State Ex Rel. Sahley v. Thompson

151 S.E.2d 870, 151 W. Va. 336

• Court: West Virginia Supreme Court
• Decided: December 20, 1966
• Docket: 12599, 12600
• Status: Published

Opinions

BbowNING, Judge :

In these two original proceedings petitioner, Albert Sahley, seeks to prohibit respondents, the Judge of the Intermediate Court of Kanawha County and the Prosecuting Attorney for the City of South Charleston, from further proceeding against him upon two separate warrants charging him, respectively, with the offenses of “disorderly conduct” and “resisting arrest”. The “disorderly conduct” warrant charges petitioner with a violation of the South Charleston City Code in that “. . . his conduct was (a) contrary to law, (b) violative of the public peace and good order, (c) turbulent, (d) riotous, (e) indecent, contrary to the laws and the ordinances of the said City of South Charleston relating to such offenses, and against the peace and dignity of the State. . . ,” and was issued by “K. L. Jarrett, Lieutenant of Police, City of South Charleston Police Department”. The “resisting arrest” warrant arose out of the same incident and was also issued by Jarrett in his capacity as lieutenant of police.

The warrants were issued on May 15, 1966, and on May 23, 1966, petitioner was tried thereon in the Municipal Court of South Charleston, found guilty of both charges, fined a total of seventy-five dollars and sentenced to a total of thirty days in the Kanawha County jail. Prior to trial in the municipal court, petitioner moved to dismiss the “disorderly conduct” warrant on the ground that it failed to fully and fairly inform petitioner of the charge against him and also on the ground that petitioner had been denied his constitutional right to a speedy trial, which motions were overruled. Petitioner appealed such convictions to the Intermediate Court of Kanawha County where he appeared and moved to quash both warrants: the “resisting arrest” warrant on the grounds that a lieutenant of police has no authority, under the provisions of Code, 62-1-10, as amended, to issue such warrant and that petitioner was denied his right to a speedy trial on the charge; and the “disorderly conduct” warrant, substantially, on the grounds that: the ordinance on which it is based is unconstitutionally vague, arbitrary and capricious; the warrant does not advise petitioner of the offense with which he is charged; and the warrant is void because issued by a lieutenant of police in contravention of the constitution and statutes of this state. Both motions were overruled and petitioner, alleging the above, applied to this Court for writs of prohibition which issued rules to show cause why the writs should not be granted as prayed for, returnable October 4, 1966.

In response to the rules, defendants appeared and answered, admitting the factual allegations of the petition, but averring the validity of the warrants, and demurred on the grounds that: the respondent, Martin C. Bowles, is not a proper party to the proceedings; the matters raised herein are not proper to be considered on prohibition but should be raised in due course on writ of error; the grounds asserted, except the validity of the “disorderly conduct” ordinance and the sufficiency of the warrant to adequately inform petitioner of the charge against him, were waived by the failure of petitioner to raise them in the municipal court; and the issuance of a warrant by a lieutenant of police is constitutional and valid.

Article 7, Section 7.6 of the Charter of the City of South Charleston provides as follows:

“The mayor, city clerk, clerk of the municipal court, chief of police, or in the absence of the chief of police, the captains of police and lieutenants of police shall each have authority to issue warrants for all offenses which are in violation of the ordinances of the City of South Charleston.”

It is contended that this ordinance constitutes an unconstitutional delegation of judicial authority and is also in conflict with the general law of this state in that Chapter 62, Article 1, Sections 1, 3, and 10, as amended, ■ are conclusive as to who may issue warrants in this state. Section 1 provides that a complaint, setting forth the essential facts shall be made on oath before a justice of the peace and Section 2 provides that, if it appears from the complaint that there is probable cause to believe an offense has been committed and that the defendant has committed it, a warrant shall issue. Section 3 then provides: ‘ ‘ The warrant shall be signed by the justice ...” and Section 10, entitled “Concurrent Powers” provides as follows: “A judge of a court having jurisdiction to try criminal offenses shall have the same power to issue warrants as conferred upon a justice of the peace by this article. A mayor or judge of a police court acting in the capacity of a justice of the peace shall have all the powers and duties conferred upon a justice by this article.” It is also contended by petitioner that if the ordinance be held valid, then the warrants are nevertheless void because the phrase “in the absence of the chief of police” means more than the mere absence of the chief from the station house. In this connection, evidence was taken before the intermediate court which shows that while Jarrett was the ranking officer on duty at the time of issuance of the warrants the chief was at his residence approximately one mile from the station house.

The ordinance defining “disorderly conduct” is as follows:

“Any person whose conduct or behavior shall he such as to he contrary to law or violative of the public peace or good order, or turbulent, riotous, or indecent shall be guilty of a misdemeanor. ’ ’

The warrant, heretofore quoted, is couched in identical language with the ordinance. The complaints, warrants, and transcripts of the proceedings in the municipal court are attached as exhibits to the petition, and, by stipulation, the evidence adduced before the municipal court, on trial of the charges, and the evidence taken before the intermediate court, upon the question of the chief’s absence, are made a part of the record herein.

It is obvious that Chapter 62, Article 1, Section 10 of the Code, as amended, is general legislation prescribing preliminary criminal procedure throughout the State of West Virginia. It is equally obvious that Article 7, Section 7.6 of the charter of the City of South Charleston is, in a sense, special legislation, applying only to that city. Code, 8A-2-13, 14, as amended. It is the view of this Court that there is no conflict between those provisions. However, even if there were such conflict, the special act would prevail over the general. 17 M. J., Statutes, §§ 100, 101, and cases cited therein.

