(dissenting) :
Robert W. Eastham, petitioner, being in custody of the sheriff of Tucker Oounty on accusation of the felonious killing of one Frank E. Thompson, the grand jury, at the June term of the circuit court of said county, after investigating the charge, returned an indictment for manslaughter. The prosecuting attorney, being of the opinion that the prisoner should be indicted for a higher offense, with consent of the presiding judge, entered a nolle pros-equi. The prisoner thereupon moved his discharge or admission to bail. Both motions were over-ruled. The judge directed the drawing and summoning of another grand jury for the purpose of considering the matter at an adjourned day of the term. This grand jury being duly summoned and impaneled, the judge charged them at some length to the effect that, if a homicide was shown, the jury should return an indictment for murder, and leave the degree of the offense committed to be determined by the petit jury, contrary to section 1, chapter 144, Code. Homicide was admitted, but claimed to have been justifiable. Before the jury had reached a conclusion, and while halting between two opinions undoubtedly occasioned by the erroneous charge of the judge, he, instead of correcting his error, unceremoniously discharged them as a disagreeing jury. He immediately ordered a third grand jury to be drawn, and summoned to a future day of the term, and one Haller — not a regular deputy — was'appointed at his instance to assist in summoning the same. *624Oil the return day fifteen of the grand jurors appeared, and the judge proceeded to examine them on their voir dire, and accepted such as were satisfactory, and rejected such others, five in number, though legally qualified grand jurors, who, for some reason not disclosed by the record, and known only to the judge, were not satisfactory to him. He then caused an order to be entered directing the sheriff to summon six others not drawn from the jury box, and yet, as shown by his answer, he did not. permit the sheriff or one of his deputies to execute this order, but orally commissioned said Haller to execute the same. Th.e jurors summoned were, acceptable. Having had them duly sworn, he then proceeded to deliver a lengthy, argumentative charge, which was to the effect that, if a homicide was established by the evidence produced before them by the State, it was their duty, without calling for other witnesses or further investigation, to return an indictment for murder, and allow the petit jury to determine the degree of the offense committed. He then placed the alleged grand jury in charge of the sheriff, and would not permit them to separate or communicate with any one until they returned an indictment for murder, and received the thanks of the judge and their discharge. The judge admits the truth of this statement, in substance, as set forth, but justifies his course on the ground that it was necessary to obtain an impartial grand jury and prevent it from being ■ unduly influenced by outside pressure. It is manifest, from this that an impartial grand jury meant one that would find an indictment for murder, in accordance with the evident desire of the judge, as shown by his several instructions to the successive grand juries. That the judge, either through lack of experience or unusual zeal, Avas led to commit numerous errors, harmless or prejudicial, cannot be denied; nor is it our place to ascertain Avhether they Avere justifiable, under the present application.
The contention of the respondent that the clause of sfection 1, chapter 110, Code, is unconstitutional, in so far as it authorizes a rule to sIioav cause to be issued by a judge of this Oourt. in vacation, is wholly untenable. The legislature is invested with the poAver to regulate the practice in courts of justice, and has authority to prescribe in what manner proceedings in prohibition shall be instituted. It *625might provide that it be done by notice, or by summons issued by the clerk, or by rule. There is nothing in the Constitution that prevents the legislature from imposing-on the members of this Court the duty of examining the petion and awarding the rule. In furtherance of the jurisdiction of this Court during its vacation the power had to be lodged somewhere; otherwise the act sought to be prohibited might be accomplished before the court could be convened, and the writ would be too late to be effective. Following the analogy of appeals, the legislature imposed the duty on a single judge until the court should meet in term, when the object of the rule ceases, and the matter is wholly in the power of the court to abate it, renew it if faulty, or award the prohibition. Section 6, Art. VIII, Const., does not militate against this conclusion, for that is not. a grant of, but a restriction on, the authority of the court or a judge thereof to grant appeals, and is to this extent, a limitation on the power of the legislature to regulate the practice in such cases. The awarding of a temporary rule in prohibition being a matter that, affects the remedy, but. in no wise determines the rights of the parties, the legislature has absolute control thereof. The real question presented at this time for our consideration is as to whether the judge was guilty of such usurpation or abuse of power as renders the indictment void, and therefore no indictment, but a nullity. If, in the commission of the various errors complained of, lie did not exceed his jurisdiction or legitimate powers, prohibition will not lie; otherwise it is the mandatory remedy. Nor is the question of adequacy or inadequacy of remedy involved, as section 1, chapter 110, Code, makes it imperative, as a matter of right, in all cases of usurpation of jurisdiction or excess of legitimate powers, notwithstanding the existence of other remedies. The statute, in derogation