"As a general rule, when a rehearing is granted, the status of the case is the same as though no hearing had occurred____The granting of a rehearing withdraws an opinion previously rendered and destroys its force and effect unless it is subsequently adopted by the same tribunal.... By reason of the rehearing heretofore granted!,] the Majority opinion!, the concurring,] and the dissenting opinions heretofore filed in this case are withdrawn and held for naught.” (internal citations omitted)
How later courts described this case
- "As a general rule, when a rehearing is granted, the status of the case is the same as though no hearing had occurred____The granting of a rehearing withdraws an opinion previously rendered and destroys its force and effect unless it is subsequently adopted by the same tribunal.... By reason of the rehearing heretofore granted!,] the Majority opinion!, the concurring,] and the dissenting opinions heretofore filed in this case are withdrawn and held for naught.” (internal citations omitted)
Written by the judges who cited it.
The opinion
Calhoun, Judge,
dissenting:
Respectfully, I dissent for various reasons.
The accused in this case was convicted upon his plea of guilty. I would hold that the judgment entered by the justice of the peace is void for uncertainty. Upon this basis, I would *913 relieve Moats of the fine imposed by the justice; discharge him in relation to the sentence of imprisonment in the county jail; and, in these circumstances, I would not consider or decide either of the two constitutional questions urged in behalf of the petitioner in the habeas corpus proceeding. State ex rel. Titus v. Hayes, 150 W.Va. 151 , pt. 5 syl., 144 S.E.2d 502 . In the main, I agree with the views expressed by Judge Browning in his dissenting opinion.
Code, 1931, 17C-5-2(c), as amended, provides the penalty for the criminal offense involved in this case as follows: “* * * shall be punished by imprisonment in the county jail for a period of not less than twenty-four hours nor more than six months and, in addition to such mandatory jail sentence, such person may he fined not less than fifty nor more than one hundred dollars; and, in every case of conviction under this section, such convicted person’s operator’s or chauffeur’s license shall be revoked for a period of six months.” (Italics supplied.) Imprisonment for not less than twenty-four hours is mandatory. Imposition of a fine, in addition to the jail sentence, is discretionary.
The sentence imposed by the justice of the peace, as disclosed by his docket, was as follows: “The defendant is committed to the county jail for thirty days in lieu of fine and cost.” (Italics supplied.) That sentence is unwarranted by law and is utterly unintelligible. The justice had the mandatory duty to impose a jail sentence, but no authority to impose a jail sentence of thirty days “in lieu of fine and cost.”
How can it be determined what the justice designed or intended by the words, “in lieu of”? Does the quoted phrase mean that the defendant, had he not been an indigent person, might have been sentenced to confinement in the county jail merely for the minimum period of twenty-four hours? If the sentence was designed and intended to impose a greater jail sentence solely because the defendant was an indigent person and therefore unable to pay a fine of not less than fifty dollars and costs, then it follows that the justice indulged in a discrimination against the defendant because of his indigency. If this was the intent of the justice and if, as I believe, this is *914 •the clear import of the sentence, this Court should have considered the effect of this judgment in the light of the decisions of the Supreme Court of the United States in the following cases: Tate v. Short, 401 U.S. 395 (decided March 2, 1971); Williams v. Illinois, 399 U.S. 235 ; Morris v. Schoonfield, 399 U.S. 508 .
As stated in the Court’s opinion in this case, the justice, in his testimony, undertook to explain or to elaborate upon the sentence disclosed by his docket by the following statement: “I gave him a fine and costs of fifty dollars, or thirty days.” Assuming that this testimony was proper in an effort to explain, bolster or validate the previous unintelligible, legally-Unwarranted sentence, such testimony only serves to enhance the uncertainty, indefiniteness and the unintelligibility of the sentence. Whereas the sentence disclosed by the docket is stated alternatively by use of the words, “in lieu of”, the sentence disclosed by the justice’s testimony is stated dis-junctively by use of the words, “or thirty days”. I would hold that the sentence disclosed by the docket and the sentence disclosed by the testimony, whether considered together or separately, are unwarranted by law, unintelligible and void on the basis of indefiniteness and uncertainty.
Where a sentence is so lacking in definiteness and certainty that it is unintelligible, it is void, and one imprisoned pursuant to such a sentence may be discharged from such imprisonment by a proceeding in habeas corpus. State ex rel. Wright v. Boles, 150 W.Va. 381 , 146 S.E.2d 524 ; State ex rel. Nicholson v. Boles, 148 W.Va. 229 , 134 S.E.2d 576 ; 21 Am. Jur. 2d, Criminal Law, Section 534, page 516, 24 C.J.S., Criminal Law, Section 1581, page 553. “In the absence of a statute authorizing it, an alternative sentence cannot be imposed. As a general rule, the trial court is without power to impose an alternative sentence which at the same time is uncertain and which gives to accused the choice of imprisonment or fine; it is the duty of the court to determine whether one or the other or both shall be imposed. Ordinarily, a sentence directing the alternative punishment of fine or imprisonment is void for uncertainty.” 24 C.J.S., Criminal Law, Section 1581, page 557. *915 However, I can conceive of no legal basis for the Court’s decision that the conviction is void.
