The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1872-10-15

Appeals OF West Virginia held yesterday
Judge Maxwell delivered the opinion O.
the Court In the case Of the Wheeling Ga
Company o.. the city Of Wheeling, affirm
ing the decree Of the Circuit Court, where
II will be remembered the case was decl-
ded in favor Of the city. The following
Is the decision In full:
The Wheeling Gas Company,
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The City Of Wheeling and others
The question as to whether the Gas
Company might proceed to obtain relief
by quo trGrTGnto, or information In the ma.
ture Of quo parTdnt0 made by counsel Tor
the city, does not arise in this case.
This Is q proceeding or bill in equity,
and as TO Jurisdiction the only question for
this Court to determine is whether or not
in the pleadings and proofs a proper case
Is made for relief In q Court Of equity.
The first point made by the counsel for
the Gas Company, is thakthe case In the
pleadings and proofs Is proper ono for
relief in equity.
There was q demurrer filed by the city
to the bill for the alleged reason that there
Is no equity therein. This demurrer is in
the answer Of the city, but was never act.
ed on by the Court.
When the case was decided 1t was heard
in the bill and papers filed as exhibits, an.
Swers OF defendants, replications filed,
agreements and dispositions taken In the
cause.
The fourth section Of chapter 10S, of
the code, p. 500, provides that no award
made under the provisions OF said chap
ter shall be set aside, except for errors
apparent on Its face, unless 1t appear to
have been procured by corruption, mis-.
take, or other undue means, or that there
was partiality or misbehAYior in the arbi.
traitors, or any OF them. But the section
shall not be construed to take away the
power Of courts of equity over awards.
This chapter does not apply to awards
unless they are made under its provisions,
and it is expressly provided that although
made under Its provisions the power OF
courts OF equity over them shall not be
taken away. Courts of equity have
always had and exercised Jurisdiction to
interfere to set aside awards for fraud, &C.
cident, partiality, misconduct, or mistake
Of the arbitrators. 2 story's Eq. Jr. Sec.
145l; 1853.
The bill in this case does not charge
any fraud, accident or mistake. There
is an effort in the bill 10 charge Mcclure,
oneof the arbitrators, with partially and
misconduct.
The bill, after stating that the city OF
Wheeling appointed John Mcclure as one
Of the arbitrators charges; "Before ap.
pointing John Mcclure as such arbitrator
the Council of the city OF Wheeling knew
that he had openly declared, that in his
opinion the property Of the plaintiff, ex-
elusive oil the franchises OF the
charter and the dividends and profits
accruing to the stockholders, was
not worth exceeding the sum of fifty
thousand dollars" Then, alter making
some statements in reference to the max
ing Of the award and denying its suffl.
cheney when made, bill proceeds: "And
the said plaintiff further insists that the
said John Mcclure, byreason OF his having
formed and expressed the deliberate opin.
ion before mentioned as to the value Of
the property Of the company, before his
appointment as such arbitrator was utter
ly incompetent as an arbitrator, and any
award'signed by him was utterly null and
void" oN
"The plaintiff alleges and charges to be
true, that throughout the investigation
and deliberations Of the arbitrators, the
said John Mcclure acted as the adviser
and partisan Of the city OF Wheeling, In
the procurement OF testimony, the exami.
nation and cross examination Of witnesses,
the expression Of his opinion as TO the
value Of different portions OF the property
OF the plaintiff, and the declaration of his
unwillingness to hear or believe the opin-
ions and judgments Of the plaintiffs wit.
nesses as to the cash value OF its property
before said witnesses were sworn or exam.
ined, for the reason that the witnesses
were stockholders and directors OF the
Company"
In respect to the aveTment that Mcclure
before his appointment as arbitrator had
expressed his opinion as To the value of
the property, and that the Council Of the
city of Wheeling knew it, nothing need be
said, because 1t Is admitted that there is
no evidence in the record 10 show that il
any such opinion had been expressed by
him, the City Council or any member Of
1t, knew any thing lit, Morse on Arbi-
tration and Award, 5S5; Conrad vs.. Mas.
sasOit Ins. Co., 4 Allen 90.
The charge that Throughout the inves.
tigation and deliberations Of the Srbitra-
tors, the sald John Mcclure acted as the
adviser and partisan Of the city Of Wheel.
Ing, in the procurement ot testimony"
&c, Is more serious.
Like Jurors empanneled for the trial
Of cause, or Judges on the bench, ar.
bitrators are invested as 10 the cause
submitted TO them with judicial iunc-
tions, the righttul discharge Of which
calls for and presuppOses the most abso.
lutte impartiality. And q Judge, juror,
or arbitrator, should not only possess the
quality oI lmpartlality In fact, and have
the conscience Of it In the given case; he
should moreover sedulously shun all the
possibilities even OF insensible bias. And
though, therefore, arbltrators be nomi.
mated, one by each party, still they are
not TO consider themselves as represent
ing separate parties, and the advocates
of opposite sides; but as called on to exc.
cute a joint trust, and to look impartlally
at the true merits Of the matter submit.
ted to their judgment. Under no circum.
stances can an arbitrator become an ad-
vOcatc. He is always bound to exercise
the highest degree Of judicial impartial.
ty, without the slightest regard to the
manner in which the charge has been
placed upon him-Morse on Arbitration
and award, p. 100, l07; Rupell on Arbi.
tration, p. 2O5; Strong VS.. Strong, 9 Cush.
ing, $50.
An arbitrator must not act as the agent
Of the party appointing him-Morse on Ar.
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