Harbert v. County Court , 129 W. Va. 54 ( 1946 )

I agree that Chapter 163 of Acts of 1945 cannot effect the salary of the Judge of the Criminal Court of Harrison County for the term during which that Act became effective for the reasons stated in the majority opinion. Beyond that I find no fault with the statements of principle in that opinion, but disagree with their application. In my opinion the Court is permitting rules of construction to mislead it in applying plain language where no rules of construction are needed. They should be resorted to only where the intention of the Legislature can be arrived at in no other way, but not where the language of the enactment under consideration is plain.Kelley Moyers v. Bowman, 68 W. Va. 49, 52, Pt. 1 Syl., 69 S.E. 456; State v. Patachas, 96 W. Va. 203, 207, Pt. 3 Syl.,122 S.E. 545; Gissy v. Board of Education, 105 W. Va. 429, 433,143 S.E. 111.

Immediately prior to the enactment of Chapter 20, Acts of the Extraordinary Session of 1932, the salary of the Criminal Judge of Harrison County was $5,000.00 per annum.

Section 21 of Chapter 82 of the Acts of 1937 reads as follows:

"The salary of each and every judge of a criminal, intermediate, domestic relations, or other court of record, inferior to circuit courts, is restored to the sum and amount received as salary by each of such judges prior to the enactment of chapter twenty, acts of the Legislature of West Virginia, extraordinary session, one thousand nine hundred thirty-two." (Italics supplied.)

I believe that when the provision quoted spoke of "each and every judge" of the named courts, the words "each and every" referred to them singly and collectively and that the Legislature in using them meant exactly what it said.

The rule referred to in the majority opinion with reference to a subsequent general statute not repealing by implication the terms of a special act, and for that reason the salary of the Criminal Judge of Harrison County fixed at $4,000.00 per annum by Chapter 27 of the Acts of the Extraordinary Session of 1932, which followed Chapter 20 just referred to, remains fixed at $4,000.00, in my judgment has no application to the case at bar. In the first place, the rule spoken of is not a hard and fast rule. In addition, even though it were accepted as a settled rule of construction, under the West Virginia cases cited in the majority opinion it has no effect if the words of the subsequent general act "manifest a plain intention to repeal". As far as the Criminal Court of Harrison County is concerned, surely there can be no doubt that the subject of the enactment of Chapter 27 of the Acts of the Extraordinary Session of 1932 is embraced within Chapter 82 of the Acts of 1937. That being so, if the subsequent act is repugnant to the former act, general or special, the later act undoubtedly becomes effective, call it repeal, supersedence, or what you will. United States v. Claflin, 97 U.S. 546, 24 L. Ed. 1082;Howard v. Hulbert, 63 Kan. 793, 66 P. 1041, 88 Am. St. Rep. 267; The People v. Town of Thornton, 186 Ill. 162, 57 N.E. 841;The People v. McCann, 247 Ill. 130, 149, 93 N.E. 100; Schott v.Auto Ins. Underwriters, 326 Mo. 92, 31 S.W.2d 7; Huston v.Scott, 20 Okla. 142, 94 P. 512; State ex rel. Simpson v.Chicago, M. St. P. Ry. Co., 118 Minn. 380, 383, 137 N.W. 2. The repugnancy is demonstrated by the fact that the Legislature made the Act of 1937 apply without exception to each and every judge of the named courts. Surely no Judge of a Criminal, Intermediate, Domestic Relations, or other court of record inferior to Circuit Courts, in the State of West Virginia would have the temerity to assert in even a criminal case that that language does not apply to him.

The majority opinion states that the circumstances arising after the Act of 1937 are not controlling concerning the construction of that act's meaning and with this I heartily agree. It happens that the same person occupies that bench at present as in 1937. That being so I do not comprehend why the present incumbent should be penalized for not asserting his right to a five thousand dollar a year salary, perhaps because he did not realize at that time that the previous salary had been restored to the office he occupied. That means that he took no active part in supporting the measure that restored the salary of his office and benefited him one thousand dollars per annum. Since Judge Harbert was then on the bench and had recently been a member of the Legislature, it strikes me that his lack of knowledge, or assertiveness, could as well be due to a sense of propriety as to a misinterpretation. The present proceeding brought by him is based upon questions of law arising after the Legislature had spoken twice.

For the foregoing reasons, although agreeing with the discussion of the principles of law contained in the majority opinion but believing that the circumstances before the Court in this case do not warrant their full application, I dissent.