The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1894-09-12
In tho County Commissioners. is
Judge Paulrs DscisIon.
SQUIRE lRElE SCORES 4 POINT
In tho Progress OF the EnOrs to PIrO
him, aad tho Decision Nus. also
Enec. tho caseor Constable ADDER.
son. set for Friday-The Substance
of the Decision Identical with that
in tho Squire Davis Case.

hibition sworn out ny squire 1s0'g"
Arkle 10 prevent the county commits
sioners from trying him and removing
him from Office on the ground Of lack Of
Jurisdiction. The motion on behalf oil
the board TO dissolve the writ Is dis
, missed. This was not surprise, Judge
PAUL. having decided in the same way
In the former similar proceedings Of the
late Squire W. II. Davis. That case
was taken to the supreme court Of APP
peals,' but no decision was ever reached,
Davis diving before the case was finished.
The matter Is an importantone 10 every
county In the state, and will be again
appealed.
In the meantime, however, the de-
eiSlou must have It's effect on tho case
Of Constable John Anderson, against
whom charges are also pending. ana
whose hearing has been set for FRIDAY
ncxt. What the outcome VIII De can
not BIO coniectured.
Tho opinion on which the order 10
based 10 substantially the came as IN
the Davis case, and 1t is given PRACTICAL
ly In full below:
TuE OPINION.
George ArEer ~ he board Of Commissioner Of Ohio
County, IN Prohibition
George Arkle, the petitioner, who 10
Justice Of the peace for Clay district,
In Ohio county, seeks by this proceed
ing TO restrain the board OF commission
ems from assuming jurisdiction in the
matter OF the charges Of official miscon-
duct, preferred against him by John X.
Handlun aud others, on the ground that
section Z Of chapter OF the code. under
Which the charges were framed. In so
far as II attempts to confer jurisdiction
upon the board OF commissioners to re-
move justice OF the peace from Office
for official misconduct, is in conflict
with section "a Of article s OF the con-
stitution, and therefore void.
Section OF article 4 OF tho constitu-
tion having provided that AL officers
elected or appointed under this consii-
tuition may, unless III cases herein other
wise provided for, be removed for old
cial misconduct, Incompetence, neglect
OF duty or gross immortality, in such
manner as nav be prescribed by goner-
alIaws," the legislature OF February "a,
1882, with the view OF carrying the pro.
vision into effect. passed. section OF
chapter Z aforesaid, the frat part OF
which reads: 'Such removal
shall be. in case OF tho clerk
Of the county court, justice Of the peace
or constable, By tho county court"
There could DO no question, 1t seems
TO me, MS to the constitutionality Of the
section un,lor consideration except for
the limitation imposed upon tho pow
ers OF tho legislature with respect to
county courts. This provision. alter
conferring on county courts jurisdiction
In matters OF probate, police and fiscal
at,airs and in certain contested election
cases, mona CT which, however, include
the power OF removal from Office, do.
cinras that "such courts may exercise
such other powers, not otd Ju-
dicial nature, rs prescribed by law.
The opinion goes on to say that this
special provision ovorrides the general
one in section 9 OF article 4, and must
therefore be construed as inhibiting the
legislature from designating the county
conrt as tribunal before whom pro.
ceedings for the removal from office OF
county and district officers can be en-.
tertained, except when mot OF a judicial
nature"
Il simply remains to be considered
whether the power Of removal from
Office, rs conferred upon county courts,
is ''ol a judicial nature"
The section under consideration pro-
yidss that tho charges against such
officer shall be reduced to writing and
entered on record by tho court, and n
summons shall be issued by the clerk,
containing q copy OF tho charges and
recurring the officer named therein 10
appear and answer the same upon day
tn be named therein, which summons
NAV be served in the same manner as
summons commencing an action may
be served, aud the service must be made
Mt least five days before the return day
thereof.
II will thus DO seen, continues Judge
PAUL, that the statute contemplates n
trial, informal, It is true. but neverthe.
less u trial in the legal acceptation OF
that term. This involves the hearing
OF the evidence to sustain and disprove
tho charges, the decision OF questions
as to the competency and admissibllity
OF evidence, the construction OF stat
utes and various other questions OF
law.
Itis argued that the evidence must
BIO carefully reviewed. conclusion ar
rived ut and judgment entered in ac-
cordance therewith-none OF which dn-
ties can be performed without the ex-
orcise Of judicial functions. Indeed. 1t
may DO said that nearly every step
taken by the court from the commence
ment 10 tho termination OF the pro-
ceedings Is OF judicial nature.
A large number OF cases arc cited as
sustaining this view. while but two are
found which seem to take another
view, and these two decisions, Judge
PAUL holds, arc contrary TO the great
weight OF authority and common law,
and cannot therefore be followed. For
the foregoing reasons 1t must be held
that section OF chapter OF the code
IN SO far as 1t attempts to confer upon
county courts, Ia term which includes
the board OF county commissioners OF
Ohio county. See chapter Is OF code.
section IL. subsection 49,, authority 10
remove justice OF the peace from OiIicO
for official misconduct IL unconstItu-
tjonal md void. Tho motion OF the
board OF commissioners to discharge
the rule heretofore issued herein, must,
therefore, DO overrulOd.
THE ORDER
Based on those conclusions the ordor
was made, rs follows:
Gtorge LrIl, RI. TN Board Of CoHUiv Commission.
7Iof OiiO eotIAiy. IN Prohibition.
This day cRmo the petitioner, George Ankle, by