The question of the propriety or legality of the fee system is not presented for decision by the facts of this case. The accused entered a plea of guilty to the charge contained in the warrant; and, therefore, the justice of the peace was never faced with any possibility of temptation to convict the accused in order to earn additional compensation. I respectfully suggest that the Court’s opinion, concurred in by three of the five members of the Court, laboriously sets up a straw man and thereafter, by reasoning which I regard as fallacious, proceeds solemnly to knock him down.
I am unable to perceive any legal basis upon which the Court was warranted in holding that the judgment of the justice is void rather than, at most, merely voidable because of the alleged fact that he had a pecuniary interest in the case. If the judgment is voidable but not void, it “can not be considered or corrected” in a habeas corpus proceeding. State ex rel. Nicholson v. Boles, 148 W.Va. 229 , pt. 1 syl., 134 S.E.2d 576 .
Justice of the peace courts, circuit courts and this Court were all created by Article VIII, Section 1 of the Constitution of West Virginia. Justice of the peace courts, therefore, have the same constitutional status as this Court. The jurisdiction of the justice to entertain and to try one on a criminal charge such as that involved in this case is conferred by Article VIII, Section 28 of the Constitution of West Virginia and by Code, 1931, 17C-19-9, as amended. It is undisputed that the justice in this case had jurisdiction of both the person and of the subject matter. It is not disputed that he was duly qualified to act as a justice of the peace.
The sole basis of the Court’s decision that the judgment of the justice is void is based on the tenuous proposition that he had a financial interest in the case which, in this case, amounted to the possible receipt of a fee of fifty cents. This, at most, means that the justice was disqualified by “pecuniary interest” to act in the case. Prior to the decision of this case, it was *916 settled by prior decisions of this Court, in accord with a general or universal rule, that where a judicial officer is disqualified to act in a case merely by reason of his pecuniary interest, a judgment rendered by the judicial officer in the case is voidable but not void. Heretofore it has been made clear by decisions of this Court that such a disqualification is waived if objection to the disqualification is not raised before the entry of the judgment. These principles were clearly declared in a case substantially identical to the present case, involving disqualification of a justice in a criminal case arising from his pecuniary interest based on the fee system. State v. Simmons, 117 W.Va. 326 , 185 S.E. 417 . The decision in the Simmons case is diametrically opposed to the decision in the present case. The opinion in the Simmons case states clearly, forcefully and convincingly the views I entertain in relation to the decision in the present case. To the same effect, see Butcher v. Kunst, 65 W.Va. 384 , pt. 9 syl., 64 S.E. 967 ; City of Grafton v. Holt, 58 W.Va. 182 , 52 S.E. 21 ; Forest Coal Co. v. Doolittle, 54 W.Va. 210 , 46 S.E. 238 ; Findley v. Smith, 42 W.Va. 299 , 26 S.E. 370 ; 46 Am. Jur. 2d, Judges, Section 98, page 163 and Section 231, page 253; 48 C.J.S., Judges, Section 97 c(2), page 1109. The Court makes no reference in the syllabus to the legal principles so clearly stated in the five prior decisions of this Court listed immediately above.
In reference to State v. Simmons, supra, the Court, in the body of the opinion, makes this statement: “The statement in the opinion in that case, upon the authority of the civil case of City of Grafton v. Holt, 58 W.Va. 182 , 52 S.E. 21 , 6 Ann. Cas. 403, that ‘The action of a judicial officer who was disqualified by personal interest is voidable, not void,’ is expressly disapproved.” The word “disapproved” is a word sometimes euphemistically used for the word “overruled.” The Simmons case apparently has been overruled. Inasmuch as the Court referred to a single sentence appearing in the body of the opinion in the Simmons case, I deem it important here to quote the two points of the syllabus of that case to demonstrate the deliberateness and clarity which characterized the Court’s decision in that case. The two syllabus points are as follows:
*917 “1. The question of the alleged disqualification of a justice of the peace because of interest cannot be raised for the first time on appeal, where the disqualification, if arising under special circumstances, was known, or, if arising under general law, was presumed to be known.
