The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1871-08-21
John d. Staley aud others


Maxwell, j. BY the second section OF
nm act purpOrting to be passed by the Leg.
stature Of this State, on the 23d day Of
February, 1871, entitled IAN act to charge
the county.seat of Jefferson to Charles.
town, in said county," It Is provided that
the COunty.selt of sad county Of JGiler.
son shall cease to be at ShepherdstOwn in
said county 80 days from and after the
passage Of this act, and from AAd after
This date, be located at Charlestown in
said county.
The third section of said act provides
that Logan Osburn, James II, Morrow,
John q, COCkrell, David Howell, .ir,, and
John j, Lock be appointed Commission.
crs to carry out the purposes OF the act by
causing the public records to be removed
from ShCphGrdstOwn to CharlestOwn, and
by causing to beprOCured at Charlcstown
rooms suitable to contain the records, and
to be used Us Offices by the county Oil.
GERS. The said Commissioners were re-
uuircd 10 do certain other things not
necessary 10 be mentioned,
The second cause assigned rs error Is
that the injunction was Improperly nj.
lowed by u Judge Of this Court, because ii
is claimed that the person who Endorsed
the refusal of the injunction rs Judge of
the Fifth Circuit, was not at the time u
Judge Of the said Circuit.
II is well known that the person who
ndOrsed his refusal To allow tho inunC.
ton was ut that time, and still is, the act
ing Judge of the Fifth Circuit, and the
18th section Of chapter Ol the Code, page
=, provides that all acts done by any per.
son by authority Of any office shall be
valid, and such would indeed be the
law without this net Of the Legislature.
When the said Commissioners were
about to proceed to carry into effect the
provisions Of the act, John D. Slaley and
others, the appcllCcs here, citizens, tax.
payers and residents Of Jefferson county,
applied to the Judge Of the Fifth Judicial
circuit for m Injunction, 10 CnjOin and
restrain them from performing their sup.
posed duty under the said act The said
Judge refused to award the injunction
and application was then made TO one OF
the Judges Of this court who granted IT,,
and the cause was sent 10 the Circuit
Court OflCllcrsOn county to he proceeded
ill., The defendants, upon being sum
moncd, answered the bill and moved the
Judge Ol the Circuit Court Of Jefferson
county, in vacation, to dissolve the in.
junction, which he refused to do, and II Is
from this order the case comes here on
appeal to he reviewed.
The first CausC OF error assigned Is
That the compliments are private per.
sons, and not acting in any official ca
pacity, anil therefore could not cniOin the
defendants. The bin and amended bill
filed after the Injunction was allowed,
show that certain " the parties named
have special interests To he affected by the
removal Of the county seat, and also show
that the bill is filed III behalf Of the com
claimants and others in the county Of JEFF.
icrson having like interests, which is slll.
licient To allow them to maintain the
suit.-(story's Equity Headings, see. | ~
I.nsher w Settles, 4 ", Va. rep, p. II
Kuhn rs Board of Education ii Wells.
burg, W. Va. rep. 1907
The third ground Of error assigned Is
that "thc court cannot for the purpose Of
impeaching n statutego behind the record
to inquire into the regularity Of the pro-
rCcdlngs Of the Legislature in passing
such act. The enrolled bill, therefore, MI
tllcntiCated according to the form presCrib
ed by law ia the ultimate and conclusive
proof the legislative will. The Journals
If the legislative houses are not competent
evidence to show that u copy OF Il statute
authenticated in the manner above stated
does not contain the whole law rs In
point Of fact II was enacted. The validity
If such statute cannot be impCaChCd OI
cOntradictcd by the journals Of the Legls
Aturc."
The proposition intended to he pro
pounded by this formula is, that llli'
court cannot go behind the bill rs enroll
I'd by the Clerk Of the House OI Dele
gates and signed by the President .
Srnatc and Speaker Of the House oI Dele
gates, to look nj the journal Of the Sen
ate to see il the bill was passed by TIN
number Of votes required by the Gonsli
tuition
The Constitution, article 1, section ~
provides that non the passngcOL every bill
The vote shall he taken by yeas and nay
and he entered on the journal, and no bill
shall he passed by either branch wilhon
Al affirmative vote Of II majority NJ lh,
members elected thereto"
Section 20 provides that teach brAnCI
shall keep n journal Of its proceeding!
and cause the same to be published ir0r
time to time"
What Is the evidence Of the existcnC
NJ statute 10 which the courts mus
look, is u question which has bee
often before the courts, and very mnc
discussed. The latest case before tls d
this time is that Of King rG Arundel, II
ported in Hobart, p. 100. The first poir
in this case was to get f1 OF an act {
Parliament which had tile Kings "nSscr
unto it, and "whCreuntO the great seal
SET ms the course is IN private acts b,
cause II was not tho act Of both Houses
the Lords and COmmons--ns 1t ought
he The court examined the iOurnn
and could not find that the bill rs amCnt
I'd, and to which the great seal was n
taChCd, had been passed nv both house
and proceeded to state "But now, SUI
posing that the Journals were every wa
full and perfect, yet II hath no power
destroy or weaken the act which, being
high record must lie tried only by It's les
mSip~. Now, Journals are no record
hut remcmhranccs " forms oi pr,
ceedings. To the record they al
not Ol necessity, neither have the
always been. They are like ii
lockcts Of the prOthonotarics or ii
particular 10 the Kings patent
So 1t was held that the Courts could n
90 behind The authorization Of the A,
and II is believed that this case has rul,
the English Courts from that time to Il
present
The rule established in England il
been lollowciby the Courts OF last resi-
in several Of the United States, as will Il
pear from the following cases Ed