Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1892-06-21

The Dslbruggs Cass-Important Decision COncein
ing the Jury Commission Law-OOncluding
Argument in the Case Of the OOnstitu-
tonality of the Mining Law.

In Delbrugge VS.. McNicholl, yester-
day, Mr.. O'Keefe called up his petition
for writ OF error and asked the Court TO
expedite the case. Judge Brannon
stated that he had looked at the record,
but failed to find in it any final lndg-
ment upon which a writ Of error could
be based. The case is practically out
Of Court unless some positive order
be made by the Court below. The case
was set by the petitioners for hearing
on Saturday, but as the proceeding was
somewhat irregular nothing was done
on the part Of McNicholls counsel ex-
cept as stated above. 1t will be neces-
sary to make the record complete before
going into the Supreme Court again by
Delbrugge.
THE NEW JURY LAW IN QUESTION.
The case OF the State VS.. Thomas
Scott on a writ of errar to the Judg-
ment Of the Circuit Court Of Cabell
county was decided Saturday. The
judgment of the Court below, which
was a sentence in the penitentiary for
five years was affirmed. The principal
ground of error was that the jury was
not properly chosen under the new jury
law, and the syllabus Of the opinion
which was handed down by Judge
Lucas is here appended, and will be
found to be of general interest to the
lawyers throughout the State:
sALLABUs.
/. The exposition Of the act Of the Legis-
lature passed on the 9th day Of February,
1891, in relation to petit jurors and en-
braced IN the Code (lS9D as chapter Ito.
page 773, and to be found in the acts OF
1891, as chapter ~, page 90, made by this
Court in the case of the State v. Mounts,
decided September 10, 1891, is approved
and reafirmed.
2 In constituting a statute, we are not at
liberty. where the language is free from
ambiguity, to substitute one word Tor an
other, and thereby change and reverse the
express language of che Act; yet II is set
tied rule of construction 70 cOnstrue words
used by the Legislature in such manner as
will advance the intention, prevent lncon-
venience, and avoid conflict with settled
policy.
30 The word Vacancy where used in a
statute, does not necessarily pre-suppOse
former incumbent Of an office; II ttly aud
aptly describes the condition Of an Office
newly created, and never filled by any pre-
viOus incumbent
T. Under the Jury law above mentioned,
and protesting 10 act in pursuance Thereon,
the Circuit Court Of Cabell county APP
pointed Jury Commissioners on the 10Th or
June, 1891, but the order specifically set
out that the terms Of the respective APP
pointees should correspond with the uneX-
pired terms commencing June the lst, 1881.
This appointment will be construed as IN
tended TO ill vacancy, and as in conform
ity 10 and fully authorized by the Jury Act;
and the Commissioners so appointed were
legitimately in office during the said unex-
pired terms and their acts are entitled to
full faith and credit.
3. Where the evidence sufficiently tends
TO show that the prisoner induced chance
quarrel, and concluded it by advancing up
on his adversary striking him q blow with
a deadly weapon, with which he has not pre-
viously armed himself it is for the jury to
decide upon the character Of the prOyoca-
ton and whether the offence is manslaught-
err, or murder in the second degree, and II
the record does not disclose any improper
instruction upon the subject, which we
can review, we will not reverse the de-
cision of the Circuit Court, over rulinga
motion to set aside the verdict, and grant
new trial.
THE CONsTITUTIONALITY OF TIE NEW
MINING LAW.
The argument in the case of the Peel
Splint Coal Company vs.. the State OF
West Virginia was resumed in the
Supreme Court yesterday. The case has
attracted the attention of coal operators
all over the State as we'll as the miners,
although the interest in the outcome
seems to be more among the operators
in the southern end of the State than in
this section. The same may be said Of
the miners in the different sections.
General Watts and Judge Ferguson
are on the side of sustaining the
law, while Malcolm Jackson ard w.
Mollohan appeared for the operators,
upon whose motion the case was brought
into this court.
General Watts and Judge Ferguson
were the patrons of the bill In the
Legislature, and 10 was due
TO their earnest work that the
bill became law and they
are in measure defending their judg-
ment, as lawmakers. The case was
decided at the spring term against the
coal operators, but upon petition a re-
hearing was granted, and the argu-
ments were heard Saturday and Mon
day.
Malcolm Jackson made an excellent
argument in behalf Of the position taken
by the operators on Saturday last, and
the REGISTER regrets not being able to
secure a synopsis of the argument
Yesterday Judge Ferguson and Gen.
ersl Watts made their arguments for
the miners, and the REGISTER is en-
abled to present a synopsis of General
Watts speech.
General Watts said in opening his ar
gument, that it was not question
whether the laws were reasonable, ar
bitrary or despotic, il within the police
power of the Legislature. He then
proceeded to argue and to quote from
numerous decisions as to what consti-
tutes police jurisdiction. He quoted
from the opinions of Chief Justice
Chase in the license tax case, Wallace,
1863: from Chief Justice Waite in Mum
VS.. H., "a q. s., 1914; State VS.. Dent, 25
w. Va, 21. He then said as the coun-
sci for the coal operators had chosen to