State ex rel. Muldrew v. Boles , 151 W. Va. 1033 ( 1967 )

Haymond, Judge,

concurring:

I concur in the conclusion reached by the majority of this Court to discharge the petitioner Muldrew and, in addition to the reasons stated by the majority, I would release him from his penitentiary confinement for the controlling reason and on the obvious ground that the judge of the Circuit Court of Ohio County was without jurisdiction to act as special judge of the Intermediate Court of Ohio County and to enter any judgment in the trial of the prisoner in that court upon the indictment returned against him. The question of the jurisdiction of the circuit judge to act as judge of the Intermediate Court was raised in this proceeding and in my judgment it should have been considered and resolved by a holding of this Court that the circuit judge lacked such jurisdiction and that the orders entered by him were void.

The judge of the circuit court, in the trial of the petitioner upon the indictment, was acting in the capacity of a special judge and not as the regular judge of the Intermediate Court.

The selection and the jurisdiction of a special judge are governed and conferred by the Constitution and the statutes of this State. First National Bank of Cumberland v. Parsons, 45 W. Va. 688, 32 S. E. 271. In the opinion in that case Judge Brannon said “The special judge is a judge, under the Constitution and statute, * * * . ” Article VIII, Section 15, of the Constitution of this State provides that ‘ ‘ The legislature shall provide by law for holding regular and special terms of the circuit courts, where from any cause the judge shall fail to attend, or, if in attendance, cannot properly preside.” Section 10, Article 2, Chapter 51, Code, 1931, relating to judges of courts of record, provides, in part, that “When, for any cause, the judge of a circuit court, criminal court, or other court of record of limited jurisdiction, shall fail to attend and hold the same, * * * , or if he is in attendance and cannot properly preside at the trial of any cause therein, or if there is a vacancy in such court by reason of death or resignation,” a special judge may be elected in the manner provided by the section or such judge may be selected by agreement of the parties to a case, or their attorneys, to try and determine such case.

The circuit judge though necessarily acting as a special judge was not selected by election or agreement but undertook to try and determine the criminal prosecution as a regular judge of the circuit court of Ohio County. In consequence he acquired no authority or jurisdiction to act as the special judge of the Intermediate Court from or by virtue of the foregoing statute. In every case in which this Court has considered the selection of a special judge the person selected has been an attorney and not a judge of any court. Even when the statute governing the selection of a special judge has been invoked this Court has required substantial compliance to sustain such selection either by election or agreement of the parties to a particular case. Though it has been said that the statute is remedial, State v. Newman, 49 W. Va. 724, 39 S. E. 655, and should be liberally construed, Hyman v. City of Huntington, 119 W. Va. 44, 191 S. E. 881, it has been held by this Court to he mandatory. Brinkley v. Brinkley, 147 W. Va. 557, 129 S. E. 2d 436; Brown v. Miller, 103 W. Va. 282, 137 S. E. 227; State v. Cross, 44 W. Va. 315, 29 S. E. 527. In the Brown case the opinion contains this language: “In State v. Cross, 44 W. Va. 323, Judge BRANNON deals with this subject in trenchant words: ‘Observe that these directions are not merely directory, but mandatory, because the statute is prohibitory. It prohibits an election without a previous order by the regular judge. He is to say whether it is necessary. He, as a public sworn official, is to say whether it is proper to charge the public treasury with the costs of a special judge. So the law is writ, whatever be the reason. ’ This pronouncement has been adhered to in subsequent decisions in the application of this statute.” In Ropp v. Nadenbousch, 100 W. Va. 599, 131 S. E. 353, this Court held that under the statute a special judge should not be elected to preside at the trial of a case until the case was pending in court. In State ex rel. The First National Bank of Fairmont v. Amos, 100 W. Va. 555, 131 S. E. 264, this Court held invalid the election of a special judge because the required notice of the time, place and cause for holding the election was not issued by the clerk and served as required by the statute. In the more recent case of State ex rel. Fahey v. Brennan, 139 W. Va. 122, 79 S.E. 2d 109, this Court held that a retired judge of this State, before he may serve in the capacity of a special judge in any proceeding, must be selected in accordance with, the provisions of Section 10, Article 2, Chapter 51, Code, 1931.

The circuit court of Ohio County had at least potential jurisdiction of the subject matter and the defendant in the criminal case and if the case had been instituted in or transferred to that court for trial, the regular judge of that court could have tried and determined the case for he was the judge of that court. Unless validly selected as special judge, which was not done, he was in no sense the judge of the Intermediate Court. Even though the Circuit Court and the Intermediate Court may have concurrent jurisdiction in certain matters they are, of course, separate and distinct courts. This is clearly pointed out in Harbert v. The County Court of Harrison County, 129 W. Va. 54, 39 S. E. 2d 177. The circuit court is a constitutional court and the salary of a judge of a circuit court as a State officer is paid by the State and may be changed during his term of office; the Intermediate Court is a court created by statute and can be abolished by the Legislature, the judge of that court is a county officer whose salary is paid by the county, though fixed by the Legislature, and such salary can not be changed during his term of office. So it is clear that the judge of the circuit court in presiding at the trial of the criminal case was acting as the judge of another and different court without having been authorized to act as a special judge of that court by any provision of the Constitution or of any statute of this State. Except the provisions of Article VIII, Section 11, of the Constitution and of Section 9, Article 2, Chapter 51, Code, 1931, which permit and authorize a judge of one circuit court to hold another circuit court in a different circuit, there are no constitutional or statutory provisions which permit or authorize a judge of a circuit court to hold another or different court in this State. The circuit court of each circuit is a separate and distinct court from the circuit court of any other circuit. First National Bank of Cumberland v. Parsons, 45 W. Va. 688, 32 S. E. 271. The action of the framers of the Constitution of this State in conferring this power only upon any circuit court to hold any other circuit court indicates that they intended to limit such power to circuit courts to hold court for each other and to exclude such power from all other courts and not to empower a circuit court to hold court for any court other than a circuit court. If they had intended to authorize a circuit court to hold court for any or all other kinds of courts they would so have provided by clear and unambiguous language which they purposely have not done. See State v. Cross, 44 W. Va. 315, 29 S. E. 527. It is therefore manifest, at least to me, that the judge of the circuit court of Ohio County was without jurisdiction to act as judge of the Intermediate Court and in consequence the orders and judgment rendered by him are void in their entirety.

A judgment which is wholly void, or is void in part, is subject to collateral attack and enforcement of such judgment will be prevented in a habeas corpus proceeding. State ex rel. Titus v. Hayes, 150 W. Va. 151, 144 S. E. 2d 502; State ex rel. Widmyer v. Boles, 150 W. Va. 109, 144 S. E. 2d 322; State ex rel. Bullett v. Boles, 149 W. Va. 700, 143 S.E. 2d 133; State ex rel. McClure v. Boles, 149 W. Va. 599, 142 S.E. 2d 773; State ex rel. Robison v. Boles, 149 W. Va. 516, 142 S. E. 2d 55; State ex rel. Beckett v. Boles, 149 W. Va. 112, 138 S. E. 2d 851, and the many cases cited in the opinion in the Beckett case.

I would order the discharge of the petitioner on the ground, in addition to the grounds set forth in the majority opinion, that the judgment of the Intermediate Court, rendered by the judge of the Circuit Court of Ohio County, sentencing the petitioner to life imprisonment in the penitentiary of this State, is void in its entirety because of the lack of jurisdiction of such judge to impose such sentence.

I am authorized to state that Judge Calhoun joins in the views expressed in this opinion.