dissenting:
I dissent from the decision of the majority of this Court in these prohibition proceedings which denies the writs sought by the petitioner and holds that the warrants of arrest issued by a lieutenant of police of the City of South Charleston during the absence of the chief of police of that city, charging the petitioner with municipal offenses of disorderly conduct and resisting arrest which occurred in that city on the 15th day of May, 1966, are valid and that by virtue of Section 7.6 of Article 7 of the Home Rule Charter of the City of South Charleston the lieutenant of police was authorized to issue such warrants.
Though other incidental questions are involved in these proceedings, the decisive question involves the validity or the invalidity of the warrants, and this dissent is based on the proposition that the lieutenant of police, notwithstanding the charter provision and any ordinances, was without power or authority to issue the warrants because in so acting he exercised judicial power which, because of Article Y of the Constitution of this State, could not be conferred upon the lieutenant of police, who is manifestly not a judicial officer but is an executive or administrative officer of the municipality.
Though there may be some decisions to the contrary, the clear weight of authority is that the issuance of a warrant of arrest is a judicial act which can be exercised only by an officer who is authorized by law to issue such warrant. 22 C.J.S., Criminal Law, Section 318; 51 C.J.S., Justices of the Peace, Section 19c; State ex rel. Anderson v. Gile, 119 Mont. 182, 172 P. 2d 583; State v. Furmage, 250 N. C. 616, 109 S. E. 2d 563; State v. McGowan, 243 N. C. 431, 90 S. E. 2d 703; Bearden v. State, 29 Okla. Crim. 398, 233 P. 1100; Beasley v. State, 26 Okla. Crim. 398, 224 P. 376; Fraley v. Ramey, 239 F. Supp. 993; Williamson v. Waugh, 160 F. Supp. 72. See also State ex rel. Staley v. Hereford, 131 W. Va. 84, 45 S. E. 2d 738. In that case *345this Court said that the issuance of civil process, which is analogous to the issuance of a warrant, is by the weight of authority deemed to be a judicial act and that the service of process is regarded as an administrative act. It is also well established that the service of a warrant is an executive function. State v. McGowan, 243 N. C. 431, 90 S. E. 2d 703. Inasmuch as the issuance of a warrant is clearly a judicial act and the service of a warrant is equally clearly an executive or administrative act, the issuance of a warrant by the lieutenant of police, who clearly is not a judicial officer, is violative of Article V of the Constitution of this State.
That article which has been many times considered by this Court, the most recent case being State ex rel. State Building Commission of West Virginia v. Bailey, 151 W. Va. _, 150 S. E. 2d 449, decided during the present term of this Court, provides that‘‘ The Legislative, Executive and Judicial Departments shall be separate and distinct, so that neither shall exercise the powers properly belonging to either of the others; nor shall any person exercise the powers of more than one of them at the same time, except that justices of the peace shall be eligible to the Legislature.”
Though, as pointed out in the majority opinion, in some of its decisions this Court has recognized that there must necessarily be an overlapping of these powers in certain responsible officials, Wheeling Bridge and Terminal Railway Company v. Paull, 39 W. Va. 142, 19 S. E. 551, most of the decisions of this Court and particularly its later and more recent decisions have regarded the constitutional requirement of the separation of the powers of government as a requirement which must be strictly enforced. State ex rel. Building Commission of West Virginia v. Bailey, 151 W. Va. _, 150 S. E. 2d 449; Farley v. Graney, 146 W. Va. 22, 119 S. E. 2d 833; The West Virginia State Bar v. Earley, 144 W. Va. 504, 109 S. E. 2d 420; State ex rel. Winter v. Brown, 143 W. Va. *346617, 103 S. E. 2d 892; State ex rel. Richardson v. The County Court of Kanawha County, 138 W. Va. 885, 78 S. E. 2d 569; State v. Huber, 129 W. Va. 198, 40 S. E. 2d 11; 168 A.L.R. 808; Harbert v. The County Court of Harrison County, 129 W. Va. 54, 39 S. E. 2d 177; Sims v. Fisher, 125 W. Va. 512, 25 S. E. 2d 216; Danielley v. City of Princeton, 113 W. Va. 252, 167 S. E. 620; State ex rel. Baker v. County Court of Tyler County, 112 W. Va. 406, 164 S. E. 515; Price v. City of Moundsville, 43 W. Va. 523, 27 S. E. 218, 64 Am. St. Rep. 878; Shephard v. Wheeling, 30 W. Va. 479, 4 S. E. 635.
In State ex rel. Building Commission of West Virginia v. Bailey, 151 W. Va. _, 150 S. E. 2d 449, with reference to the language of Article V of the Constitution of this State, this Court said: “That language is clear and free from ambiguity and its requirement of the separation of the powers of government must he strictly enforced.” In the earlier case of State ex rel. Miller v. Buchanan, 24 W. Va. 362, this Court declared that the legislative, executive and judicial departments of government must be kept separate and distinct and that each must be protected in its legitimate sphere of action. In State v. Huber, 129 W. Va. 198, 40 S. E. 11, 168 A.L.R. 808, this Court said that no question could he raised as to the plain meaning of the article; and in Hodges v. Public Service Commission, 110 W. Va. 649, 159 S. E. 834, this Court also said that its plain language calls not for construction but only for obedience.
