Weil v. Black

• Decision Date: 05 October 1915
• Citation: 76 W.Va. 685,86 S.E. 666
• Court: West Virginia Supreme Court
• Parties: WEIL . v. BLACK, Judge.

86 S.E. 666

76 W.Va. 685

WEIL .

v.BLACK, Judge.

Supreme Court of Appeals of West Virginia.

Oct. 5, 1915.

(Syllabus by the Court.)

Error to Circuit Court, Kanawha County.

Prohibition by A. Leo Weil against Hon. H. K. Black, Judge, etc. Judgment for plaintiff, and defendant brings error. Reversed, and rule in prohibition discharged.

T. C. Townsend and S. B. Avis, both of Charleston, for plaintiff in error.

P. C. Knox, of Washington, D. C, Price, Smith, Spilman & Clay, J. H. Gaines, and Conley & Johnson, all of Charleston, McCamlc & Clarke, of Wheeling, M. F. Matheny and Adam B. Littlepage, both of Charleston, Malcolm Goldsmith, of Pittsburgh, Pa., and L. Pearson Scott, of Philadelphia, Pa., for defendant in error.

WILLIAMS, J. Four indictments were found by a grand jury at the January term, 1915, of the intermediate court of Kanawha county, against defendant in error, two of which purport to charge him, as accessory before the fact, with two several felonious attempts to bribe two designated public officers, members, respectively, of the public service commission of West Virginia, and two with an unlawful attempt to bribe the same officers.

Following the indictments, defendant in error appeared and gave bond for his appearance in court on the 10th of March, 1915, to answer same. Thereafter, on the 24th of February, and without having answered or challenged the sufficiency of the indictments or the jurisdiction of said court, he presented his petition to the circuit court of Kanawha county, praying for a writ of prohibition against Hon. Henry K. Black, judge of said intermediate court. A rule was awarded thereon returnable on the 5th of March, 1915, summoning said judge to appear and show cause, if any he could, why he should not be prohibited from entertaining jurisdiction of the indictments. The judge appeared by counsel, demurred to the petition, and moved to quash the rule, and, after hearing arguments of counsel thereon, the circuit court overruled the motion and demurrer and awarded the writ as prayed for. The reversal of that final order is sought by this writ of error.

Counsel for plaintiff in error deny that prohibition is an available remedy in the premises. They insist that the question of jurisdiction should first have been raised in the intermediate court, and there decided adversely to defendant in error, before he had any right to apply for prohibition. Such is not the law of this state. Section 1, c. 110, series sec. 4518, Code 1913, reads in part as follows:

"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 jurisdic tion of the subject-matter in controversy, or having such jurisdiction, exceeds its legitimate powers."

Before the statute was amended in 1882, by the addition thereto of the language above quoted, Judge Green, a learned and able lawyer and jurist, expressed his view concerning the remedy by prohibition as follows:

"The true position, I understand, is that where on the face of the proceedings the inferior court not only has not jurisdiction and the parties cannot by consent or waiver give the court jurisdiction, it may be prohibited from proceeding, though the record does not show that the party praying for the petition, either by motion or suggestion, in any manner asked the inferior court to dismiss the proceedings." Swinburn v. Smith, 15 W. Va. 483, 499.

That rule was applied in the following cases: Judy v. Lashley, 50 W. Va. 628, 41 S. E. 197, 57 L. R. A. 413; Morley v. Godfrey, Mayor, 54 W. Va. 54, 46 S. E. 185; N. & W. R. Co. v. Pinnacle Coal Co., 44 W. Va. 575, 30 S. E. 196, 41 L. R. A. 414; City of Charleston v. Littlepage, J., 73 W. Va. 156, 80 S. E. 156, 51 L. R. A. (N. S.) 353. True, some of our decisions do hold that a challenge of jurisdiction in some manner, in the lower court, is a condition precedent to the right to apply to this court for the writ. See Board of Education v. Holt, 51 W. Va. 435, 41 S. E. 337, and Jennings v. Judge, 56 W. Va. 146, 49 S. E. 23. But it is not an inflexible and arbitrary rule of procedure, and, when this court has applied it, it has only done so as a matter of judicial courtesy to the court sought to be prohibited. City of Charleston v. Littlepage, J., supra, and cases cited in opinion, at pages 159 and 160, of 73 W. Va., 80 S. E. 156, 51 L. R. A. (N. S.) 353. Indeed, in view of the statute, giving the writ "as matter of right, " we do not see how such a rule can be justified in any case where it is proper to be issued at all. Prohibition is a remedy given as matter of right, and may be resorted to regardless of the existence of some other remedy. A defendant has the right to elect to pursue it, rather than some other remedy he may have.

