The question as to whether the Gas Company might proceed to obtain relief by quo warranto, or information in nature of a quo warranto, made by counsel for the City, does not arise in this case.
This is a proceeding or bill in equity, and as to jurisdiction the only question for this court to determine is, whether or not, in the pleadings and proofs, a proper case is made for relief in a court of equity.
The first point made by the counsel for the Gas Company is, that the case on the pleadings and proofs, is a proper one for relief in equity.
There was a demurrer filed by the City to the bill, for the alleged reason that there is no equity therein. This demurrer is in the answer of .the City, but was never acted on by the court.
When the case was decided it was heard in the bill and papers filed as exhibits, answers of defendants, replications filed, agreements and depositions taken in the cause.
The fourth section of chapter 108 of the Code, p. 559, provides that no award made under the provisions of said chapter shall be set aside, except for errors apparent on its face, unless it appear to have been procured by corruption, mistake, or other undue means, or that there was partiality or misbehavior in the arbitrators, or any of them. But the section shall 4iot be construed to take away the power of courts of equity over awards.
This chapter does not apply to awards, unless they are made under its provisions, and it is expressly provided that although made under its provisions the power of courts of equity over them shall not be taken away.
Courts of equity have always had and exercised jurisdiction to interfere to set aside awards for fraud, accident, partiality, misconduct or mistake of the arbitrators.
2 Story’s Eq. Ju., § 1451-1452.
The bill in this case does not charge any fraud, accident or mistake.
*493There is an effort in the bill to charge McLure, one of the arbitrators, with partiality and misconduct.
The bill, after stating that the city of Wheeling appointed John McLure as one of the arbitrators, charges : “ Before appointing John McLure as such arbitrator, the Council of the city of Wheeling knew that he had openly declared that, in his opinion, the property of the plaintiff, exclusive of the franchises of the charter, and the dividends and profits accruing to the stockholders, was not worth exceeding the sum of fifty thousand dollars.”
Then, after making some statements in reference to the making of the award and denying its efficiency when made, the bill proceeds: “And the said plaintiff further insists that the said John McLure, by reason of his having formed and expressed the deliberate opinion before mentioned, as to the value of the property of the company, before his appointment as such arbitrator, was utterly incompetent as an arbitrator, and any award signed by him was utterly null and void.” * *
“ The plaintiff alleges and charges to be true .that throughout the investigation and deliberations of the arbitrators, the said John McLure acted as the adviser and par tizan of the city of Wheeling, in the procurement of testimony, the examination and cross-examination of witnesses, the express-on of his opinion as to the value of different portions of the property of the plaintiff, and the declaration of his unwillingness to hear or believe the opinions and judgments of the plaintiff's witnesses as to the cash value of its property, before said witnesses were sworn or examined, for the reason that the witnesses were stockholders and directors of the company.”
In respect to the averment that McLure, before his appointment as arbitrator, had expressed his opinion as to the value of the property, and that the Council of the city of Wheeling knew it, nothing need be said, because it is admitted that there is no evidence in the record to show that if any such opinion had been expressed by him, the city Council, or any member of it, knew anything of it.
Morse on Arbitration and Award, 535; Conrad vs. Massasoit Ins. Co., 4 Allen, 20.
The charge that “throughout the investigation and delibera*494tions of the arbitrators, the said John McLure acted as the adviser and partisan of the city of Wheeling, in the procurement of testimony,” &c., is more serious.
Like jurors empanelled for the trial ©f a cause, or judges on the bench, arbitrators are invested, as to the case submitted to them, with judicial functions, the rightful discharge of which calls for, and presupposes the most absolute impartiality. And a judge, juror or arbitrator, should not only possess the quality of impartiality in fact, and have the conscience of it in the given case; he should moreover sedulously shun all the possibilities even of insensible bias. And though therefore, arbitrators be nominated, one by each party, still they are not to consider themselves as representing separate parties, and the advocates of opposite sides, but as called in to execute a joint trust, and to look impartially at the true merits of the matter submitted to their judgment. Under no circustances can an arbitrator become an advocate. He is always bound to exercise the highest degree of judicial Jmpar-tiality, without the slightest regard to the manner in which the charge has been placed upon him.
Morse on Arbitration and Award, p. 106, 107; Russell on Arbitration, p. 205; Strong vs. Strong, 9 Cushing 560.
An arbitrator must not act as' the agent'of the party appointing him.
Morse on Arbitration and Award, p. 1Q7.
Featherstone vs. Cooper, 9 Ves. 67.
Colcraft vs. Roebuch, 1 Ves. Jr. 226.
