Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1886-05-17
MR.. RUssElL's ARGUMENT
Delivered Saturday Afternoon, in
the Circuit Court,
On the Motion to Dismiss the Police
and Fire Board Peti-
ton.

Because of lack of space in our Sun
dsy issue, but q brief mention was made OF
the argument of Mr.. q. M. Russell, in the
Circui. Court Saturday afternoon, on the
motion to dismiss the petition OF J. b
Sheppard and others praying that the
ordinance creating the Police and Fire
Board might be revoked and annulled.
This morning we present more extended
outline of the able attorneys remarks.
Mr.. Russell began by saying the only
question before His Honor for decision
was the constitutionslity Of the act of 1915.
Gentlemen upon the other side had taken
considerable comfort from the fact that
very few cases had been cited by Mr..
Caldwell bearing upon the issue. de
would 90 further, and say that not single
case had been cited BY anyone containing
such an act as was under discussion.
There was no precedent tor acting under
any such statute no precedent conld be
found for enGcting any such statute. II
had been assumed, but not expressly
stated, that this proceeding could not 60 on
except under the Act of 1875. He con.
CURED in this; the proceeding must stand
or fall by that act. He referred to the con
cessions made by counsel on the other side,
on Friday, that if the title OF the act did
not fairly give notice OF its object, the act
would be void, and starting with that as
his premise, he proceeded to cite and ex'
plain number of cases, and said ne was
aslonished that gentlemen, who had come
into Court with something of a smile at the
unimportsnce OF the questions raised by the
city, should have finally relreated 10 the
shelter OF the word clearly" which, he
held, was OF no especial force in determin-
ing what should be contained in the title
of q law. He referred to the cases cited
by Judge Melvin, selected so as to give the
Court the benefit of decisions by the Su'
preme Court of the United States, and BY
the Supreme Courts of Virginia and of our
own State, and said His Honor would at
once perceive that they had no reference to
the question raised. He referred to each
of these cases, and explained them.
Mr. Russell said that since the days OF
King Alfred no such act had ever been
placed on q statute book. and hence 1t was
futile to attempt to cite case exactly
similar. The nearest approach to the case
he could find was in Oath New York, the
cause arising from an act, the title oil
which stated that it prohibited the manu-
facture OF cigars in tenement houses, while
the act itself prohibited the manufacture OF
cigars in dwelling houses" which, OF
course included tenement houses The
act went so much further than the title in
dcated that il was held unconstitutional.
Proceeding, he referred TO the claim OF
counsel on The other side that the words
IAN act relating to certain ordinances"
meant that it referred TO all ordinances,
aud said by the same logic an act entitled
AN act authorizing the establishment OF
warehouses in certain cities and towns,
meant that all citizens and towns in the
State were Included. He proceeded 10
argue that the word certain" in the title,
and the word ALI in the body of the act,
could not be reconciled; no ono would have
the idea suggested, by reading the title, that
the act related to all ordinances passed or
which might hereafter be passed. on the
contrary 1t would indicate that the statute
was not general but related TO but single
class of municipal laws.
Counsel had claimed that the object OF
the act was to regulate practice in courts
OF justice; if that were true, the title ot the
act utterly failed to express what the gen
tlemen on the other side lind in it, and in
explaining it, The other side must newt
ably explain themselves out of court. AS
gentlemen on the other side had taken the
liberty OF saying what was the object Of the
act, be would do likewise. He would, if
he could have the act before him without
it's title, say it was an act to authorize the
Circuit Courts to determine in a summary
manner whether ordinances OF cities, towns
and villages we're made contrary to law,
and if 80, to snnul the same.
He said there was another reason for
not going forward under this act. II had
been the glory Of American courts that
they had never reached after jurisdiction,
but had been content TO exercise their
functions within clearly defined constitu.
tional limits, and he had 10 doubt, but
that when an opportunity was given this
court TO extend its jurisdiction upon doubt
ful grounds that it would be promptly re.
iected.
He referred to the constitutional provi-
sions limiting the jurisdiction Of the
courts, and said that while the closing
clause Of the section was very general
and sweeping, it could hardly grant
other than judicial powers. He said
in the whole Constitution there was not a
word giving to the Court jurisdiction unless
there was ease il could mol make de-
cigion on the abstract proposition of wheth.
er or not Law was unconstitutional the
jurisdiction Of the Court must be limited to
actions.
The Court asked about the appointment
of receivers. &c to which Mr. Russell re.
sponded that that was not an exercise of
judicial power; it was purely ministerial
Judge Melvin asked Mr.. Russell N cant
that there must always be q technical case
He was answered in the affirmative, yaen
Judge Melvin asked what wog!d be done
in matters Of the appointment of trustees,
guardians DC, and whether he would tx.
cIude all matters Of petition. To this Mr.
Russell said that all those matters were
cases; q case might originate upon pefi-
ton as we'll ssin other ways
Referring to the claim held By the gen.
tlemen on the other ride, that the Court |
was in some matters supsEior to the Legis
lature, be held that it was simply an equal
and CO ordinate branch of the government
legislative only 20 far az was necesss.y TO /
determine what the law is, in eases brought
before IT. it Uas the province of the Leeisla-
ture to cay what the law shall be. The
trouble here was that the Court, in ad-
vance Of any possible case, had been called
lpon TO annul-to repeal-a law. He re-.
erred to the probable Judgment to be given
~ the Coast. and inquired who would be
bound by il. II it should be decided con.
What good would il doP
Couldn't it be questioned again2 Proessd.
ng he said that until cculsei on the other
q hu aaA II