State Ex Rel. Carson v. Wood

Calhoun, Judge,

dissenting:

Respectfully, I dissent from the Court’s decision embodied in the majority opinion in these two combined cases.

I am not endeavoring to be dramatic when I state that the Court in these cases, with all their grave implications, should be mindful and heedful of the wise admonition contained in Section 20, Article III, of the Constitution of West Virginia which contains the following language: “Free government and the blessings of liberty can be preserved to any people only by a firm adherence to justice, * * * and by a frequent recurrence to fundamental principles.” In my opinion, the Court has strayed from fundamental legal principles in relation to the jurisdiction of the trial court, the jurisdiction of this Court and the function and scope of prohibition as a judicial remedy.

For reasons stated hereafter in this dissenting opinion, I believe that the indictments in question are valid on their face; that the Intermediate Court of Kanawha County has jurisdiction to proceed under the indictments; that the question whether the petitioner is “an executive and ministerial officer” is a nonjurisdictional question; and that this Court lacks jurisdiction in these prohibition proceedings to determine nonjurisdictional questions which have not been passed upon by the trial court.

*414 With limited exceptions, this Court has only appellate jurisdiction. Its primary function is to review the actions or judgments of trial courts of record. Even in the exercise of its appellate jurisdiction, this Court will not decide nonjurisdictional questions which have not been acted upon and decided by the trial court. Work v. Rogerson, 149 W.Va. 493 , pt. 11 syl., 142 S.E.2d 188 . The reason is, in my view, that this Court, in the exercise of its appellate functions, lacks jurisdiction to “review” nonjurisdictional questions which have not been acted upon and decided by the trial court. Appellate jurisdiction means exactly what the term implies.

This Court’s original jurisdiction is conferred by Section 3 of Article VIII of'the Constitution by the following language: “It shall have original jurisdiction in cases of habeas corpus, mandamus, and prohibition.” Code, 1931, 53-1-1, provides: “The writ of prohibition shall lie * * * when the inferior court has not jurisdiction of the subject matter in controversy, or, having such jurisdiction, exceeds its legitimate powers.” The Constitution confers jurisdiction in prohibition as that remedy existed at common law. State ex rel. City of Huntington v. Lombardo, 149 W.Va. 671, 677 , 143 S.E.2d 535, 540 .

Jurisdiction cannot -be conferred by an indictment which is null and void because of its failure to allege criminal offense, State ex rel. McCormick v. Hall, 150 W.Va. 385 , pt. 2 syl., 146 S.E.2d 520 ; nor by an indictment which is void because it is based on an unconstitutional statute. State ex rel. Heck’s, Inc. v. Gates, 149 W.Va. 421, 425-26 , 141 S.E.2d 369, 374 . Conversely, an indictment which is valid on its face confers jurisdiction upon the trial court in which the indictment is pending. Prohibition “does not lie to correct errors or to usurp the functions of a writ of error or certiorari, or of the remedy by appeal.” State ex rel. Cecil v. Knapp, 143 W.Va. 896, 912 , 105 S.E.2d 569, 579 .

In these cases, the Court does not hold that the statute upon which the indictments are based is unconstitutional. The indictments are valid on their face and charge offenses in accordance with the language of the statute. They charge that Luther Carson, at the time of the alleged offenses, “was *415 then and there an executive and ministerial officer of the State of West Virginia.” Thereafter it is asserted by videlicet that he held the office of Director of Office Services of the State Road Commission of West Virginia.

Though each indictment expressly alleges that Luther Carson “was then and there an executive and ministerial officer of the State of West Virginia” in full compliance with the language of the statute, the Court, nevertheless, holds that the distinguished judge of the trial court cannot proceed in relation to the two indictments. It must be conceded that the valid indictments conferred jurisdiction on the trial court. It cannot be said, with any degree of reason, that the trial court has exceeded its legitimate powers because this Court has prohibited the trial court from taking any action in relation to the valid indictments. I cannot comprehend how this Court can hold that the trial court has exceeded its legitimate powers when this Court prohibits the trial court from exercising any powers whatsoever pursuant to the indictments. We have stated so many times that jurisdiction in a court includes jurisdiction to err and to decide incorrectly as well as jurisdiction to rule and to decide correctly.

