Morris v. Sevy

• Decision Date: 03 December 1946
• Docket Number: No. 9826,9826
• Citation: 129 W.Va. 331
• Parties: Roy K. Morris v. Forest E. Sevy, Justice, etc.
• Court: West Virginia Supreme Court

129 W.Va. 331

Roy K. Morris

v.Forest E. Sevy, Justice, etc.

No. 9826

Supreme Court of Appeals of West Virginia.

Submitted October 1, 1946.

Decided December 3, 1946.

1. Prohibition

"In a proper case, prohibition lies to test the constitutionality of an act of the Legislature, under Code, 53-1-1, which provides that prohibition lies '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.' ". Simms v. Dillon, Judge, 119 W. Va. 284, Pt. 1, Syl.

2. Courts

The Court of Common Pleas of Kanawha County has original jurisdiction in proceedings in quo warranto, habeas corpus, mandamus, and prohibition, concurrent with that of the Circuit Court of said county. But its rulings are subject to review on writ of error to the Circuit Court of said county.

3. Statutes

"An amendment to a statute by article and section, which is germane and conforms to the general purpose of the statute being amended, does not violate Section 30 of Article VI of the Constitution of this State, which inhibits the Legislature from passing an act embracing more than one object, and which requires that object to be embraced in the title thereof." State v. Huber and State v. Falletty, 129 W. Va. 198, Pt. 1 Syl.

4. Statutes

The amendment made by the Legislature to subsection (m) of Section 13, Chapter 12, Acts of the Legislature, 1937, by Chapter 15, Acts of the Legislature, 1945, which adds to subsection (m) the words "Provided, That no juke box or other musical instrument of like character shall be played or operated after eleven o'clock p. m. on any week-day and at no time on Sunday", is germane to the general purpose of the statute being amended.

5. Constitutional Law

The amendment made by the Legislature to subsection (m) of Section 13 of Chapter 12 of the Acts of the Legislature, 1937, by Chapter 15, Acts of the Legislature, 1945, is not unconstitutional, as discriminatory, or otherwise, under either the due process clause or the equal protection clause of Article XIV of the Constitution of the United States, or any provision of the Constitution of this State.

Error to Circuit Court, Kanawha County.

Proceeding in prohibition by Roy K. Morris against Forest E. Sevy, a justice of the peace, Charleston District, Kanawha County, West Virginia, to prohibit the respondent from proceeding further in the prosecution of a criminal charge against the petitioner. To review an order of the Circuit Court of Kanawha County, in effect affirming an order of the Court of Common Pleas of that county, denying the writ prayed for, the petitioner brings error.

Rulings affirmed.

Riley, Judge, dissenting in part.

Salisbury, Hackney & Lopinsky, Samuel D. Lopinsky and Jackson D. Altizer, for plaintiff in error.

Ira J. Partlow, Attorney General and Kenneth E. Hines, Assistant Attorney General, for defendant in error.

Fox, Judge:

This is a proceeding in prohibition instituted in the Court of Common Pleas of Kanawha County, seeking to prohibit Forest E. Sevy, a Justice of the Peace of said county, from further proceeding in the prosecution of a criminal charge against the petitioner, Roy K. Morris, then pending before him, and based upon an allegation that he permitted the playing of a juke box or other musical instrument of like character at his place of business, used in the retail sale of nonintoxicating beer, after eleven o'clock p. m. on week-days and on Sundays, at any time, in violation of subsection (m) of Section 13 of Chapter 15, Acts of the Legislature, 1945. From an order of the Circuit Court of Kanawha County, in effect affirming an order of the Court of Common Pleas of said county, denying the writ prayed for, petitioner prosecutes this writ of error.

From the petition filed in the proceeding in the court below, it appears that petitioner, Roy K. Morris, was, at that time, the holder of a Class A license to sell nonintoxicating beer at retail, and to maintain an establishment for such sale at No. 450 Ferry Street, presumably in the City of Charleston, in said county, under the name "Cavalier Grill"; that on September 20, 1945, complaint having been filed, a warrant for his arrest was issued by respondent, Forest E. Sevy, Justice, for the alleged violation of Section 13, Chapter 15 of the Acts of the Legislature, Regular Session, 1945, particularly subsection (m) of Section 13; that he was apprehended under said warrant and appeared before the Justice aforesaid and gave bond for his appearance for trial; that petitioner was advised that the charge against him was for the operation of a juke box or other musical instrument of like character, in violation of subsection (m) aforesaid; and the petitioner, neither admitting nor denying such alleged violation, contended that the section itself was an unconstitutional exercise of legislative power, and solely on this ground a writ of prohibition was sought. A demurrer to this petition was sustained, and the rule to show cause theretofore awarded thereon, was discharged.

