Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1894-09-05
ARGUMENTS Heard
By JUDGE PAUL. IN TIE PROHIBITION
PROCEEDINGS
Against the Board Of County Commissioners, in
the Arkls Cass Some Interesting Points
Brought Out

were mdQo Oy Luo OPUOSiA6 SouASS'i
| yesterday afternoon, and the matter
submitted to the Judge for his decision
/ The time for hearing the argument;
was set for ten o'clock, but the Prose
cutting Attorney was engaged In the
Criminal Court at that hour.
Prosecuting Attorney Howard opened
the argument for the Board of Commi s
sloners of Ohio County. He began BY
SAYING the matter which the Judge wa:
supposed to decide, hung almost ex
clusively upon the question OF whethre
the trial of Justice for misconduct 10
office, is judicial function. What is
contem plated in the Constitution OF the
State, as to judicial functions, is that
in the judiciary is vested the power TO
| hear and determine questions OF right
or wrong between parties. The right
which is vested in a Justice, by Writ ue
of his election, is subordinate 10 the
power of removal. The proceeding
against Justice Ankle, was rather in the
nature of an impeachment. The right
to try the higher officials OF the State
is vested not In the judiciary but in the
Legislature. The power TO remove dis
trict officers was vested In the County
Court under the constitution OF 1872,
and is the same now, by virtue OF re-
enactment Of the law.
Mr.. Towards argument was very
short He stated that brief had been
prepared for submission TO the Court OF
Appeals in the Davis case, in which the
same points Of law were involved
as in the Ankle case, and he
asked leave to file it. The brief, after
giving a concise history OF the Davis
case, assumes that the point OF conten-
ton is that the removal OF county or
district officers involves judicial powers;
that the County Courts are prohibited
from assuming judicial functions; ard
that the statue conferriDg upon such
Courts Jurisdiction in the matter OF re-
movals, is therefore imperative and
void. Section 6, Art f, states In sub
stance that all officers elected or ap-
pointed under the Constitution may be
removed from Office "in such manner as
may be prescribed by general laws. !"
Sec. 7, Art. Z, under which it is alleged
that the Board has jurisdiction, Is based
on Section 6, and is In part a transcript
1t was intended TO carry into effect that
provision OF the Constitution. The
Legislature has a right to give the
authority, and nothing is said In this
connection regarding Courts.
1t is conceded in the brief that Ar IT,
Gle 5 prevents one department from ex-
ercisiug powers onging to other de-
partments of the State government.
Authorities are quoted to show that re-
moyals from office are not judicial in
their nature, in the sense contemplated
by the trainers of the Constitution. 1t
is argued that since State officers are
tried by the Legislature, the Senate and
House OF Delegates act judically In the
same sense that County Courts do, when
proceeding against district officers.
q Col. White replied at length to the
argument OF Mr.. Howard. He referred
to decisions in several well known cases
He took up the case OF Mackin VS..
County Court of Taylor county,ln which
the point involved was whether the
valuation of property for assessment
purposes was ministerial or judicial
act. The Court of Appeals held that
there was nothing judicial about 1t, and
declared the act OF the Legislature CIV
lug the Circuit Court the right TO try
appeal questions in such cases, uncon-
stitutional.
In the appeal of the W., B. e T. Ry.
Co., from a decision rendered by Judge
PAUL 10 the Circuit Court of Ohio coun-
ty, the Supreme Court reversed It's de-
cision 10 the Mackin case. The first
decision was rendered on November
23d, and the second on the cath OF
March following. Even admitting that
the Court was correct in its position in
the w. b. 81 T. case, Col. White held
that the decision had no bearing in the
Ankle case. All the decisions quoted
by him agreed ia the position that If
the act is legislative, the Court has no
jurisdiction.
Col. White said that If there is any
tribunal on earth TO try county officer
for malfeasance in Office, it is the
County Court, but he held that the
County Court had no Jurisdiction, and
that the County Court aud Board OF
Commissioners were two very dlsslmilar
bodies. The Board OF ommissioners
has no powers except those expressly
given by statute. The Board is seek
ing 10 try Justice Arkle for malfeasance
10 Office, by virtue OF Section z,
Chapter Z, OF the Code. That act
passed the Legislature in 1882, aud
seeks to put in operation the provisions
of the Constitution of 1850. which vests
the power to remove county officers in
the County Court. The County Court
cannot mean the Board of Commission
ers. Col. White reviewed the history Of
legislation on this point, In support OF
his position.
The constitution Of 1872 provides for
a County Court 10 hold six sessions an
nually, four for trials and other bust
ness, and TWO for police and fiscal mat
tiers. 10 1875 al act was passed giving
this Court the power to remove county
officers for cause. Section Z, chapter
of the Code, would be constitutional
under that Constitution, but not under
the amended Constitutional 1850.
Granting for the sake of argument,
that the section mentioned is constitu-
tional, the Board of Commissioners do
not derive any authority from 1t. The
Constitution of 1872 gave the Legislature
the power to reform and modify County
Courts aud, in lieu thereof, to create a
new tribunal, one for judicial
and the other for police
and fiscal duties. Ohio county
adopted this system. An act of Dscem-
Der 2lst, 1872, provides for Judge Of
the County Court and for Board OF
Commissioners. The powers and duties
IL Co, lie inr q