As I shall undertake to state hereafter in this dissenting opinion, the Court has based its decision in these cases upon an alleged failure of proof to sustain the allegations of valid indictments. The Court in this respect, in a wholly unwarranted manner, has invaded the domain of the trial court; usurped functions and jurisdiction which rest solely with that court; anticipated that the trial court may err if permitted to proceed; and has undertaken to decide in these prohibition proceedings questions which this Court properly may decide only in the exercise of its appellate jurisdiction after the trial court has acted upon and decided such questions, correctly or incorrectly, in the exercise of its clear jurisdiction.

In deciding these cases on jurisdictional grounds, the Court has erred in undertaking to decide jurisdictional questions upon alleged facts which are of an extraneous nature, contraiy to the allegations of the indictments.

*416 “Prohibition will not lie against an inferior court or a judge thereof to deprive it or him of the right to pass upon the extrinsic facts determinative of jurisdiction.” Downs v. Lazzelle, 102 W.Va. 663 , pt. 1 syl., 136 S.E. 195 .

“A court of general jurisdiction, having jurisdiction of the subject matter and (on the face of the record) jurisdiction of the person will not by writ of prohibition be deprived of its right to pass upon the extrinsic facts determining the jurisdiction of the person.” Cunard Steamship Company, Ltd. v. Hudson, 93 W.Va. 209 , syl., 116 S.E. 511 .

“If the question of a court’s jurisdiction depends upon issues of fact, it has power and jurisdiction to decide them, even though the evidence relied upon to prove the jurisdictional facts is wholly uncontra-dicted and absolutely conclusive, and it cannot be deprived of its right to do so by prohibition or any other collateral proceeding.” State ex rel. Keeney v. Bland, 89 W.Va. 600 , pt. 5 syl., 109 S.E. 716 .

“In determining whether an inferior court has jurisdiction to entertain an indictment, it is only necessary to determine whether the transactions and circumstances therein alleged show that an offense, punishable under the law, has been committed. The technical sufficiency of the indictment will not be inquired into, as if upon a demurrer or motion to quash, to determine jurisdiction.” Weil v. Black, 76 W.Va. 685 , pt. 2 syl., 86 S.E. 666 .

For a general discussion of principles stated in the quotations appearing immediately above, see McConiha v. Guthrie, 21 W.Va. 134 . My views in relation to the lack of jurisdiction of this Court by prohibition to interfere with a trial court in its efforts to proceed, correctly or incorrectly, in the exercise of its jurisdiction have been stated in dissenting opinions in State ex rel. Turner v. McClure, 153 W.Va. 855 , 173 S.E.2d 167 , and State ex rel. Valley Distributors, Inc. v. Oakley, 153 W.Va. 94 , 168 S.E.2d 532 .

The instant cases are predicated on the proposition that Luther Carson was not, in fact, an executive or ministerial officer of the state at the times alleged in the indictments. The indictments allege that, in the position he occupied in *417 state government, he was “an executive and ministeral officer of the State of West Virginia.” In the face of these allegations, this Court cannot take judicial notice that Luther Carson was neither an executive officer nor a ministerial officer of the state. The question whether the allegations of the indictments in this respect can be supported by proof is a matter of trial court jurisdiction. In this collateral attack by prohibition, we must accept the allegations of the indictments at face value.

Whether Luther Carson was or was not an executive or ministerial officer is a matter of defense in the trial court, just as would be a defense of alibi, of mistaken identity or of insanity. A determination of any of such defenses in a manner favorable to the accused would prevent his conviction of the offenses charged. It might be argued that an advance determination by this Court of any of such defenses in accordance with the contention of the accused would have the advantage of avoiding an abortive trial. Whether that is a consummation devoutly to be wished or not, the fact remains that the validity or the invalidity of any such a defense is dependent upon proof of facts dehors the indictment. Not only is this Court lacking in facilities for making a determination of such factual issues, it is also completely lacking in jurisdiction to do so, unless in the exercise of its appellate jurisdiction.

