Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1891-08-07
,o,,la have been for the Legislature to

| is only mdttci VI = .o-,,
twenty-six days until the regular TER
of this Court comes on, and inert eau
he no serious matter in that snofs ue
Law. At that time there can De no
tronble in getting person to Try 'ne
case. or Judge Campbell may come 40" u
here and sit long enough to regularly
transfer the case to the other side. bu.
instead of that, they want a speciai
term, and yet, II the case went on, YOU
would not probably get through oy tne
beginning OF the regular term. L aui
not obiecting. or striving to bring ABOUT
a delay in this case" -,
Mr.. Sommervile-Then, what is all
this about? ...,
Captain Duvernor-I am oolecting
simply because Judge PAUL has no
authority to act, and you can't show me
a line SO authorizing him.
Mr.. Sommerville-I have shown you
line.
CAPTAIN Dovener-Where is 1t?
Mr.. SommerviIle-I have shown 1t. Ii
YOU are not delaying this case, where IS
the harm to your side?
CAPTAIN Dovener-What is the harm
to my side? There would be no trouble
in calling in three reputable citizens 10
try il. as far as charm" is concerned,
but where is the authority? We want
to try this case according to law. IL
isn't question of delay. There is an
other improperly about this thing. l
don't know whether Judge Campbell
eouested you to do this or not. | know
that Judge Campbell opened this case
and partly heard it, and there has been
no attempt on the part VI
| the authorities to prevent an
early hearing. 1 am satisfied that
haste would have been made II the case
had been allowed to take its regular
course. Counsel has said that Judge
Campbell may not be able to sit on the
bench until October. Then, let some
other Judge come here. or let an attor-
ney be selected by agreement, and have
him hear the case. What do we all
gain, even if Judge PAUL has the right
TO hear 1t? If he has the right, and
wants to do it, all right, but l claim
that he has not the right to take this
matter up"
Captain Dovener was followed by
Prosecuting Attorney Howard, for the
State, VINO Sal0:-
"'Either or both of the Judges OF the
Circuit Court may hold any regular,
special or adjourned term Of any Court
therein, etc.
Now, that authority means that
either or both of the Judges of the Cir
cult Court may hold. l take 1t that
meeting of Part One is meeting OF the
Circuit Court, and likewise with Part
Two. There are not two Courts, but
one Court, with two Judges. | take it,
under this statute, il your honor would
order either an adjourned or special
term, either Judge could act. The OBJ
ject OF the statute is TO have either
Judge act, and term being called,
either Judge could act. The Act has
evidently clothed the Judges with equal
power. The statute provides that the
Judges may apportion the business, and
they do that, but even then they transfer
and retransfer. l don't think can
make it more plain.
81 don't think Sec. s bears on 1t at
all. Reading 1t. That is evidently
provision to prevent anything like
hiatus in the business of the Court.
Now, suppose Judge Campbell should
remain in his present condition until
the end of his term? No power on
earth could compel him to resign.
Would it be said that his case must be
hung up until a new Judge should COM
in? That certainly was 9St the pure snd
any such condition must Inevitably 20
totally at variance with the spirit OF the
law. It seems to me that Sec. covers
il as we'll as any other case which might
arise in this Court, in which there might
arise any unreasonable delay-such
delay which, II longer continued, wouid
amount practically to denial OF JUS
tice. My construction OF the Act. 1t is
true. is not backed up by decision, but
IL is backed up by the practice OF your
Honor's predecessors.
Captain Dovener then arose to open
the argument on behalf OF the State,
taking the position, that the Court had
no authority to take up the case, ana
secondly, that if it had, it was not ex-
Incident to do so. He said:
81 can't see that under any circum-
stances, as a question of law particu-
larly applicable to this case, that Sec.
can be made to apply to all. Sec.
saws what terms Judge may hold-re-
guIar or special. That certainly does
not help the other side out OF their dill
emma. The mere fact that the nrst
part of the section says that Judge
may hold adjourned or special terms,
simply defines the duties OF Judge,
and furnishes no information as to
be done in case heard fully on one
side, and on proposition to hold
special term by another Judge, on an
other side, when a motion has been
half-heard.
1.-THE next clause bears on the subject
of when and what Judges may sit to-
gether. 1t says they may sit together
for the purpose of arranging business,
and it seems to me that that language
will not apply in this case. When the
business is arranged, it must be done by
both Judges acting together. You may
arrange that certain cases may go on
one side, and certain other cases go on
the other; or, generally that all the odd
numbered cases may go to one Judge
and all the even numbers TO another, or
that the criminal cases may 90 to one
Part, and that the civil business may be
divided between both parts. Such an
arrangement has to be made by the two
Judges, and not by one Judge-not by
either Judge. The following section
says they shall not try cases sitting to-
gether So we have no authority yet.
cit is said they may not do any bus
ness sitting together, but must hold
Court separately. That doesn't furnish
any information. Neither does the
designation of the Court, nor the ''pow-
er or authority" Of the Court. In other