State v. Mounts.

• Decision Date: 15 February 1892
• Citation: 36 W.Va. 179
• Parties: State v. Mounts.
• Court: West Virginia Supreme Court

36 W.Va. 179

State

v.Mounts.

Supreme Court of Appeals of West Virginia.

Submitted January 21, 1892.

Decided February 15, 1892.

1. Constitutional L aw.

The act of the legislature passed on the 27th day of February, 1891 (Acts 1891, c. 42) in relation to petit juries, and embraced in the Code as chapter 116, p. 773, is not in violation of the constitution of this State, but is a valid and constitutional act.

2. Constitutional Law.

The thirtieth section of article VI, of the constitution of this State concludes in the following language: "And no act of the legislature, except such as may be passed at the first session under this constitution, shall take effect until the expiration of ninety days after its passage, unless the legislature shall by a vote of two thirds of the members elected to each house taken by yeas and nays otherwise direct." Held, that the word "passage" in this section relates to the date of the passage of the act by the two houses, and not to the date of its approval by the governor; and that, the act in question having passed both houses on the 27th of February, 1891, went into effect on the 28th day of May following.

3. Constitutional Law Governor.

Article V. of the constitution of this State provides that'"the legislative, executive, and judicial departments shall be separate and distinct, so that neither shall exercise the powers properly belonging to either of the others; nor shall any person exercise the powers of more than one of them at the same time, except that justices of the peace shall be eligible to the legislature." It follows from this section that the governor has no legislative functions to perform, and his approval of an act of the legislature, which is to take effect not at its passage, but after the expiration of ninety days from its passage, relates back to the date of passage by ihe legislature.

4. Constitutional Law.

In computing the ninety days required by the constitution, it is immaterial whether we count the day of passage and reject the ninetieth day, or whether we include the ninetieth lay and exclude the day of the passage of the act. An act passed on the 27th day of February, 1891, will, under said constitutional provision, take effect on the 28th day of May, 189.1.

5. Construction op Statutes Jury Commissioners Office

Term of Office.

The jury act under consideration prescribes that the jury commissioners shall be appointed by the Circuit Court, or the judge thereof in vacation, and that "their term of office shall be four years, and shall commence on the 1st day of June next after their appointment," etc. Held, that an appointment made by a circuit judge under this law on the 1st day of June, 1891, conferred upon the appointee the office of jury commissioner, and that his term of office commenced on the 1st day of June, 1891.

W. W. Adams for appellant cited Const, Art. VI, sees. 30, 40; Id. Art. Vll, sees. 8, 14, 15; 6 Wall. 502; 104 U. S. 479; 1 Cal. 408; 20 Vt. 654; 18 Ind. 24; 15 Wis. 156; 3 Heisk. 442; IT. S. Const. Art. I, sec. 7, cl. 2; Cool. Const. Lim. 188, 189; Id. 89; Id. 105; Id. 220; Suth. Stat. Constr. § 104; Sedg. Stat. Const. Law 67; 2 Sto. 580; 19 W. Va. 67; Const. Art. IV, sec. 8; Id. Art. VIII, sec. 1; 6 W. Va. 577; 6 Wis. 605; 11 Wis. 50; 26 Ala. 165; 3 Gray 476; 35 Barb. 264; 14 Micb. 276; 18 la. 261; 10 Bosw. 366; 7 Col. 230; 13 Oreg. 17; 118 IT. S. 425, 44L- 446; 1 J. J. Marsh. 206; 10 Mich. 250; 22 W. Va. 671; 24 Wend. 540, 541; 25 la. 11.

Attorney-General Alfred Caldwell for the State cited Acts 1891, c. 42; Cool. Const, Lim. (6th Ed.) 187; Id. 750-75; 1 Lev. 91; 4 T. II. 660; Mart. (X. C.) 26; 5 Jones L. 36; 33 Geo. Ill, c. 13; Const. Art. VI, sees. 30, 31; Id. Art. VII, sees. 14, 15; 12 li. I. 310; 104 Ind. 97; 37 La. Ann. 788; 29 Pa. St. 129; 3 Brev. 516; 24 Kans. 618; 57 Wis. 110; 56 Pa, St. 436; 7 Col, 285; 18 Pla. 557; 17 Tex. App. 76; 61 Wis. 211; 34 Ark. 263; 3 Utah 334; 56 Cal. 83; 1 Dak. Ter. 308; 105 Mass. 185; 60 Wis. 133; 1 Idaho (JX. S.) 349; 94 111. 214; 47 X. Y. 330; 97 111. 234; 32 Ind. 313; 14 Mo. 283; 27 Wis. 406; 43 Ala. 598; 33 Ga. 344; Code c. 39, s. 29; 34 W. Va. 207; Const. Art. XI, sec 40; 19 W. Va. 67; Code 105, s. 4; Const, Art, XIII, sec. 4; Code 1063; Code, c. 4, s. 10; 114 Mass. 249-251; 122 111. 420; 62 Wis. 154; 10 Mich. 250; 9 Mass. 231; 21 Ohio St. 610; 38 Conn. 449; 36 Conn. 432; 3 Head. 690; 16 Pet. 71.

