¶1 dissenting:
¶2 I cannot concur in the decision of the majority in this proceeding. I do not believe that the privileges secured to individuals under the ancient and time-honored writ of habeas corpus should be so lightly disposed of, and especially on grounds which do not go to the merits of the case, with the result that two helpless old women are deprived of their freedom, through an order of a court which, in my judgment, acted without jurisdiction, and which order was absolutely void.
¶3 The writ of habeas corpus is a very ancient writ, its origin obscure, and said to be lost in antiquity. We know that in the very early history of the Anglo-Saxon race in England, and very soon after Magna Charta, the writ was *685 originated, for the purpose of securing the freedom of individuals against illegal or arbitrary power. It became a part of the common law of England, and, in 1679, as declaratory of the common law, the Habeas Corpus Act was enacted. It was transplanted on the shores of America, and became a part of our common law. The Habeas Corpus Act of 1679, and the decisions of the English courts have been accepted by the courts of this country as guides in the use of the writ. McNally v. Hill, Warden, 293 U. S. 131. So firmly established did it become, that when the Constitution of the United States was adopted, it did not appear to be necessary to use any language expressly recognizing the writ, but there was a provision therein which reads: “The Privilege of the Writ of Habeas Corpus shall not be suspended,- unless when in Cases of Rebellion or Invasion the public Safety may require it.” When we came to the forming of the Constitution of West Virginia, it was provided by Section 4, Article III thereof that: “The privilege of the writ of habeas corpus shall not be suspended.” Thus we have the writ so firmly established in our law that it cannot be repealed or suspended by our State Legislature, and only suspended in special instances by the Federal Government. The decisions of our courts have uniformly upheld the writ in all its force and power. It has stood out as the only writ to which all men may resort, where their individual rights are encroached upon by the illegal deprivation of their freedom. It has been said: “Habeas corpus acts should receive a liberal construction, in disregard, if need be, of the technical language used, and should always be construed in favor of the liberty of the citizen.” 25 Am. Jur., 148. For a general discussion of the origin and history of the writ of habeas corpus, see 25 Am. Jur. 143; I Cooley’s Constitutional Limitations, 8th ed. 709. “By immemorial tradition the aim of habeas corpus is a justice that is swift and summary.” McCanliss v. McCanliss (N. Y.), 175 N. E. 129, 82 A. L. R. 1141; Buchanan v. Buchanan (Va.), 197 S. E. 426, 116 A. L. R. 688.
¶4 In my opinion, the question which must determine the *686 decision in this case is whether the County Court of Wood County had jurisdiction to appoint respondent as committee for the petitioners. There is, in my judgment, no question involved as to whether the order of that court was void or voidable. If the court did not have the jurisdiction contended for, its order was void, and can be attacked in any proceeding. So far as I know, no one seriously contends that the County Court of Wood County had jurisdiction to make the appointment now under attack. Certainly, the majority opinion does not so hold. It only holds that what that court did was voidable, and could be attacked only by some appellate process, or other proceeding which could be termed a direct attack.
¶5 This calls for consideration of the jurisdiction of county courts. Section 22 of Article VIII of our Constitution provides: “There shall be in each county of the State a county court, composed of three commissioners, and two of said commissioners shall be a quorum for the transaction of business … Section 24 of the same Article provides with respect to the powers of county courts that: “* :ji * they shall have jurisdiction in all matters of probate, the appointment and qualification of personal representatives, guardians, committees, curators, and the settlement of their accounts, and in all matters relating to apprentices. … Code, 27-9-1, provides: , “When a person is found insane or to be a mental defective by any court or by the county mental hygiene commission, or is committed to a state hospital by the county court, the county court shall appoint a committee for him.” The power to appoint a committee is, of course, vested in county courts under the Constitution, and it is a power of which they cannot be deprived. Doak, Admr. v. Smith, 93 W. Va. 133, 116 S. E. 691.
