McConiha v. Guthrie

• Decision Date: 09 December 1882
• Citation: 21 W.Va. 134
• Court: West Virginia Supreme Court
• Parties: McConiha et al. v. Guthrie, Judge, &c., et al.

21 W.Va. 134

McConiha et al.

v.Guthrie, Judge, &c., et al.

Supreme Court of Appeals of West Virginia.

Submitted August 19, 1882

Decided December 9, 1882.

1. Some of the general principles of law stated, governing writs of prohibition, their uses and application. See opinion, (p. 140.)

2. The rule is well established, that where the inferior court has originally jurisdiction of the cause, the writ of prohibition will lie only where such court, during the proceedings or in the conduct of the trial, clearly exceeds its Legitimate powers In some collateral matter arising in the cause over which it has no authority; but unless it has so exceeded its authority, on an application for such writ the court above will not enquire whether it has decided right or not. (p. 142.)

3. The inferior court having general jurisdiction of the subject matter, it has the right and authority to determine, whether or not it has acquired jurisdiction of the particular case by a sufficient service of process or notice upon the defendant. Andany error committed in that regard will not be an excess or abuse of its jurisdiction, but an error in adjudicating a matter within its legitimate authority, and the remedy for such error is by writ error or certiorari, and not by writ of prohibition, (p. 142.)

4. The courts do not favor the repeal of a statute by implication; and in construing a prior and a subsequent statute, relating to the same subject matter, the latter will not be held to be a repeal of the former, unless the repugnancy between them is irreconcilable; and consequently, where the prior statute is general in its terms and prohibits the taking of a certain species of property in any case whatever, and the subsequent statute is limited or special in its terms and authorizes the taking of such property in certain described localities only, the latter will be held to be a limitation or qualification of the former, and the prohibition will apply to all cases except to the localities thus specified in the subsequent statute; and an express repeal of the qualifying statute will restore the prohibition in the general statute to its original force, and it will then operate as though the qualifying statute had never existed, (p. 148.)

5. Section 5 of chapter 52 of the Code, as amended by chapter 88 of the Acts of 1870, is in force in this State; and therefore, if a judge of the circuit court, having general jurisdiction of proceedings to condemn lands for railroad purposes, on the application of a railroad company entertains such proceedings and appoints commissioners to view and ascertain the compensation to be paid for lands, on which there are dwelling-houses of the owners, without the consent of such owners, and makes an order that such railroad company may, upon paying into court the compensation ascertained by such commissioners, take such lands for the use of its railroad, without excepting such houses and a space within twenty feet of each of them, as provided in said section 5, he thereby exceeds his legitimate powers, and a writ ' of prohibition will be awardrd by this Court, on the petition of such owners, to prohibit him from proceeding therein and said railroad company from invading or taking such houses or the land within twenty feet of any of them. (p. 149.)

A petition by James D. McConiha and others for a writ of prohibition against P. A. Guthrie, judge of the circuit court of the county of Kanawha, and the Winifrede Railroad Company to restrain the said judge and the said company from all proceedings for the condemnation ot certain lands, houses, &c.

The facts of the case are fully stated in the opinion of the Court.

James H. $ James F. Brown, James H. Ferguson and E. Willis Wilson attorneys for petitioners.

E. B. Knight and William H. Hoge man attorneys for defendants.

Snyder, Judge, announced the opinion ot the Court:

James D. McConiha trustee and others, on the 26th day of July, 1882, presented to a judge of this Court, in vacation their petition for a writ of prohibition against F. A. Guthrie judge of the circuit court of Kanawha county and the Winifrede Railroad Company. The said petition represents, that on the 12th day of June, 1882, the said railroad company filed its petition in the circuit court of Kanawha county to take and acquire the title to certain lands of petitioners therein described; that such proceedings were had thereupon that, on the 8th day of July, 1882, said circuit court adjudged that said applicant had lawful right to take said lands for the purposes stated in said petition and appointed commissioners to ascertain the just compensation to be paid petitioners for the same; that petitioners objected to said court entertaining said application and proceeding on said petition, because, it neither had jurisdiction of the persons of all or any of petitioners, nor of the subject-matter ot controversy, and presented said objections by motions, pleas and otherwise; that said commissioners have not yet proceeded to execute their authority except to go upon said lands to view the same, but have appointed the 31st day of July, 1882, as the day upon which they will proceed to hear evidence and execute said authority.