The controlling question presented upon these proceedings is whether the provision of Article 7, Section 7.6 of the charter of the City of South Charleston, insofar as it empowers a lieutenant of police to issue a warrant under certain exceptional circumstances, is invalid as being violative of Article V, Section 1 of the constitution of this state, which reads: ‘ ‘ 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 he eligible to the legislature.”

This Court has long recognized that it is not possible that division of power among the three branches of government be so precise and exact that there is no overlapping whatever. It is interesting to observe that the earliest case interpreting the legislative powers under Article VI, Section 39, Wooddall v. Darst, 71 W. Va. 350, 77 S.E. 264, 80 S. E. 367, held that the powers therein granted to the legislature were “conclusive and not subject to judicial review”. However, this Court receded from that adamant position in Brozka v. Brooke County Court, 111 W. Va. 191, 160 S. E. 914, and held'that an act of the legislature would be held by this Court to violate the applicable constitutional provision if its disregard of such was ‘ ‘ clear and palpable ’ ’. This Court no longer hesitates to declare invalid an act of the legislature which it finds in plain contravention of a provision of the constitution of this state as is shown by the recent decision of Robertson, et al. v. Hatcher, et al., 148 W. Va. 239, 135 S. E. 2d 675. However, no one has ever gainsaid, nor can he, what was stated in the opinion of Wheeling Bridge, etc. v. Paull, 39 W. Va. 142, 19 S. E. 551, in discussing the separation of power provision of the constitution: “Were it practicable to keep these three departments wholly distinct, the increase of the necessary offices and officers would be so great, and the expense thereof so burdensome, as to render the cost of the administration of the government unbearable, especially to the citizen tax-payer who must contribute and yet not share in the distribution of the taxes. So that, while we find that the constitution, as much as possible keeps the heads of the three departments comparatively distinct and independent of each other, yet as we move down the scale these several powers become more complicated and interwoven with each other, until we find the common council of every village exercising legislative, executive and judicial functions, indiscriminately, by authority of the same constitution which declares that these functions shall be ¡kept distinct.” (Italics supplied.)

It is true that the issuance of an arrest warrant is, in essence, a judicial act and, of course, the chief, captains and lieutenants of police of the City of South Charleston are not members of the judicial branch of the government of this state. Neither is the city cleric nor the clerk of the municipal court. But, as pointed out in the Wheeling Bridge case, at the lower levels of government there must necessarily be an overlapping of functions in responsible officials lest the cost of government become too burdensome to bear. And, as stated in Ocampo v. U. S., 234 U. S. 91, 58 L. ed. 1231, 34 S. Ct. 712, a case in which the function of finding probable cause for the issuance of a warrant was delegated to the prosecuting attorney: “We think, however, that it is erroneous to regard this function, as performed by committing magistrates generally ... as being judicial in the proper sense. There is no definite adjudication. ... In short, the function of determining that probable cause exists for the arrest of a person accused is only quasi judicial, and not such that, because of its nature, it must necessarily be confided to a strictly judicial officer or tribunal.” and, since no proscription was elsewhere found, “. . . it is, in our opinion, as permissible for the local legislature to confide this duty to a prosecuting officer as to intrust it to a justice of the peace.” More closely in point is the case of State v. Furmage, 250 N. C. 616, 109 S. E. 2d 563. North Carolina, by general law, provided for the issuance of warrants by the Chief Justice and associate justices of the Supreme Court, the judges of the superior court, judges of criminal courts, presiding officers of inferior courts, justices of the peace, mayors of cities, or other chief officers of incorporated towns. A local law established six district recorders’ courts in Robeson County and provided that “warrants may be issued by the recorders of said courts or by any justice of the peace of Robeson County. ...” This provision was subsequently amended to empower the prosecuting attorneys of such courts to issue warrants. A warrant was issued by the solicitor of a recorder’s court, and a motion was made to quash the same as in violation of North Carolina’s constitutional provision as to separation of powers. The lower court sustained the motion and on appeal, the Supreme Court reversed the decision stating: “While we do not presently undertake to mark out the precise meaning of . . . [the constitutional provision] we have no difficulty in concluding that the issuance of a warrant, whether considered a judicial act, a quasi-judicial act, a judicial function, or a ministerial act, does not require or involve the exercise of supreme judicial power within the meaning of that term as used in . . . [the constitution].” To similar effect are: Kreulhaus v. City of Birmingham, 164 Ala. 623, 51 So. 297; Gladden v. State, 36 Ala. App. 197, 54 So. 2d 607; State v. Van Brocklin, 194 Wis. 441, 217 N. W. 277; 22 C. J. S., Criminal Law, § 318; 4 Am. Jur., Arrest, § 9; 10 Am. Jur., Clerks of Court, § 16.

We are of opinion that Article 7, Section 7.6 of the charter of the City of South Charleston, in the absence of any specific statutory proscription, is not in contravention of Article Y, Section 1, of the constitution of this state and that the warrants in the instant cases, issued by a lieutenant of police, were valid. We are also of opinion that the phrase “in the absence of the chief of police”, as used in the charter, does not require such absence to be beyond all possibility of communication but it is sufficient if the chief is away from his primary place of duty during normal off-duty hours.

The writs of prohibition as prayed for herein will be denied.

Writs denied.