Howard. v. Ferguson

• Decision Date: 04 June 1935
• Docket Number: (No. 8181)
• Citation: 116 W.Va. 362
• Parties: B. F. Howard et al. v. Charles W. Ferguson, Judge
• Court: West Virginia Supreme Court

116 W.Va. 362

B. F. Howard et al.

v.Charles W. Ferguson, Judge

(No. 8181)

Supreme Court of Appeals of West Virginia.

Submitted May 8, 1935.

Decided June 4, 1935.

1. Prohibition

Voters and taxpayers of a county have such inherent interest in the proper administration of justice therein that they may proceed in prohibition to prevent a person without constitutional authority from undertaking to discharge the duties of judge of the circuit court in place of the regularly elected judge thereof.

2. Courts

Under sections 10 and 14, Article VIII of the Constitution of West Virginia, rearrangements of judicial circuits may be made effective only at the expiration of the regular elective terms of circuit judges.

3. Courts

The Act of the Legislature of February 4, 1935, known as Senate Bill No. 21, transferring the county of Mingo from the eighth judicial circuit to the twenty-fourth, is unconstitutional, null and void so far as it attempts to make such transfer effective prior to January 1, 1937.

Prohibition proceeding by B. F. Howard and others against Charles W. Ferguson, Judge.

Writ awarded.

Hatcher and Kenna, Judges, dissenting.

J. N. Harman, Jr., Lively, Lively & Stambaugh and Wells Goodykoontz, for petitioners.

J. W. Copley, G. B. C. Wiles and Price, Smith & Spilman, for respondent,

Maxwell, Judge:

This is a proceeding in prohibition relating to the circuit court of Mingo County. The controversy centers in a legislative enactment of the 1935 session.

By the terms of the Act, Senate Bill No. 21, passed February 4, 1935 (Chapter 41), the County of Mingo is withdrawn from the Eighth Judicial Circuit composed of the Counties of McDowell and Mingo, and transferred to the Twentyfourth Circuit, theretofore embracing only the County of Wayne. The transfer is attempted to be made effective "on and after the first day of March, one thousand nine hundred thirty-five, or as soon thereafter as this act shall take effect."

The petitioners are B. F. Howard, Judge of the Eighth Judicial Circuit, a resident, taxpayer and legal voter of McDowell County, and J. Brooks Lawson, Fred Kopp, J. E. Wilkinson and J. M. Jordan, residents, taxpayers and legal voters of the County of Mingo. They pray that the respondent, Charles W. Ferguson, Judge of the Twenty-fourth Judicial Circuit, be prohibited "from further assuming jurisdiction as Judge of the Circuit Court of Mingo County, and from further entering any orders or decrees as such, or assuming any powers or performing any functions as such Judge," it being alleged in the petition that since March 1, 1935, the respondent has assumed to discharge the duties of Judge of the Circuit Court of Mingo County.

On the matter of procedure, the respondent urges that the actual purpose of the proceeding is to try title to a public office. He asserts that the proper course would be by mandamus or quo warranto; that prohibition is inappropriate and cannot be here invoked by the petitioners.

The procedural proposition thus urged by respondent would necessarily prevail if we were of opinion that the basic purpose of the controversy is to try title to a public office. Such, we conceive, however, is not the real object of the proceeding, although the right to the office of Judge of the Circuit Court of Mingo County is necessarily involved. This is not a personal controversy between Judge Howard and Judge Ferguson. It is a broader matter, constituting basically an effort on the part of citizens of Mingo County to prohibit from presiding in the Circuit Court of that County a man who, they aver, is precluded by the Constitution from assuming said duties under his present warrant of authority. The term for which Judge Howard was elected Judge of the Circuit Court of McDowell and Mingo Counties will not expire until December 31, 1936.

Prohibition is "an extraordinary judicial writ, issuing out of a court of superior jurisdiction and directed to an inferior court, for the purpose of preventing the inferior tribunal from usurping a jurisdiction with which it is not legally vested." High's Extraordinary Legal Remedies (3d Ed.), sec. 762. Consult: 50 Corpus Juris, p. 654; 22 Ruling Case Law, p. 2; Fleming v. Commissioners, 31 W. Va. 608, 8 S. E. 267; Johnston v. Hunter, 50 W. Va. 52, 40 S. E. 448. The Supreme Court of Appeals of this State is vested with original jurisdiction in prohibition. Constitution, Article VIII, section 3. A statute provides: "The writ of prohibition shall lie as a matter of right in all cases of usurpation and abuse of power, when the inferior court has not jurisdiction of the subject matter in controversy, or, having such jurisdiction, exceeds its legitimate powers." Code 1931, 53-1-1.