Though not raised on the record by any party in interest, the question whether the remedy of prohibition lies for the sole purpose of testing the constitutionality of an act of the Legislature, is squarely presente'd. It would, on first impression, seem that inasmuch as justices of the peace, are by Section 13 of Chapter 15, Acts of the Legislature, 1945, given jurisdiction of offenses committed under said chapter, concurrent with other courts possessing criminal jurisdiction, and in which any constitutional question arising from the act might be determined, a justice of the peace could, in the exercise of that jurisdiction, determine the question of the constitutionality of the act involved, and that there would be no place for the exercise of the extraordinary remedy of prohibition. Judge Brannon held that view, as stated by him in McDonald v. Guthrie, Judge, 43 W. Va. 595, 27 S. E. 844. Later cases, however, take the opposite view. In State, etc. v. Anderson, 89 W. Va. 1, 109 S. E. 782, it was held that prohibition could be invoked to prevent a circuit court from proceeding in the trial of an indictment for a felony, where the statute failed to make the offense involved anything more than a misdemeanor; in State, etc. v. Robinson, Judge, 96 W. Va. 556, 123 S. E. 575, prohibition was awarded against a prosecution under what was held to be a void ordinance of the city of Wheeling; and in Simms v. Dillon, Judge, 119 W. Va. 284, pt. 1 syl., 193 S. E. 331, it was held: "In a proper case, prohibition lies to test the constitutionality of an act of the Legislature, under Code, 53-1-1, which provides that prohibition lies '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.' " For a discussion of the question, see 42 Am. Jur., 168.

The next question, raised on the demurrer and briefs, is whether the Court of Common Pleas of Kanawha County has jurisdiction in proceedings in prohibition. It is contended by respondent that in this case only the Circuit Court of Kanawha County and this Court have jurisdiction in prohibition. The answer depends upon the construction of the applicable terms of our Constitution, and the Act of the Legislature creating the Court of Common Pleas of Kanawha County. Section 1 of Article VIII of the Constitution of this State, provides: "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 herein authorized and in justices of the peace." Section 19 of Article VIII provides: "The legislature may establish courts of limited jurisdiction within any county, incorporated city, town or village, with the right of appeal to the circuit court, subject to such limitations as may be prescribed by law; * * *." Section 1 of Chapter 109, Acts of the Legislature, 1915, provides: "That a court of limited jurisdiction is hereby established within and for the county of Kanawha, to be held and presided over by a judge to be selected as hereinafter provided, which court shall be named and designated as the 'Court of Common Pleas of Kanawha County' ". Section 2 thereof provides: "The said court shall have original jurisdiction within the county of Kanawha, concurrent with the circuit court of said county, in all civil causes, both at law and in equity, except where it shall appear that the matter or thing in controversy exceeds in value the sum of one hundred thousand dollars; subject to the right of appeal to the circuit court of Kanawha county, as hereinafter provided." The jurisdiction of the court was subsequently extended to include controversies where the matter involved did not exceed in value the sum of five hundred thousand dollars, but that change is not important here. Section 17 of the Act creating the court provides: "Appeals may be allowed and writs of error and supersedeas awarded to the judgments, decrees and orders of said court, by the circuit court of said county, or the judge thereof in vacation in the following cases: * * * (5) in any case of quo warranto, habeas corpus, mandamus or prohibition." It will be observed that the Court of Common Pleas of Kanawha County is a court of limited jurisdiction in two respects: (1) Its jurisdiction is limited to Kanawha County; and (2) it may not take jurisdiction over cases where the matter or thing in controversy exceeds in value the sum of five hundred thousand dollars.

The Constitution expressly confers upon courts of limited jurisdiction judicial power, subject to review by a circuit court. There is no express limitation in the Constitution on the power that may be granted, though inferentially and necessarily the powers of the court created by the Legislature must, in some...