For reasons I have undertaken to state, I would not, in these prohibition proceedings, reach the factual decision the Court has made. In the absence of a proper development of that factual issue in the trial court, I will not undertake to state, in these prohibition proceedings, what the correct answer should be. I will proceed, nevertheless, in an effort to state the basis of my opinion that there are no invariable legal guidelines by which that factual determination can be easily and readily made by any court. In this connection, I note that if the Court is correct in stating in the fourth point of the syllabus that the important position occupied by the accused in state government was not an executive or ministerial office because it was not created “by the legislature”, a simple proposition has been belabored and the Court has wasted much effort and language in detailing the indicia of an “office.”

*418 The portion of Code, 1931, 61-5-5, which is involved in these cases is stated disjunctively in broad, embracive language as follows: “Any executive, legislative, judicial or ministerial officer, or member of the legislature, * * The Reviser’s Note following this statute in the official Code, 1931, states that the present statute is a composite of Sections 5, 5a(3) and 5a(4) of Code, 1923. Section 5 dealt with receiving bribes by any “executive, legislative, or judicial officer.” Section 5a(3) dealt with demanding or receiving bribes by “any executive or judicial officer of this state.” Section 5a(4) dealt with receiving or demanding a bribe by any “member of the legislature.”

We must assume that the legislature, in adopting the 1931 official Code, acted deliberately and with a purpose in adding any “ministerial officer” to the category of persons in state government who may be guilty of the criminal offense by demanding, receiving or accepting a bribe. Bearing in mind the disjunctive character in which the present statutory language is stated, it is difficult or impossible to conceive of any state officer who would not be embraced by the following language: “Any executive, legislative, judicial * * * officer, or member of the legislature.” Why did the legislature add the words, “or ministerial officer”? We are required to assume that the legislature intended to add something to the em-bracive category which otherwise covered any executive, legislative or judicial officer or member of the legislature. We are required to assume that the legislature acted deliberately and for a purpose in adding a new category of positions characterized as any “ministerial officer.” The words, “ministerial officer,” were obviously designed to- embrace some categories of positions in state government in addition to any “executive, legislative, judicial * * * officer, or member of the legislature.”

We must bear in mind that we are not here concerned with what is meant by “officer,” “state officer,” “state official” or state “executive officer.” We are concerned with the legislative intent in including the words, “ministerial officer,” in relation to this particular statute, not in some other connection. We are not here concerned with the meaning of “officer” *419 or “public officer” under a statute dealing with removal from office as in Dunbar v. Brazoria County, Tex. Civ. App., 224 S.W.2d 738 . We are not concerned with the question whether the accused is an officer or an employee in relation to workmen’s compensation statutes as in Hutton v. State, 235 Iowa 52 , 16 N.W.2d 18 and Anderson v. Industrial Commission, 74 Ohio App. 77 , 57 N.E.2d 620 . We are not concerned with the question of what is a public office in relation to a statute which prohibits the increase or decrease of a salary during a term of office as in State ex rel. Key v. Bond, 94 W.Va. 255 , 118 S.E. 276 , from which the majority opinion quotes at great length. We are not concerned with a statutory or constitutional provision prohibiting the holding of incompatible offices as in Martin v. Smith, 239 Wis. 314 , 1 N.W.2d 163 . We are concerned in these cases with the meaning of a “ministerial officer” as used in the specific statute which deals with the precise subject of demanding, receiving or accepting bribes, not in every conceivable area of life, but specifically in the performance of the affairs of government.