If the bill had charged that McLure acted as the agent of the City during the arbitration, the charge would be sufficient on the face of the bill to give the court jurisdiction.
But the charge is that he acted as the “adviser and partisan of the city of Wheeling,” and this would seem to be a more serious charge than it would be to charge that he acted as agent.
This is therefore a sufficient charge of partiality and misconduct, to give a court of equity jurisdiction of the case to set aside the award, if the charge is true.
The answers deny this allegation of the bill, and its truth must depend on the proofs in the case.
*495There is no evidence to show that during the arbitration, McLure acted as the adviser of the city of Wheeling.
■ Mr. McLure, in his testimony says: that he, “on the part of the City, went on, through the sanction of Mr. Woods, and by an agreement of one of our rules, got all the facts that it was possible to get at home and abroad, and had them presented before us, from which, and in connection with our own knowledge, we made up our award.”
Mr. Eoff, in his testimony, in answer to the question, “ during the progress of the arbitration, who attended mainly to the interests of the City, in collecting up and arranging testimony, procuring the attendance of witnesses, and examining and cross-examining them”? said “Mr. John McLure, with the occasional assistance of Mr. Jeffers, but Mr. McLure principally, notwithstanding my repeated remonstrance that he was going beyond the line of his duty in thus acting, making himself thereby a partisan rather than an arbitrator, juror or judge, and protesting that I would not act in the same manner.”
O’Brien in his testimony states, that McLure applied to him to become his assistant to “ get up evidence in behalf of the City, help him arrange it,” &c., which O’Brien says he refused to do.
The evidence therefore, shows very clearly, that McLure misconceived his duty as an arbitrator, and acted in behalf of the City in getting up evidence to be used before the arbitrators.
There is nothing in the ‘evidence to show partiality or corruption, or improper motives in the arbitrator, McLure.
It is not alone the fact, but the aspect of perfect fairness, _ which must be preserved, and an arbitrator cannot be too careful as to his conduct, holding this end in view. It is not his own consciousness of -rigid justice that supports his determination of the controversy. It is not his conscientious intent to be honest, nor his conviction in his own mind that he is so, that can suffice. It is his external actions that will be subjected to scrutiny; and if these do not satisfactorily bear the test, the award will fall.
Morse on Arbitration and Award, p. 534; Strong vs. Strong, 9 Cushing 560.
*496There may be ample misconduct in a legal sense to make the court set aside an award, even where there is no ground for imputing the slightest improper motives to the arbitrators.
Morse on Arbitration and Award, p. 534.
If the case stood alone on the evidence of the legal misconduct of McLure, the award would have to be set aside.
Walker vs. Frobisher, 6 Ves. 70.
But upon looking into the record to see what the evidence is in respect'to the alleged misconduct of McLure, it appears that Eoff, the arbitrator appointed by the Gas Company, is a stockholder in the said company and interested in the result of the arbitration. And that he was appointed arbitrator because he was a stockholder and because it was understood that McLure was to be appointed by the City. Though it does not directly appear, yet it is plainly inferable from the testimony in the record that Eoff was appointed by the Gas Company to watch McLure.
In the case of Fox vs. Hazelton, 10 Pickering, 277, it is said by the court that if parties really intend to have their rights decided by impartial judges they are entitled to insist that all shall be impartial. But if they are content to submit questions in controversy to those who are known to have formed and expressed opinions upon the subject matter, or who are known to have partialities and prejudices for or against the respective parties, an award made by such arbitrators is binding. And it is not unfrequent in practice for each party to select a friend known to have formed and expressed opinions upon the subject, and preferences for the parties respectively trusting that these opposite prejudices will balance each other, especially with the aid of an impartial umpire. Without commending the expediency of such references, the court can entertain no doubt of the validity of an award made by such referees, nor could the parties be heard to impeach the award in this case under the circumstances of the appointment and conduct of the arbitrators.
Especially should this'be so, when, so far as the record discloses, the amount of the award seems to be fair.
The case was not made up with a view to show the value of the property of the Gas Company, but there is some evi*497dence in the record as to the value of some items embraced in the award and in every instance in which I have compared the value fixed in the award with the evidence, the value fixed is found to be fully as high as is warranted by the evidence.
Upon the whole case, therefore, the award ought not to be disturbed.
There is no other ground of equity jurisdiction set up in the bill, unless the court should be of opinion to set the award aside, hut as this court fails to see any good cause to set the award aside, the other questions cannot be considered.
The question as to the sufficiency or insufficiency of the .award on account of but two of the arbitrators signing it, can-mot be determined by this court for want of jurisdiction.
The decree complained of will have to be affirmed with damages and costs.
The other judges concurred..Decree akkirmed.