Cutlip v. Sheriff of Calhoun County , 3 W. Va. 588 ( 1869 )

Brown, President.

This is a writ of habeas corpus, 'by which the plaintiff seeks to be discharged from custody upon an indictment for felony found against her in the circuit court of Calhoun county, upon the sole ground that the proceedings of said court were void, because the court was held at Arnoldsburg, in said county.

Arnoldsburg was the county seat established by the vote of the people in pursuauce of the act of 1858, and so remained, unless it has been changed by the acts of January 22d, 1867, and of March 4th, 1869. The former, if valid, removed the county seat to Stump’s farm, in said county, and the latter repealed the former without more saying. And the important question comes practically up, where, under this state of things, is the lawful county seat of the county, or is the monstrous pretension true that the people have been left without any seat of justice in the count}-.

The constitution* article IV, section 36, is in these words: “No law shall embrace more than one object, which shall be expressed in its title.”

The-object of this provision was to guard against the enactment of laws by a sort of fraud upon tbe legislature by including in an act for one purpose, which was stated in its title, other and different objects, not so stated, and of which nothing was often known save by a few interested in the bill. And the evil of which enhanced when bills were merely read by their titles and put upon their passage and often rushed through on the last day of the session of the legislature.

Another important object was to-secure a fair and impartial consideration of each subject by making it to stand or fall on its merits, instead of having it carried against the wishes of the majority, often by having it tacked to some important measure it might be difficult or disastrous to defeat.

The history of legislation is rife with evils of this character sought to be remedied by this provision of the constitution.

The title of the act of January 22d, 1867, is “An act locating the county seat of Calhoun county,” and section 1st, in conformity with the object thus stated in the title, provides that the county seat of Calhoun county shall thereafter be at the farm of Simon P. Stump, on the Little Kanawha river, in said county.

Section 3d of said act provides, that the board of supervisors of said county are thereby authorized to sell any county property at Arnoldsburg, in said county. This is another and different object from that stated in the title to the act, and is, therefore, repugnant to the constitution, and void.

In the case of The State ex rel. Hixon vs. Lafayette County Court, 41 Mo., 39, it was held that an act which had two objects, and but one of them was stated in the title, was valid as to the object so stated in the title, and void as to the object not so stated. The constitution of Missouri, declaring that “No law enacted by the general assembly shall relate to more than one subject, and that shall be expressed in the title, but if any subject embraced in an act be not expressed in the title such act shall be void only as to so much thereof as is not so expressed.”

The constitution of Missouri is clearly directory only, to the legislature, not to include more than one subject in the act, but it is not directory merely in forbidding and avoiding any subject not embraced in the title. It differs, therefore, in that from the constitution of this State, which positively forbids and avoids the-act entire if it contains more than one subject, and also if that object be not stated in the title.

I think, therefore, the act of January 22d, 1867, was unconstitutional and void, and consequently the seat of justice for Calhoun remains at Arnoldsburg, where it was originally lawfully established by the vote of the people. And the courts held there are valid and not void, as supposed in the plaintiff’s petition for the writ of habeas corpus. It appearing that the plaintiff'is detained for no other cause than upon the indictment aforesaid, is not, therefore, detained without lawful authority. Therefore, it is considered that the plaintiff' be remanded to the custody of the said sheriff', and that the defendant recover against the plaintiff his costs about this defence in this behalf expended.

Berkshire, J., concurred with the president.