Ordinarily, prohibition is invoked by a party or parties interested in a specific matter as to which they are advised that the tribunal concerned is acting in excess or abuse of jurisdiction. But it is not necessary that the petitioner or petitioners for prohibition be directly concerned in the subject matter of the controversy, "as every citizen is interested in restraining courts within their appropriate jurisdictions." Midland Inv. Corporation v. Ballard, 101 W. Va. 591, 595, 133 S. B. 316. In State v. County Court, 97 W. Va. 615, 125 S. E. 576, there is cited eminent authority in support of the proposition that "the strict and highly technical rules with respect to parties which apply to most other extraordinary remedies, do not apply to a proceeding in prohibition, owing to the fact that it is regarded more than others as a matter of public interest, in which the state is largely interested." Consider: St. Marys v. Woods, Judge, 67 W. Va. 110, 67 S. E. 176, 21 Ann. Cas. 164; 50 Corpus Juris, p. 694.

The petitioners take the position that unless the respondent is prevented from further attempting to discharge the duties of Judge of the Circuit Court of Mingo County, there will be drawn in question the validity of orders and decrees that he may assume to enter in such capacity, and great uncertainty will thereby be injected into matters litigated in that court, both of public and of private character. This uncertainty they seek to avoid by prohibition.

There is no governmental instrumentality more vital to the ordinary administration of public affairs of a county than the Circuit Court. If the official right of him who undertakes to discharge the duties of the office of Judge of such court is open to challenge on constitutional grounds, the orderly administration of justice is thereby seriously endangered. This is of such fundamental moment in the preservation of order and in the protection of personal rights that it would seem highly expedient for representative citizens to bring the matter promptly to a head, and to seek by prohibition to prevent a great involvement of litigable matters from being precipitated in the county. In St. Marys v. Woods, Judge, supra, it was held that residents and taxpayers of a city "have such interest as will enable them to maintain a writ of prohibition against a circuit court which is proceeding to amend the charter of such city without jurisdiction to do so in the particular case." With all the more reason, it may be asserted that citizens and taxpayers of a county have such interest in the public weal as authorizes them to proceed by prohibition to prevent usurpation of authority in the entire judicial program of the county. We conclude that prohibition is appropriate in the matter at bar.

On the merits, the essential query is whether, under the State Constitution, a transfer of a county from one judicial circuit to another, may be made effective at any time other than at the expiration of the regular terms of duly elected circuit judges.

Section 14, Article VIII, reads: "The Legislature mayrearrange 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, increase or diminish the number thereof." The Act in question is in compliance with said constitutional provision in this, that it was enacted at a legislative session next preceding a general election of circuit judges. But does that provision authorize the legislature to make a change in judicial circuits effective at any time prior to the expiration of the terms for which the judges were elected? In our opinion, the necessary meaning of the provision is that such may not be done.

The section provides for (1) rearranging judicial circuits, and for (2) increasing or (3) diminishing the number thereof. These three possibilities of legislative action with reference to judicial circuits are by said section dealt with on the same plane. Circuit judges are constitutional officers. When they have been duly elected and qualified, they cannot be legislated out of office, directly or indirectly. In our judgment, it would be just as reasonable to undertake to diminish the number of circuits within the period of the elective terms of the judges thereof as it is to undertake to change the territory of a circuit within such period. If one county may be transferred from a judicial circuit within the term of the duly elected judge thereof, what is to prevent the remaining county or counties of the circuit from being transferred likewise? It would seem to be as justifiable so to transfer the remaining counties of a circuit as to transfer the one first affected. But this would be tantamount to removal from office. It cannot be clone that way. A judge cannot be removed from office except upon conviction on charges of impeachment for cause. West Virginia Constitution, Article VIII, section 17.

Interference with judicial authority, such as is here involved, is altogether out of harmony with the spirit and purpose of our fundamental law. The applicable provisions of our Constitution are not solely for the protection of the individual who happens to be a judge. Such is their...