Ingersoll v. Buchanan , 1 W. Va. 181 ( 1865 )

BrowN, J.

This is a supersedeas to the judgment of the circuit court of Ohio county, dismissing the rule awarded to the plaintiff in error against the defendants in error, to show cause why a writ of prohibition should not be awarded against them.

It appears that C. Buchanan being surveyor of roads in magisterial district No. 6, road district No. 2, in Marshall county, as such surveyor, brought suit in Ohio county before an alderman of the city of 'Wheeling, in said city, and as such ex officio a justice of the peace therein, by warrant in a. plea of debt for 12 dollars and 60 cents on account of road tax assessed against the plaintiff in error in Marshall county, who was a resident of said city, upon land owned by him in said road district in Marshall county, with interest thereon from September 1st, 1869. Upon this warrant the justice rendered judgment for 0. Buchanan, who is one of the defendants hi error: from which judgment the plaintiff in error appealed to the county court of Ohio county, which affirmed the judgment of the justice with costs of appeal, and awarded execution against the plaintiff in error.

The plaintiff in error then applied by petition to the judge of the circuit court of Ohio county, for a writ of prohibition: upon which application a rule was awarded him against the said 0. Buchanan and the sheriff" and justices of Ohio county, to show cause why the writ of prohibition 'should not be 'awarded. To this rule the parties appeared by their attorneys, and the matters arising thereon being-argued, it was considered by the court that the application for the petition be refused, and that the rule issued in pursuance thereof be dismissed, and that C. Buchanan recover against the petitioner his costs.

It is alleged for the plaintiff in error—

First, That the alderman, and ex officio a justice of the peace, in Ohio county, had no jurisdiction of the case.

Second, That the county court -of Ohio county had no jurisdiction to affirm the judgment of the justice of Ohio county.

To this it is objected for the defendants in error, that the warrant was for a personal, debt due from the plaintiff in error to the said C. Buchanan in his own right and not as surveyor of roads in magisterial district No. 6, l’oad district. No. 2, in Marshall county. But the objection is not sustained by the facts as they appear tipon the record.

It was further objected for the defendants in error, that the plaintiff in error by appealing from the judgment of the justice to the county court of Ohio county, thereby submitted himself to its jurisdiction: and having invoked its aid could not afterwards be heard to question its judgment in the premises. In reply to this objection it was alleged for the plaintiff in error, that if the county court of Ohio had not jurisdiction by'law, it could not be conferred by the consent of the plaintiff The correctness óf this is too well settled to require comment.

The question then to consider is, had the alderman as justice of the peace, an officer in Ohio county, jurisdiction to try the case ?

It is certain he had no general authority to hear and detei--mine such a ease; nor had the said surveyor any general authority to sue for road taxes so assessed; and the only special authox-ity is sought to be derived from the act of January 6th, 1854: Session Acts, 1854, page 105.

But that gives authority to the surveyor in Marshall county to sue for road tax in that county and in the name of tbat county, before the justices or courts of that county, but to none others.

Tho jurisdiction exercised by the justice in this case, was therefore an assumption and without authority of law. And tho jurisdiction exercised in the case by the county court of Ohio, in affirming the judgment of said justice, was equally an assumption and without authority of law.

The writ of prohibition is the conservative instrument in the hands of the superior courts by which to restrain the inferior tribunals to their lawful '’limits; and should have been awarded in this cause by the circuit court, instead of dismissing the rule as it did.-

■ The objection that the county court of Ohio had ceased to exist, and that the term of office of Samuel Irwin, sheriff, had expired, furnishes no excuse for the court’s refusal to award the writ of prohibition, since it appears that the execution op the judgment complained of had been issued, but not satisfied nor returned.

The said judgment of the circuit court of Ohio county ought, therefore, to be reversed: and the writ of prohibition awarded against the said Samuel Irwin, late.sheriff as aforesaid, and the said 0. Buchanan.

The other judges concurred in the opinion above.

JUDGMENT Reversed.