The majority opinion requires the conclusion that, if a bribe were demanded, received or accepted by the state road commissioner, that would constitute a crime under the statute; but that if the state road commissioner, in order to distribute the burdens of his office, or because of a protracted illness or in order to take a vacation in Florida, or for some other reason, should delegate the performance of the duties and responsibilities of his office to an assistant in his department, for a matter of weeks or a month, the assistant could not be guilty of a crime under the statute if he were to demand, receive or accept a bribe in such circumstances as to constitute a crime if the same acts were performed personally by the state road commissioner. The assistant could demand, receive or accept a bribe with complete impunity. See United States v. Hartwell, 73 U.S. (6 Wall.) 385 . So far as the public is concerned, the evil is the same whether the forbidden conduct be performed by the state road commissioner personally or by some other person whom he has designated to perform a portion of his official duties.

*420 The factual question presented for decision in this case cannot be determined on the basis of the title or other designation given to the position held by Luther Carson in the performance of important functions in state government. The question must be determined upon a basis of proof of the nature of the position held and the governmental functions performed by him. “It is no defense to an indictment for attempted bribery of a public officer, that he was not a de jure officer; his official character can not be thus collaterally assailed; it is sufficient that he was a de facto officer.” Weil v. Black, 76 W.Va. 685 , pt. 10 syl., 86 S.E. 666 .

These cases clearly present a question of first impression for this Court. There is a paucity of appellate court decisions defining “ministerial officer.” So far as I have been able to determine, our attention has not been directed to any reported court decision from any jurisdiction which defines “ministerial officer” as contradistinguished by statute from any “executive, legislative, judicial * * * officer, or member of the legislature.”

The principles by which we should be guided in these cases are stated in Hartigan v. Board of Regents of West Virginia University, 49 W.Va. 14, 20 , 38 S.E. 698, 701 , as follows:

“* * * What is a public office? The word is used in so many senses that it is impossible to give a precise definition covering all cases. It depends, not on what we call it, or even on what a statute may incidentally call it, but upon the powers wielded, the functions performed, and other circumstances manifesting the character of the position. State v. Kennon, 7 Ohio St. 546 .”

In Haynes v. Commonwealth, 104 Va. 854 , 52 S.E. 358 , it was held that a police officer of a city was an “executive officer” within the meaning of a statute making it a crime for any person to bribe “any executive, legislative, or judicial officer.” In that case the Court quoted with approval the following language from Throop on Public Officers, Section 23:

“The duties imposed upon the officer are supposed to be capable of classification under one of these heads, the legislative, executive, or judicial, and to *421 pertain accordingly to one of the three departments of government designated by those names. But the classification cannot be very exact, and there are numerous officers who cannot be classified at all under these heads. The reason will be apparent if we name one class as an illustration. Taxing officers perform duties which in strictness are neither executive nor judicial, though in some particulars they must execute the orders of superiors, and others they judge for themselves what is to be done; but sometimes, also, their duties partake of the legislative. All such officers are usually called administrative, while inferior executive officers are designated ministerial.”

The general rule is stated in 67 C.J.S., Officers, Section 2, pages 99-100, as follows:

“Because of the variety of meanings or shades of meaning in which the terms ‘office’ and ‘officer’ may be employed, in determining whether or not a given employment is an office within the meaning of a particular statute or other written law, each case must be determined by a consideration of the particular facts and circumstances involved and of the intention and subject matter of the enactment. The nature of the duties, the particular method in which they are to be performed, the end to be attained, the depositary of the power conferred, and the whole surroundings, must all be considered when the question as to whether a position is a public office or not is to be solved. When the term is used in a statute its meaning must be determined by a construction, not only of the particular section in which it is used, but by the statute as a whole and by other statutes of which the particular one forms a part as being in pari materia; and, also, constitutional provisions should be looked to as aids in deciding the question. Furthermore, the wording of particular statutes may be such that the same position may be held to be an office for one purpose and not for another.”

For reasons stated, I would deny the writs of prohibition in these cases.

I am authorized to state that Judge Berry concurs in the views expressed in this dissenting opinion.