of the common-law, determines, without the aid of judicial interpretation, that in such cases no other remedy, however efficient., is adequate. It has thus taken prohibition out of the extraordinary, and made it the ordinary and proper remedy to restrain all inferior tribunals within the scope of their legitimate powers. Rightly so, for it. affords speedy justice, without sale, denial, or delay, and promptly prevents the abusive, oppressive, or tyrannous use of judicial power in *626response to partisan passion or private malice. JSTor does the statute permit a court, under the pretext of determining its own jurisdiction, either to usurp powers that do not, or refuse powers that do, belong to it. Railway Co. v. Paull, 39 W. Va. 142 (19 S. E. 551). In.such cases the court must always decide right, for it would be monstrous to refuse to allow the most ignorant criminal to plead ignorance of law, and yet accord a high judicial functionary, presumed to be learned in the law, such privilege, in justification of his assumption of illegal powers or authority. The statute countenances no such plea or excuse, and for us to entertain it is to so amend the statute as to make it read, “The writ of prohibition shall lie as a matter of right in all cases of usurpation and abuse of power when the inferior court has not jurisdiction of the subject-matter in controversy, or, having jurisdiction, exceeds its legitimate powers,” except, if, through ignorance of law, and through a desire to promote the supposed ends of justice, the inferior tribunal shall decide it has jurisdiction, or is not exceeding its legitimate powers, then prohibition shall not lie, but only the usual ancient remedies. Such an amendment would render the statute nugatory, and the writ of prohibition anomalous. An inferior tribunal could always justify usurpation and abuse of power through ignorance of law and good motives. It is the duty of this Court to obey, uphold and enforce all legislative enactments within Constitutional limitations, and not, under the pretense of construing such enactments, to usurp for itself or inferior tribunals jurisdiction and powers denied by the constitution and statute, to the impairment and denial of the personal immunities and rights of citizenship. Todo so is not. to adjudicate, but to legislate. Judicial legislation is entirely too common, and is a very unwise, dangerous, and unnecssary experiment, to say the least. Instead of being excused or justified, it should be severely discountenanced. The plain letter of the statute, without, regard to former decisions and precedents, has narrowed the inquiry in this and all similar cases to the mere question of usurpation or abuse of power.
Section 4, Art. III., of the Constitution, provides that, “no person shall be held to answer for treason, felony or other crime not. cognizable by a justice unless on present*627ment of indictment of a grand jury.” Section 39, Art. VI. j provides, “The legislature shall not pass local or special laws in any of the following cases, that is to say for * * * regulating the practice in courts of justice, summoning or impaneling grand or petit juries. * * * The legislature shall provide by general laws for the fore-' going and all other cases for which provision can be made.” By these two provisions, in so far as the subject-matter thereof is concerned, the common-law power of the courts as well as the legislature is restricted or entirely taken away. The grand jury referred to in the first provision is a grand jury summoned and impaneled according to the second. There is and can be no other grand jury recognized by the Constitution or statute law. Such a thing as a cle facto grand jury, not de jure, can have no existence. Both must co-exist to make a legal grand jury, and there can be no other except by usurpation. It is made obligatory on the legislature to provide by general law for the summoning and impaneling of all grand juries, and it is made equally obligatory on the courts to conform strictly to the law so enacted; and it is the assured right of every citizen to require both so to do when his life, liberty, or property is at stake. When a circuit court judge proceeds by illegal methods, though his motives be ever so pure, to obtain indictment against a citizen of the state, he is guilty of usurpation of power in excess of his legitimate jurisdiction as limited and restricted by the provisions aforesaid, to the destruction of such citizen’s rights thereby guarantied. “The grand jury must be selected in the manner prescribed by law. There is no security to the citizen but in a rigid adherence to the legislative will as expressed in the statutes for our general guidance. ” Brown v. State, 9 Neb. 163, (2 N. W. 380). These constitutional restrictions on the common-law powers of the courts are founded on justice, sustained by reason and experience. The English people' were first compelled to adopt them to curb the oppressive conduct of the crown, exercised through its corrupt and corruptible judiciary. They were early added by way of amendment to the Constitution of the United States, and at the formation of this State were made, and have been continued as, a part of the Constitution. Prior to the separation or division they were not a *628part of the Constitution of Virginia. I-lence the decisions relied on to sustain the common-law powers of the judge are not applicable, but are obsolete. Formerly a grand jury was considered merely an accusing body, with which those charged with crime had nothing to do. Under our constitutions, state and national, a grand jury is recognized to be a necessary protection to the citizen against unfounded accusation or unjust pu-osecution, whether it emanates from “the government, or is prompted by partisan passion or private enmity.” Ex parte Bain, 121 U. S. 1 (7 Sup. Ct. 