Poling v. Barbour County Court

• Decision Date: 19 November 1935
• Docket Number: 8197,8198.
• Citation: 182 S.E. 778,116 W.Va. 580
• Parties: POLING v. BARBOUR COUNTY COURT et al. (two cases).
• Court: West Virginia Supreme Court

182 S.E. 778

116 W.Va. 580

POLING v. BARBOUR COUNTY COURT et al. (two cases).

Nos. 8197, 8198.

Supreme Court of Appeals of West Virginia.

November 19, 1935

Submitted October 30, 1935.

Syllabus by the Court.

1. In Acts 1933, 1st Ex.Sess., c. 51, the provision that a circuit court or judge may fill (by appointment) a vacancy in the office of prosecuting attorney is unconstitutional.

2. Code 1931, 3-10-10, empowering a county court to fill by appointment a vacancy in the office of prosecuting attorney is constitutional.

Error to Circuit Court, Barbour County.

Prohibition proceeding and mandamus proceeding by H. J. Poling against the County Court of Barbour County and others. Judgments for plaintiff, and defendants bring error.

Judgment in each case reversed and petitions dismissed.

Kittle & Kittle, Dayton R. Stemple, and D. D. Stemple, all of Philippi, for plaintiffs in error.

Wm. T George, of Philippi, for defendant in error.

HATCHER Judge.

These cases involve the validity of an appointment by the circuit court to fill a vacancy in the office of prosecuting attorney, and the validity of a like appointment by the county court.

The prosecuting attorney of Barbour county resigned, and the circuit court appointed H. J. Poling in his stead. Later, the county court appointed D. R. Stemple to fill the vacancy. Poling brought both of the above proceedings in the circuit court. In the first case (No. 8197) he sought to have the county court prohibited from recognizing its appointee as prosecuting attorney and to have him prohibited from acting as such. In the second case (No. 8198) Poling sought to have the county court mandamused to recognize him as prosecuting attorney and to pay him the salary of that office. The circuit court rendered judgment in favor of the petitioner in each case.

The petitioner claims under a statute; the respondents resist under the Constitution. Our first Constitution (1862-63) contained no expression directly on this subject. In 1863 the Legislature provided that a vacancy in the office of prosecuting attorney of a county court be filled by the circuit judge of the county "if deemed necessary." Acts, ch. 100, § 46 (re-enacted Acts 1864, ch. 34). That appointment was made mandatory on the circuit court (or judge thereof in vacation) by Code 1868, c. 4, § 5. The Constitution adopted in 1872, art. 6, § 40, prescribed "The Legislature shall not confer upon any court, or judge, the power of appointment to office, further than the same is herein provided for." It was therein provided that the officers of the Supreme Court, except the reporter (the Attorney General), should be appointed by the court or judges in vacation; that upon a vacancy in the office of clerk of the circuit court the judge of that court should appoint a clerk; that upon a vacancy in the office of justice the county court should appoint a justice; and that it should appoint coroners, overseers of the poor, and surveyors of roads. The Legislature of 1872-73 amended and re-enacted chapter 4 of the Code of 1868, omitting section 5 entirely. See House Journal, pp. 329, 583, 759, Senate Journal, pp 749, 766, 767, and Acts, chapter 121. The same Legislature directed that a vacancy in the office of prosecuting attorney should be filled by the president of the county court. Acts, chapter 177, § 44. In 1881 the Legislature returned to its first notion-appointment by the circuit court or judge. Acts, chapter 10, § 10. Through the vicissitudes of the next fifty years, the Legislature was constant. But in 1931 the Revisors of the Code, 3-10-10, reminded the Legislature that the circuit court or judge was inhibited by the Constitution (article 6, § 40) from filling a vacancy in the office of prosecuting attorney. Under this nudging the Legislature conferred that power upon the county court. Convinced against its will, the legislature remained of the same opinion still, and in 1933, Acts 1st Extraordinary Session, c. 51, returned the power of appointment to the circuit court or judge, but did not expressly repeal the statute of 1931.

Counsel for petitioner make the four following points: (1) That legislative construction of the Constitution is entitled to great consideration and the legislative construction of article 6, section 40, is on petitioner's side. They stress the fact that nine members of the Constitutional Convention of 1872 who, as they say, "knew of the constitutional provision and knew its history and meaning," were members of the Legislature of 1881, which conferred the power of appointment on circuit courts and judges. It appears, however, that ten members of the Convention of 1872, who should have known equally well of the constitutional provision, were members of the Legislature of 1872-73, which took the opposite view to that of the Legislature of 1881. We are given no reason for preferring the voice of the nine fathers in 1881 to that of the ten fathers in 1872-73. The inconsistency of legislative construction hereon destroys its interpretative value.

(2) That this court has upheld other statutes which confer appointive powers on circuit courts. Those statutes, however, relate to court officers, and courts have the inherent right to appoint their own officers unaided by statute. Our leading case on the subject is State v. Mounts, 36 W.Va. 179, 184, 14 S.E. 407, 15 L.R.A. 243, where the distinction was drawn between public officers and mere officers of the court, and the statute providing for appointment of jury commissioners by the circuit court was upheld because jury commissioners are court officers. The ruling in that class of cases does not support the act of 1933 (empowering circuit courts and judges to appoint prosecuting attorneys) in any particular, since prosecuting attorneys are primarily public officials. Furthermore, we are of opinion that the constitutionality of a statute should be determined by reference directly to the Constitution itself, rather than by comparison with another, though valid, statute.

(3) That the Constitution should be construed most liberally in favor of the validity of the act of 1933. Liberal construction, however, does not include violence to accepted verbal signification. "The legislature shall not confer upon any court, or judge, the power of appointment to office, further than the same is herein provided for," sayeth the Constitution. That language is its own expositor. The words are too plain to mistake. The mandate is too positive to evade. No provision is made in the Constitution whereunder the power of appointing a prosecuting attorney may be conferred on circuit courts and judges. Therefore, we are forced to conclude that the act of 1933 in so far as it would confer that power on circuit courts and judges violates ...