In State ex rel. Richardson v. The County Court of Kanawha County, 138 W. Va. 885, 78 S. E. 2d 569, an original mandamus proceeding, in which this Court held a statutory provision unconstitutional insofar as it attempted to authorize the Domestic Relations Court of Kanawha County to fix the amounts of salaries of probation officers, medical, clerical, and secretarial assistants, as violative of Article V of the Constitution of this State in that it attempted to vest in the judicial *347department a nonjudieial function, said: “It seems apparent, and is pointed out in numerous decisions of this Court, that there can not be, in the very nature of things, any exact delineation of judicial, legislative or executive powers. There must be some mingling or overlapping. The overall purpose of the Constitution is to create a workable form of government, and to deny to any one of the three departments any function actually necessary for the operation of that department would effectively render the form of government impotent. The Constitution itself in effect provides exceptions to the separation of departments made by Article Y. For example, county courts are vested with certain judicial powers and ‘such other duties, not of a judicial nature, as may be prescribed by law’, and Article Y itself provides that justices of the peace may serve in the Legislature. ’ ’
In State v. Huber, 129 W. Va. 198, 40 S. E. 2d 11, in holding unconstitutional certain statutory provisions which undertook to confer administrative powers upon courts of record and in discussing Article Y of the Constitution of this State, relating to the separation of the three powers of government, this Court said: “The separation of these powers; the independence of one from the other; the requirement that one department shall not exercise or encroach upon the powers of the other two, is fundamental in our system of G-overnment, State and Federal. Each acts, and is intended to act, as a check upon the others, and thus a balanced system is maintained. No theory of government has been more loudly acclaimed. ’ ’
In Danielley v. City of Princeton, 113 W. Va. 252, 167 S. E. 620, in holding unconstitutional a statute which created a State Water Commission, this Court used this language: “The legislative, executive and judicial powers, under the Constitution, are each in its own sphere of duty, independent of and exclusive of the other; so that whenever a subject is committed to the discretion of the legislative or executive department, the lawful exercise of that discretion cannot be *348controlled by the judiciary. * * *. This inhibition is so well established that it should be known even to the sciolist. ’ ’
In Hodges v. Public Service Commission, 110 W. Va. 649, 159 S. E. 834, in declaring unconstitutional a provision of a statute which vested in the Public Service Commission the power to issue license to construct dams, this Court, discussing Article Y of the Constitution, said: “ ‘Whether a drainage ditch proposed to be constructed * * * will be conducive to the public health, convenience or welfare, or whether the route thereof is practicable, are questions of governmental or administrative policy, and are not of judicial cognizance, and jurisdiction over them by appeal or otherwise cannot be conferred upon the courts by statute.’ ”
The majority opinion concedes that the issuance of a warrant of arrest is in essence a judicial act. The issuance of a warrant for the arrest of a person is not a routine or trivial act; it is fraught with serious consequences. The person who is subjected to a warrant of arrest and arrested under it is deprived of his personal liberty and if the warrant is invalid his detention in custody is illegal and is violative of his constitutional right of due process. Section 6 of Article III of the Constitution of this State provides, in part, that “No warrant shall issue except upon probable cause, supported by oath or affirmation, particularly describing the place to be searched, or the person or thing to be seized.” To issue a valid warrant of arrest probable cause must be established and the officer issuing the warrant is required to determine whether such probable cause exists. This is a judicial function and constitutes one of the reasons for considering the issuance of a warrant of arrest to be a judicial act. In these cases the police officer who issued the warrant also made, or assisted in making, the arrest and in that respect performed an executive act. His action in performing functions of a dual nature, judicial in the issuance of the warrant and executive in its service, in my judgment is a clear violation *349of the particular language of Article Y of the Constitution' that “nor shall any person exercise the powers, pf more than one of them at the same time * * and it was just such conduct in the performance of dual functions of government that the framers of our Constitution intended to prevent by the express statement “nor shall any person exercise the powers of more than one of them at the same time.”
Under the foregoing authorities it is my considered opinion that in issuing the warrants here involved, which were clearly judicial acts, the police lieutenant of the City of South Charleston acted in manifest contravention of Article V of the Constitution of this State; that for that reason such warrants are void and of no effect, and this Court, by the issuance of writs in these proceedings, should have prohibited the Intermediate Court of Kanawha County from trying the petitioner on each of such warrants. By its refusal so to do, it in effect created another exception to Article Y of the Constitution which, in State ex rel. Richardson v. The County Court of Kanawha County, 138 W. Va. 885, 78 S. E. 2d 569, it refused to do and said it could not do merely because the Founders had themselves provided certain designated exceptions.
I am authorized to state that Judge Caplan joins in this dissent.