781). And a grand jury under the law as it now exists is defined to be a judicial court of inquiry, summoned and impaneled strictly in accordance with the provisions of the general law enacted for the purpose by the legislature; and any other body of men, however well qualified individually, would be neither a defacto or a de jure grand jury, or entitled to perform the functions thereof. The following decisions fully sustain this proposition, and place it beyond controversy; Ex parte Bain, supra; Finley v. State, 61 Ala. 201; Weston v. State, 63 Ala. 155; O'Brien v. State (Ala.) 8 South 559; People v. Thurston, 5 Cal. 69; People v. Coffman, 24 Cal. 234; Levy v. Wilson, 69 Cal. 105 (10 Pac. 272); Bruner v. Superior, Court, 28 Pac. 341 (92 Cal. 239); State v. Bowman (Iowa), 34 N. W. 767; State v. Clough, 49 Me. 573; State v. Symonds, 36 Me. 128; State v. Lightbody, 38 Me. 200; State v. Fleming, 22 Am. Rep. 552; Clare v. State, 30 Md. 176; Avirett v. State, 76 Md. 510 (25 Atl. 676, 987); Stokes v. State, 24 Miss. 623; State v. McNamara, 3 Nev. 75; Brown v. State, 9 Neb. 163 (2 N. W. 378); State v. Barker (N. C.), 12 S. E. 115; Boyd v. State, (Ala.) 13 South 14; Roe v. State (Ala.) 2 South. 459; Brannean v. People, 3 Utah 488; Doyle v. State, 17 Ohio 224; State v. Easter, 30 Ohio St. 542; Portis v. State, 23 Miss. 578; Box v. State, 34 Miss. 614; Baker v. State, 23 Miss. 243; Miller v. State, 33 Miss. 356; Kohlheimer v. State, 39 Miss. 548; Thompson v. State, 9 Ga. 210. To these many others could be added.
As opposed to these numerous authorities, my worthy associates rely on People v. Petrea, 92 N. Y. 128, as in some degree supporting the untenable position taken by them in this case. The premises on which the cited case is founded are illogical, and hence misleading. The general *629law of New York required separate lists and separate boxes for the grand and petit juries. The legislature enacted a local law for the city of Albany, doing away with separate lists and boxes, and authorizing the selection of grand juries from the petit-jury list. . The court held this law to be unconstitutional, as local legislation, but held that a grand jury selected thereunder was a constitutional grand jury, because “selected under color of law and semblance of legal authority.” ITad this grand jury been selected under the general law from the petit-jury list, it would certainly have been held to be illegal; but the fact that the legislature had authorized it by an illegal enactment is deemed sufficient to render it legal, although forbidden by the general law then in force. That is to say, two wrongs make a right, two negatives make a positive, two noes make a yes. An unconstitutional enactment can give color of law and semblance of legal authority to judicial procedure otherwise illegal, as death can give color to, and is the semblance of, life. The court takes special pains to limit its decision to the point presented, for the reason that the prisoner’s rights were not in any manner interfered with, overlooking the fact that it was settling law, not for the prisoner alone, but for all the citizens of the State, and furnishing a precedent by which the rights of the citizens of all other states might be put in jeopardy. The Constitution guarantees to every person charged with an offense, however guilty, the absolute right to be indicted, tried, and convicted strictly in accordance with law; and this right ought not to be gradually construed and adjudica ted away by a play on the words “defacto,” u de jure,” “col- or of legal authority and semblance of law.” If constitutional guarantees can be frittered away in this manner by the courts, the public will soon learn to construe an angry mob to be a sufficient defacto grand and petit jury, and a rope in-the hands of lawlessness to be sufficient “color of legal authority and semblance of law,” because, forsooth, the victim is guilty, and thereby outlawed. It is contrary to public policy, and highly subversive of governmental integrity, to uphold as valid and legal acts done violative of individual rights in obedience to an invalid enactment of the legislature, contrary to the provision of a valid enactment then in full force and vigor. Such is not the lgw of this *630State, but all acts done derogatory to personal rights in obedian.ee to an unconstitutional enactment are utterly null and void, and the only saving with regard thereto is that no officer shall be held civilly or criminally liable for the lawful exercise or discharge of his duty under an act of the legislature afterwards adjudged to be unconstitutional. Code, c. 147, s. 18. The respondent in the case under consideration admits that he purposely and materially departed from the method provided by the legislature for the selection of grand juries. Justification of his course is sought under his common-law powers. These, as heretofore shown, are clearly abrogated by the constitution and statute enacted as a substitute therefor. But to be more explicit, even to needless repetition, section 10, c. 157, Code, which authorizes the summoning of another grand jury when one has been duly discharged, in case an unforeseen exigency therefor should arise, does not authorize the discharge of one grand jury because it refuses to be governed by the illegal instructions of the judge, and the summoning of another who will quietly submit to such instructions. The right to discharge one for such cause, and summon another in place thereof, necessarily includes the right to discharge and summon successive grand juries, nranj' in number, until one be obtained, subservient to the wishes of the judge. An indictment thus begotten is a legal abortion, which should perish in the sin of travail. Such was not the intention of the legislature, and such abuse of power should not be tolerated. O'Brien v. State, supra.