¶6 •The question arises as to whether a county court is a court of general jurisdiction, so far as it exercises the powers relating to the appointment and qualification of personal representatives’, guardians, committees and curators. This Court has not been entirely consistent on this proposition, but has finally settled upon the holding *687 in Boone v. Boone, 123 W. Va. 696, 17 S. E. 2d 790, in which it is held: “County courts are of limited jurisdiction in the sense that their powers are prescribed by Section 24, Article VIII, West Virginia Constitution, but in all matters of probate, the appointment of the fiduciaries - named in said Section 24, and the settlement of their accounts, they are courts of record, vested with judicial powers and unlimited in their jurisdiction where, in regular session, jurisdiction of both subject matter and parties is had.” See Starcher v. South Penn Oil Co., 81 W. Va. 587, 95 S. E. 28; Doak, Admr. v. Smith, supra. These holdings are important, because of the well-known rule that, ordinarily, jurisdiction will be presumed as to courts having general jurisdiction, and in the case at bar the holding of the majority opinion is based upon the presumption that the County Court of Wood County, being a court of general jurisdiction, with respect to the appointment of personal representatives, committees, etc., its jurisdiction to make the appointment under' attack in this case can be presumed. This might be true if there were no facts in the case affecting the question of jurisdiction, beyond all question of doubt, that the County Court of Wood County made an appointment of a committee for two residents of Roane County, and, therefore, did not have jurisdiction of either the subject matter, or of the parties, and was wholly without power to act. When .facts are shown in any case, all presumptions relating to any question affected by such facts, disappear. Why rely on presumption when facts are present? Why ignore facts and resort to presumption?
¶7 In this connection, it may be well to state that the presence of the petitioners in Wood County, however brought about, cannot be relied upon to support the proposition that they voluntarily became residents and citizens of that county. If they went there of their own volition, and had the capacity to make decisions as to the change of residence involved, they were not mental incompetents, and therefore the County Court of Wood County had no right to appoint the committee, although that act may only be *688 error; if, on the other hand, they were incompetent, they did not possess the necessary mental powers to make the determination necessary for a change of residence.
¶8 In my opinion, a county court has no jurisdiction to determine the personal rights of individuals residing in another county. Fundamentally, the jurisdiction of a county court cannot extend beyond the boundaries of the county in which it is elected. Our whole system of local self-government is based upon the idea that the power and jurisdiction of officers, elected by the people to administer laws, including judges and county courts, do not extend beyond the boundaries of the county or district in which they were elected, unless by special statutory provision. This principle runs through our laws and applies to offices, such as justices of the peace, members of boards of education, as well as to county courts and circuit courts. Processes of circuit courts run throughout the State, but even a circuit court cannot pass upon the rights of an individual residing in another circuit. Click v. Click, 98 W. Va. 419, 127 S. E. 194.
¶9 But it is said that the statute does not expressly limit a county court in the appointment of committees, and on this slender cord it is argued that a county court may appoint a committee for any person who happens to reside temporarily in its county; and that is what was done in the case at bar. If this argument is to prevail, there is nothing to prevent a county court in any county, wherein is located one of our hospitals for the insane or the feeble minded, from exercising, at will, the power to appoint committees for inmates. The statute, authorizing the appointment of a committee by a county court, does not require that notice be given the person for whom a committee is sought, and yet in Lance v. McCoy, 34 W. Va. 416, 12 S. E. 728, and in Evans v. Johnson, 39 W. Va. 299, 19 S. E. 623, in opinions prepared by Judge Brannon, It was held that there can be no appointment of a committee without notice to the person for whom a committee is sought. To my mind it is just as justifiable and important to hold that a citizen of a county is entitled to be judged, as to his per *689 son and his property, by the instrumentalities set up lor that purpose in his own county. The fact that our statute does not expressly provide that a county court cannot appoint a committee for a person, not a resident of the county, as is the case with the appointment of executors and administrators, is of no consequence. On this question I think the general principle should prevail, that no county court should ever be permitted to exercise any authority over the person or affairs of a resident of another county, except, of course, in those cases where the resident of another county owns property located in a county other than his residence, which might be affected by some action of its county court.
¶10 If the County Court of Wood County was without jurisdiction to make the appointment of the respondent as committee for petitioners, then its action was void. The case of Ex Parte Mooney, 26 W. Va. 37, is perhaps the leading case on habeas corpus in West Virginia. In that case it is held: “When a party is imprisoned under a judgment or order of a court having jurisdiction to make such order, he cannot be discharged on habeas corpus, however erroneous such judgment or order may be; but it is otherwise if the court had no jurisdiction to make the order or judgment.” Thus, in plain and simple language, it is stated, in effect, that if a court has no jurisdiction to make the order or judgment, a petitioner may be discharged from its intended effect on habeas corpus. This opinion was written by Judge Snyder, whose reputation for ability and clarity of expression is not excelled by any man who has ever occupied a seat on this Court. The same principle is followed in Ex Parte Evans, 42 W. Va. 242, 24 S. E. 888, in which it is held: “The remedy for mere irregularity in the process or mere error in the proceedings of courts of competent jurisdiction is by appeal or writ of error, not by habeas corpus; otherwise if the process or proceedings be void.” These cases have never been overruled, and I do not think they will now be questioned.