“2. Where a justice of the peace took cognizance of a misdemeanor case, within his general jurisdiction, after the enactment of Code, 50-17-14 and 7-5-15 and before the repeal thereof, the question of the alleged disqualification of the justice to act in such case, on the ground that the said statutes were unconstitutional because of the manner therein provided for payment of the fees qf the justice, not having been raised until after judgment had been rendered by the justice and the case had passed beyond his control, must be deemed to have been waived.”
The action of the Court in overruling the Simmons case necessarily results in the overruling of the Butcher, City of Grafton, Forest Coal Co. and Findley cases. If such additional cases have not been overruled, it necessarily follows that the Court in this case is applying one rule in relation to criminal cases and another and different rule in relation to civil cases. I am not aware of any legal basis for such a distinction. The Court in this case has cited no precedent for such a wholly unwarranted distinction. The result is that the law, as expressed in this Court’s opinions, is left in a state of uncertainty in an area where certainty and clarity existed previously.
The majority opinion, as far as I can discern, does not cite a single case as a precedent for holding that the judgment of the justice in this case is void rather than voidable. State ex rel. Osborne v. Chinn, 146 W.Va. 610 , 121 S.E.2d 610 and Williams v. Brannen, 116 W.Va. 1 , 178 S.E. 67 , both involved proceedings in prohibition in which justices of the peace were prohibited from proceeding in certain criminal cases because of their pecuniary interest in such cases arising from the fee system of compensation. They are consistent with this Court’s prior decisions that a judgment rendered by a justice so disqualified is voidable rather than void and, therefore, cannot be attacked collaterally by a habeas corpus proceeding. Doty v. Goodwin, 246 Ark. 149 , 437 S.W.2d 233 , involved a case in *918 which the court prohibited a justice of the peace from trying a misdemeanor case because the justice could recover compensation in form of fees to be paid by the defendant only in the event of his conviction of the misdemeanor. Tumey v. Ohio, 273 U.S. 510 , involved a conviction by a mayor of one charged with having committed a criminal offense. That case is distinguishable from the present case for at least three reasons: First, the mayor received no compensation for trying the case unless he convicted the accused. Upon conviction, the prisoner was required to pay the mayor the sum of $12 as his fees and costs. Second, the accused, at the outset and before the commencement of the trial, “moved .for his dismissal because of the disqualification of the Mayor to try him, under the Fourteenth Amendment.” Third, the accused entered a plea of not guilty. The Court’s opinion ( 273 U.S. at page 535 ) contains the following statement: “He seasonably raised the objection and was entitled to halt the trial because of the disqualification of the judge, which existed both because of his direct pecuniary interest in the outcome, * *
With due deference but with utmost confidence, I assert that the Court in this case has cited no pertinent precedent whatsoever for declaring that the judgment of the justice was utterly void and, therefore, subject to attack in a collateral proceeding. On the contrary, the Court has disregarded well-established principles abundantly sustained by prior decisions of this Court, by declining- to hold that the judgment was merely voidable and hence not subject to attack in a habeas corpus proceeding.
The opinion contains an extended discussion of the question of the right of the accused to have been furnished counsel at public expense in the justice of the peace court. All this discussion is pure dictum. From this discussion it should not be assumed by anyone that a majority of the members of this Court are of the opinion that the accused was denied any constitutional right in this respect. Possibly an evidence of the fact that a majority of the members of the Court did not entertain such an opinion may be gleaned from the fact that the question relating to the right to counsel was so extensively discussed but not decided.
*919 As a consequence of this decision, justices of the peace cannot know whether they are afoot or horseback. As Judge Browning has stated, this has created problems throughout the state for all prosecuting attorneys, law enforcement officers and trial courts of record having jurisdiction in criminal cases. I do not assume to be able to furnish a certain solution to the problems thus created, but I do suggest that, by the Court’s opinion in this case, the statutes which provide for the fees which cause the alleged disqualification of justices in criminal cases have been declared to be unconstitutional and, therefore, such fees are not collectible. These statutory provisions are clearly separable so that other related statutory provisions remain unimpaired and valid. State ex rel. State Building Commission v. Bailey, 151 W.Va. 79 , 150 S.E.2d 449 . In this respect, the decision in the present case has effectively removed the disqualification of justices of the peace in criminal cases so far as the fee system of compensation is concerned. This conclusion is strongly suggested in Williams v. Brannen, 116 W.Va. 1, 6 , 178 S.E. 67, 69 . The opinion in the present case also suggests that in any case, civil or criminal, a justice of the peace may remove his disqualification by waiving all fees, the right to which may depend upon the nature of his decision.
When I undertake to determine what has been accomplished by the Court’s decision in this case, what contribution has been made to the sum total of effective administration of justice, I am by no means pleased because I believe we have freed an obviously guilty man and have needlessly created confusion and uncertainty to plague honest public officials throughout the state.