It was judicial usurpation or abuse of power to place the grand jury in custody of the sheriff. The grand jury is designed to be an independent court of inquiry, selected from among the best citizens of the county; and while nominally under charge of the court, as a constitutional adjunct thereof, the jurors are entitled to the same freedom of person, and to be regarded as of equal integrity and as free from bias and undue influence, as the judge himself. And they would have the same right to suspect and charge undue influence against him as he against them. Sixteen men are no more liable to disregard their solemn oaths, through prejudice, bias, partiality, or undue influence, than one. They are as sixteen to one. The stand-*631arc! by which we should measure other men of equal standing and credibility is our own integrity. Our minds should furnish the true guage of honesty. A petit jury is usually detained in custody for the protection of the prisoner, and he alone can complain of its separation. This grand jury is claimed to have been kept in custody to protect it from the prisoner or his counsel, officers of the court. If such was the only purpose, the error might be overlooked as harmless, though the excuse is not a legal justification. If, on the other hand, it was a show of authority, for the purposes of coercion and intimidation under illegal instructions and illegally limited evidence, to obtain the character of indictment sought, any action resulting therefrom would undoubtedly be illegal and void. Such excessive power, though honest in purpose, should be denied because in unscrupulous hands it might be used to further dishonest ends. To keep the fountain of justice pure and above reproach, the very appearance of evil should be avoided. This Court might as well be placed in custody of a sheriff, as a grand jury; for, within their respective spheres, they are equally independent and co-ordinate members of the same judicial system. When the noble independency of the grand jury is destroyed the efficiency of our judicial system goes with it, and “a government of the people, by the people, for the people,” is placed in jeopardy and doubt. Our government rests, in theory and practice, wholly on the American integrity of its citizens; and if the noblest of these cannot be trusted to faithfully discharge the duties of grand jurors without being restrained, in imitation of star-chamber methods, of their freedom, as suspicious culprits, the foundation on which our free institutions rest are but the shifting sands of the seashore, and our existence as a nation depends entirely on the uncertain props furnished by a judiciary chosen from the same class of depreciated citizenship, — a little more learned in the intricacies of the law, but none the more proof against corruption. In commendation of the grand-jury system a great jurist once said : “In their independent action the .persecuted have found their most fearless protectors, and in the records of their doings are to be discovered the noblest stands against the oppression of power, the virulence of malice, and the intemperace of prejudice.” *632To disparage or destroy the independency is a crime against, free government. But the most glaring innovation and usurpation of power was the assumed authority to examine the regularly summoned and duly qualified (according to legislative requirement) grand jurors on their voir dire, and to reject some and accept others according to the mere whim and caprice of the judge, and then cause the vacancies purposely created to be filled by persons summoned, by private direction of the judge, by a private person, other than the sheriff or his duly qualified deputies; thus setting at naught the law and the Constitution, and clothing himself with absolute power to determine arbitrarily of what person the grand jury should consist.
