals. The inferior tribunals, for whose creation by the Legislature provision is made in Section 19, and in which class the Criminal Court of Harrison County is included, may appropriately be characterized as legislative or statutory courts.

At the time of its creation by Act of the Legislature in 1909, the salary of the Judge of the Criminal Court of Harrison County, payable out of the funds of the county, was fixed at $2,400.00 per year, a four year term of office was established, and the powers and the jurisdiction vested in the Circuit Courts in the trial of criminal cases and in the Judge of the Circuit Court of Harrison County, in vacation, as to felonies, misdemeanors and other offenses committed within that county, were concurrently conferred upon the judge of the newly created court. The act further provided that the Criminal Court should have concurrent jurisdiction with the Circuit Court in criminal cases and proceedings in general in that county.

By various statutes, enacted between the date of the creation of the Criminal Court of Harrison County and the filing of the petition in this proceeding on August 18, 1945, additional powers have been conferred and increased duties have been imposed upon that court, and it has been given jurisdiction in juvenile cases, in adoption proceedings, and in matters relating to child welfare agencies. By Section 1, Article 3, Chapter 19, Acts of the Legislature of 1945, a change in the child welfare statutes was made which requires the approval of the Judge of the Criminal Court of Harrison County, as the Juvenile Court of that county, to enable either parent, under the age of twenty-one years, of an illegitimate child, to relinquish, as outlined in the statute, such child to a licensed welfare agency.

At different times the salary of the Judge of the Criminal Court of Harrison County has been changed. By Section 4 of Chapter 12 of the Acts of the Legislature of 1919, it was increased to $4,000.00 per year. It remained at that rate until the year 1929, when by Section 4 of Chapter 146 of the Acts of the Legislature of that year it was raised to the annual sum of $5,000.00; and it continued at that figure until the end of the year 1932. During that year, due to the then existing depression, by Chapter 20 of the Acts of the Legislature, Extraordinary Session, 1932, provision was made for a reduction of twenty per cent in the salaries of public officers whose annual salaries exceeded $3,000.00. This general act, passed August 26, 1932, effective September 1, 1932, contained a provision which required the written consent to such reduction, during their terms, by the officers affected, and excepted officers whose salaries were specially fixed by any act passed at that extraordinary session of the Legislature. On August 27, 1932, the day immediately following the passage of Chapter 20 of the Acts of the Legislature, Extraordinary Session, 1932, and at the same session, the Legislature passed Chapter 27, which provided that the Judge of the Criminal Court of Harrison County, on and after January 1, 1933, at which time a new term of that office began, should receive for his services a salary of $4,000.00 per year. The petitioner, who was a member of the Legislature during the Extraordinary Session of 1932, first took office as Judge of the Criminal Court of Harrison County on January 1, 1933, and, by reason of his re-elections in 1936, 1940, and 1944, he has continued to occupy, and still occupies, that judicial position.

Chapter 82 of the Acts of the Legislature of 1937 was passed on March 9, 1937, and became effective from its passage. Its title is expressed in this language: "An Act to fix the compensation of certain elective and appointive state and county officers, to prescribe the method of fixing the compensation of other state officers, and of assistants and employees, and to repeal Chapter Twenty of the Acts of the Extraordinary Session of the Legislature of West Virginia, one thousand nine hundred and thirty-two."...