¶11 In the course of years, the writ of habeas corpus has been somewhat liberalized, and has been frequently re *690 sorted to in situations respecting the custody of children, and it has always applied to cases where persons are held in confinement under an order of some court or other tribunal. It is undoubtedly true that in cases where a court or other tribunal has jurisdiction to impose imprisonment, or to decree custody of children, or otherwise applies to people under restraint, they cannot secure their release under writ of habeas corpus, but must resort to the remedies open to them under the law. A person convicted of crime in one of our courts, having jurisdiction of a case, must prosecute an appeal. Where in a suit for divorce, or otherwise, the custody of children is committed to one person, there can be no resort to writ of habeas corpus, because the right of appeal is open. But, in all cases where this principle applies, the distinct foundation of the rule is that the court or other tribunal possessed jurisdiction to impose sentence or decree custody. To no case of which I have any knowledge, does this principle apply where, in the first instance, the court decreeing the restraint or custody was without jurisdiction to do so. In all such cases the writ of habeas corpus may be invoked.
¶12 That there can be no question that respondent relies on the order of the County Court of Wood County, as justifying the restraint of petitioners, we have only to refer to the record. Petition was filed on the part of the petitioners, by which respondent was required to come into court and justify their alleged detention. She did so by sole reliance on the order of the County Court of Wood County, appointing her as committee for the petitioners; and in the record, in the return, and by stipulation of the parties, it is admitted that the petitioners had been lifelong residents of Roane County until they had been brought to Wood County, a short time previous to respondent’s appointment as committee. Respondent having made that defense to the writ, we are, in my judgment, called upon to determine whether the County Court of Wood County had jurisdiction to make such appointment, and we cannot escape that duty by raising the question as to whether the action of the county court was void or void *691 able. That order either justified the custody of the petitioners, by respondent, or it was absolutely void. There can be no middle ground. Surely, when the respondent put in issue the jurisdictional question, we should base our decision on the legal and factual issue presented, and not on any presumption of jurisdiction.
¶13 The majority opinion is based, I think solely, on the case of Colley v. Calhoun, 89 W. Va. 399, 109 S. E. 484, where a resident of McDowell County went to a hospital in Blue-field, Mercer County, for treatment, and there died. An administrator was appointed for his estate in Mercer County, and when that administrator instituted an action at law to recover a debt due his decedent, the authority of the administrator to maintain the action was challenged, on the ground that his appointment was improper and illegal. This Court held that the appointment was not void, and therefore could not be the subject of a collateral attack. The decision in the Colley case is supported by a number of authorities cited therein, but an examination of those authorities will show that they all refer to cases involving the appointment of administrators or guardians, wherein there may be said to be presumption of jurisdiction, leading to the conclusion that on presumed jurisdiction its decision would not be void, but only voidable. I do not disagree with that holding, because it is apparently necessary in the prompt settlement of estates of decedents; but the distinction between cases of that type and cases in habeas corpus, which seems to have been lost sight of, is that those cases involved property of a decedent, or the estate of a ward; there was no question of personal liberty involved. Habeas corpus is a writ which provides prompt and speedy remedy intended to protect people in the freedom of their persons, and it is never concerned with property rights. Its use should never be made dependent on the tedious and delayed proceedings in other cases, or the processes of appeal or writ of error.' Application for relief under the writ is informal, as this Court well knows, because we have frequently entertained petitions written by parties in prison without the *692 aid of counsel. Technical pleadings, and long delay should never be tolerated in habeas corpus proceedings. We should go to the heart of the matter, and promptly determine, once and for all whether a petitioner for such writ is being illegally deprived of his liberty. In this case there can be no reasonable excuse for refusing to pass on the sole issue presented, and that is whether the County Court of Wood County had jurisdiction to appoint respondent as committee for Selina Nutter and Nancy Nutter, the petitioners. I do not think it had that jurisdiction, and, therefore, I would release the petitioners from the illegal custody of the respondent.
¶14 I am authorized to state that Judge Riley concurs in this dissent.