Lucas, President:

This was a prosecution in the Circuit Court of Logan county for a detestable and abominable crime against nature. The jury found the prisoner guilty, and the Circuit Court sentenced him to three years' confinement in the penitentiary.

Upon, the trial there was reserved for him the following bill of exceptions:" The State of West Virginia v. Bud Mounts, Indictment for buggery.

Be it remembered, that upon the calling of this case the court proceeded to have a jury selected for the trial of the prisoner from the jurors who had been selected and drawn by the jury commissioners of this county under the present jury law of this State, and the prisoner objected thereto, and moved to quash the array of jurors, (1) because of the unconstitutionality of said jury law; (2) because the term of office of the jury commissioners of this (Logan) county does not begin until the first day of next June, (1892;) (3) because said jury law had not gone into operation until after the time at which the jury commissioners of this conn- ty were appointed. And in support of his objection and motion the prisoner introduced the record, to wit:

'In vacation. By virtue of and in pursuance to chapter 116 of the Code of West Virginia, as amended and re-enacted by chapter 42 of the acts of the legislature of 1891, I, Thos. IF. liarvey, judge of the Circuit Court of Logan county, do hereby constitute and appoint H. S. White and Dr. M. F. French as the two jury commissioners of the Circuit Court for Logan county; the said H. S. White to serve for the period of four years, and the said M. F. French for the period of two years. And the clerk of said Circuit Court is hereby directed to enter this order in the law order-book of said court, and to cause the said parties to be at once notified of their appointment.

'Done in vacation, this 1st day of June, 1891.

Thos. H. Harvey.

And proved to the court that the jury commissioners of this county who selected said jurors were not appointed until the 1st day of, 'une, 1891. But the court overruled the objection of the prisoner and overruled also his said motion, to all of which action of the court the prisoner excepted, and the court proceeded to have the jury selected, and, when the jury was selected to try this cause, the prisoner objected to said jury, and moved to quash the panel, and discharge the jury, for the reasons aforesaid; which objection and motion the court overruled, and proceeded to try the case, to all which the said prisoner excepted, and tendered this, his bill of exceptions; and the court proceeded with the trial of the case, and the jury rendered a verdict of guilty of buggery, as charged in the indictment against said prisoner; and the prisoner then moved the court to set aside said verdict, and grant him a new trial, which motion the court overruled, to which ruling the prisoner excepted.

And this bill of exceptions is accordingly signed, sealed,

and made a part of the record in this cause this_day

of October, 1891.

Thos H. Harvey." The only section of the jury act passed February 27, 1891, which it will be necessary to quote in this connection is the third (see Code 1891, c. 116, p. 773) as follows:

"(3) There shall be two jury commissioners of the Circuit Court for each county. They shall be of opposite politics, citizens of good standing, resident in the county for which, they are appointed, and well-known members of the principal political parties thereof. They shall be appointed by the circuit court, or the judge thereof in vacation, of their respective counties. Their term of office shall be four years, and shall commence on the first day of June next after their appointment; but the first two shall be appointed one for two years, and the other for four years and thereafter, alternately, for the full term of four years. They may be removed from office by the court or judge having the power of appointment, for official misconduct, incompetency, habitual drunkenness, neglect of duty, or gross immorality. Vacancies caused by death, resignation, or otherwise shall be filled for the unexpired term in. the same manner as the original appointments. The jury commissioners shall keep in a well-bound book a record of the proceeding, to be preserved by the clerk of the Circuit Court in his office. They shall receive two dollars per day for each day necessarily employed as such jury commissioners, payable out of the county treasury, upon the order of the Circuit Court. The first appointment of said commissioners shall be made within thirty days after this act takes effect. The jury commissioners of each county shall, at the levy term of the County Court thereof annually, and at any other time when required by the Circuit Court of such county, without reference to party affiliations, prepare a list of such inhabitants of the county, not exempted as aforesaid, as they shall think well qualified to serve as jurors, being persons of sound judgment, and free from, legal exception, which list shall include at least twenty persons for every thousand inhabitants in such county, but in no case shall such list include a less number than one hundred persons. But the name of no person shall be put on such list who may have requested the jury commissioner, or either of them, 'by himself or another person, to have his name placed on such list," etc.

It is first objected against this law that it is unconstitu- tional, in that it confers upon the courts or judges of the state the power of appointing officers, and to sustain this position the eighth section of the...