"Your petitioners now allege that it is an usurpation and abuse of power upon the part of said circuit court to entertain jurisdiction upon said petition and application and proceeding to condemn said lands, and that said court has exceeded its legitimate powers therein; because, Eirst Notice of said application was not given to any or either of your petitioners as required by law; Second Dwelling houses of your petitioners are situated upon the lands proposed to be taken; and Third Other defects of jurisdiction appearing upon the record."

The said petitioners, therefore, pray that a writ of prohibition issue, &c

Pursuant to the prayer of said petition the said judge of this Court awarded a rule against said F. A. Guthrie, judge, &c, and the said Winifrede Railroad Company to show cause &c, returnable to this Court, at its session in Charlestown, on the 19th day of August, 1882.

The said F. A. Guthrie, judge, &c, and the said Winifrede Railroad Company appeared in Court on the said 19th day of August, 1882, and filed separate answers to said petition and rule. The said railroad company, in its answer, says: ulst. That sufficient and legal notice of the application mentioned in said petition, made by this defendant to said circuit court of Kanawha county, to take certain property, set out and described in said petition and the plats exhibited therewith, was given in the mode and manner required by law to all parties entitled to such notice; and whether such notice was given or not was a matter within the province and jurisdiction of the said circuit court to try and determine, and if any error has been committed by the said court in the adjudication of that matter, the remedy is by appeal to this Court and not by writ of prohibition. 2d. That it is true there is a dwelling house upon each of the lots of land proposed to be taken by this defendant in said application, designated on the plats and in the pleadings in the record, as lot No. 1 and lot No. 3; but there is no dwelling house upon the lot proposed to be taken by this defendant in said application, designated on said plats and in said pleadings, as lot No. 2.

"And the defendant denies that the fact that there is a dwelling house upon each of said lots, Nos. 1 and 3, in any way interferes with or obstructs the defendant's right to take the same upon paying to the parties entitled thereto the compensation and damages required by law, or in any way deprives the said circuit court of its jurisdiction to try and determine the defendant's application to take said lots and to ascertain and adjudicate in the manner required by law the compensation and damages the defendant shall be required to pay therefor. 3d. That there are no defects whatever in jurisdiction appearing upon the said record "That no reason whatever is shown in said petition and record why the said circuit court should not entertain jurisdiction of the aforesaid application of the defendant as to the said lot No. 2, and try and determine the same, and no sufficient and valid reason is shown why the said circuit court should not entertain jurisdiction of said application and try and determine the same as to the said lots Nos. 1 and 3.

"Wherefore the said defendant prays that the said writ of prohibition do not issue."

The record exhibited with the aforesaid petition shows: that the said Winifrede Railroad Companj is a corporation created by and under chapter 17 of the Acts of 1881 of this State, and its charter is dated November 16, 1881; that on the 20th day of May, 1882, the said railroad company gave the petitioners, Jas. D. McConiha trustee and others, written notice that it would, on the 12th day of June, 1882, apply to the circuit court of Kanawha county for the appointment of commissioners to view and ascertain compensation to the owners for certain tracts of land situate in Kanawha county between the Chesapeake and Ohio railway and the Kanawha river above the mouth of Field's creek," which tracts of land will be more fully described in the within application and accompanying plat to he filed in said court on the day aforesaid," and that application will also be made for such orders and proceedings as may be necessary to invest the railroad company with a fee simple title to said tracts of land, which are required and intended to be appropriated by it for the use of its railway; that on the said 12th day of June, 1882, the said Winifrede Railroad Company filed in said circuit court its written application or petition accompanied by plats fully describing the lands proposed to be taken; that the lands thus described consist of three lots or parcels, the first containing three acres, two roods and twelve feet, the second one acre, one rood, thirty-eight poles and...