Year: 1867

Editor of the Register:


The Conservative newspaper published
in Clarksburg, in one of its issues pub
lished several weeks since, in referring
to the course of Judge Hindman, in ad-
herring to the decision of the Supreme
Court of the United States, instead of
the Court of Appeals of this State, on
the lawyers test oath question, presented
a query, whether Judge of Circuit
Court could sit in the Court of Appeals
on account ofthephysical disability only
of Judge of the Court of Appeals to
sit in that Court, and requested some
gentleman of the legal profession to ex-
anime the question and present his
views thereon to the public.


When the question was presented | re-
garded it as one of great Importance, aud
had hoped that seme gentleman ableI
than myself, weuld have given to the
public his views, but so far have seen
no response to the query of the Conserr'
attire. And as the session of the Cour,
is at hand, present my views, and
ask their publication in your daily issue
so that it may be seen as early as posi-


BILE. ..-, -, .,


The question arises, under the 10th
section of fthe 9th article, page III ofthe
Constitution of this State, which pro,
vides that "when any Judge of the
Court of Appeals is SO situated in re-
gard to any case pending before it, as to
make it improper for him to aid in the
trial of the same, or is under any Other
disability, the remaining Judges may
call to their assistance o Judge of the
Circuit Court, who shall act as Judge
of the Court of Appeals, IN the cases "a
Which such disability relates"


have given the subject calm and
unbiased consideration, and have arriv'
ed at fixed and settled opinion, that q
Circuit Judge has no power, or author
ity under the Constitution or laws OF
the State, to act on the Court of Ap,
peals. unless it is in case in which
there be q legal disability, relating to
one of the Judges, so as to make it inn
proper for him to aid in the trial of the
same, and that no such power is given
merely because Judge of the Court OF
Appeals is physically disabled from sit.
ting in the Court. The words italicized
in the 10th section, Cor is under any
other disability" l presume, have
been regarded as the warrant fol
the practice which seems to prevail
/ for a Judge of Circuit Court to be
called into the Court of Appeals ut any
time, merely because the Judge of that
Court is physically unable to attend
it's sessions, and TO aid in the trial Ol
causes which, if physically able
to sit in the Court, he could properly
hear. But it is most clear that no such
authority is conferred, when the holt
section is considered, for the words alsC
italicized therein, in "the cases t.
which such disability relates" refut'
such an idea. Tho question naturall!
ARISES, when Circuit Judge finds him
self occupying seat upon the bench o.
the Supreme Court Of Appeals, why an
here and what are my dutiesi TX
4 decide these questions he refers TO th'
aforesaid 10TH Section of the Constita
Ition and reads with care to the wore
disability IN the third line, and he ma,
honestly arrive Mt the conclusion tina
! he may be properly there, filing tn
place of Judge who is absent, o.
Account of physical inability to at
TEND. but upon the calling of th,
first cause, the counsel OF one Of tn