That the intermediate court is entertaining jurisdiction of the indictments appears from its order requiring bond for the appearance of defendant in error to answer them on a day fixed. If it is without jurisdiction, it had no right to require him to appear. In determining the question of jurisdiction it is only necessary to ascertain whether the transactions averred in the indictments, or in any one of them, constitute an offense against the laws of West Virginia. If they do, then the intermediate court had jurisdiction to hear and determine all matters of law arising thereon, and to try the causes in the manner provided by law for the trial of criminal cases. With the technical defects, if any, in the indictments we are not concerned upon this appeal. Those are questions which the intermediate court should pass on in the first instance, if it has juris-diction in the premises. We are not reviewing the indictments as if upon writ of error to a judgment of conviction. The question we have to decide is: Do the indictments allege such matters as show that an offense has been committed, regarding the allegations as true? The indictments are very lengthy, each one occupying about 68 printed pages, and it is needless to incumber the reports with a full quotation of any one of them. Two of them purport to charge felonies, and two misdemeanors; and each one of them contains two counts. The matters averred in each are the same, except the name of the officer to whom the offer of money is alleged to have been made. Hence the substance of one will serve to determine the question of jurisdiction.

Stripped of technical verbiage and reduced to simpler form, one of the indictments, purporting to be for a felony, charges, in substance, as follows: That the public service commission of West Virginia had under investigation certain rates and charges for natural gas, established by the Manufacturers' Gas Company, a public service corporation, and seven other named subsidiary gas companies, to became effective on May 21, 1913, in order to ascertain whether said rates were excessive and discriminatory, or were just and reasonable; that on the 22d of April, 1914, after investigation and hearing, said public service commission lawfully made, entered, and promulgated a final order prescribing a schedule of rates and charges for each of said gas companies, which were to be effective on and after May 1, 1914, and declared it to be reasonable and just (the indictment incorporating in hæc verba the final order and schedules prescribed); that it was the official duty of the several members of the public service commission, four in number, whose names are mentioned in the indictment, to uphold, maintain, and proceed to enforce said final order; that the aforesaid gas companies thereafter brought a suit in equity, in the district court of the United States for the Northern District of West Virginia (Manufacturers' Light & Heat Co. v. Ott [D. C.] 215 Fed. 940), against the public service commission and its several members, praying to have the aforesaid order declared void, and the enforcement of it enjoined; that on the 29th of July the said United States District Court denied the prayer of the bill, and decreed that the rates fixed by the public service commission should be effective from the time fixed in its order; that complainants in the bill appealed from that decree to the Supreme Court of the United States, 242 U. S. —, 37 Sup. Ct. 213, 61 L. Ed.—); that pending said appeal defendant in error "did, on the 24th of October, 1914, in the city of Pittsburg, state of Pennsylvania, counsel, aid, abet, procure, hire, and command" Charles D. Elliott, who knew of the pendency of said suit and the matters in litigation therein, to offer as a bribe to Charles H. Bronson, whom said Elliott knew to be a member of the public service commission, $10,000, to induce and influence him, as a member of such public service commission, "to duly testify, depose, swear, make oath, and give evidence (in some way, shape, maimer, and form to the grand jurors unknown), " in said pending suit, to the following effect, viz.: That the investigation and hearing by the public service commission was inadequate and unfair, because it was made in subservience to the will of the Governor of the state of West Virginia, who summoned the members of said public service commission to his office, and "issued a flat ultimatum" that the several gas companies named "must not be permitted to increase their respective rates, and that, unless a decision to that effect was made within 24 hours" by them, their respective resignations should be on his desk at the end of that time, "in order that, and so that, and with the intent that" the aforesaid final order of the public service commission should be declared void, and its enforcement enjoined by the Supreme Court of the United States in the suit then pending. The second count of this indictment is identical with the first, except that it alleges the suit was pending in the United States District Court, instead of in the United States Supreme Court. If those transactions constitute an offense against the law of the state, the intermediate c...