Gen. Washington (a man whose patriotism is not now open to question), in his Farewell Address, commenting on party spirit, used this memorable language: “This spirit, unfortunately, is insuperable from our nature, having its root in the strongest passions of the human mind. It exists, under different shapes, in all governments, more or less stiffled, controlled, or repressed; but in those of the popular form it is seen in its greatest rankness, and is truly their worst enemy.” 1 Mes. Pres. 218. Partisan prejudice and passion thus recognized pervade our whole political system, from the highest court to the humblest citizen in the land. It is stronger and more pronounced in some persons than in others. There may be those who are entirely free from it, but such is not the rule. On the other hand, there are those of such ardent and zealous dispositions as to be unable to repress their feelings or brook opposition, so that they are wholly incapacitated from doing justice to those who do not affiliate with them politically. Clothed with the power, they would make a holocaust of their foes, while they are ready to canonize their friends, in whom they can see no guile. This is to be deplored, and is a blot upon the fair name, and a hindrance to our country’s progress. Brit it is a fact that can neither be parried, denied, nor ignored. Not a theory, but a condition of degenerate human nature, which must be met and repressed by gentle, firm and judicious measures, to insure the perpetuity of self-government. It would be destructive of the peace of the land, *633and productive of continual strife, recrimination, and bitterness, if judge or juror was subject to direct challenge because of partisan prejudice or bias. Hence such a challenge is contrary to public policy. But the reservations and limitations of the constitution were conceived by wise statesmen, and intended to remedy this great and dangerous evil, and restrict it within minimum and reasonable bounds. None of these are more potent for good in furthering the design of their conception than the requirement that the legislature shall not enact special, but shall enact general, laws regarding all subjects of legislation, where the same can be made applicable. General laws secure equal rights to, and impose equal burdens on, all citizens alike. And the protection of the citizen against partisan passion and private enmity under color of the discharge of official duty was the real great object had in view when it was made the duty of the legislature to provide by general law for the summoning and impannel-ing of grand juries. To allow special legislation in such cases would operate harshly, unequally, and unjustly; and if the courts are permitted to disregard such general legislation, and arbitrarily adopt methods of summoning and impanneling grand juries, constitutional limitations and securities would be rendered of no effect. The courts would enjoy the privilege of legislation denied to the legislature, and could thereby repeal, alter, or amend general legislation so as to make it special, and produce the very inequality of rights and burdens the Constitution seeks to obviate. The mere fact of immediate execution as against one person would not change it from a legislative to a judicial act. Place such power in the hands of an unscrupulous or vindictive partisan judge, with a prisoner of opposite politics in custody, and how promptly will such judge, under the influence of private spleen or party pressure, make up a grand jury selected from his partisan constituents, and thus produce a partisan, biased, and pliable body of men, ready to respond to the illegal instructions of the judge, in mere reflection of his will, and persecute a person for his politics, rather than p\mish him for crime. Because such power is dangerous in the hands of the unscrupulous or malicious, it is denied to all. The rain, to produce equality, must fall on just and unjust, partisan *634and non-partisan alike. To obviate the difficulty of partisanship, the -legislature has provided for the selection of jurors, as near as may be, by lot, limited to a given number of the better class of citizens subject to jury service; not authorizing- the sheriff to supply any other than adventitious vacancies. To the judge- no power is given in the selection of grand jurors, but he is removed from partisan bias and temptation. The law, properly enforced, of its own vigor makes the selection without his assistance. His duty is to see that the law is enforced. This is the method approved by experience and reason as the most fair and just to every person likely to be charged with crime. And, while not wholly free from objection, a better is yet to be devised by the increasing wisdom of the future. Grand jurors selected in this manner are not subject to challenge for any cause, — not even for partisan bias or prejudice, be it ever so pronounced or bitter. 3 Rob. Prac. pp. 88, 89, 92; Matth. Cr. Law, 111, note; State v. Hamlin, 47 Conn. 95; People v. Northey, 77 Cal. 618, (19 Pac. 865, and 20 Pac. 129); Com. v. Woodward (Mass.), 32 N. E. 939; 1 Kelly’s Rev. St. W. Va. 433.
The guaranteed right of the accused is nothing more than to have the grand jury selected in accordance with the law as written, and this he may demand as the palladium of his liberties and his city of refuge. It may be possible that under this system the guilty may sometimes escape-merited punishment. Far better that this should be the case than that judicial despotism should be enthroned as a permanent part of our jurisprudence. The favorite and probably conscientioits argument in justification of the infamous judges of history was that the king’s enemies could not be punished by the ordinary methods of judicial procedure, and therefore extraordinary and extrajudicial means must be invented, as a denier resort, to preserve and vindicate the majesty of the law. It is here urged, with a show of sincerity and conscientious discharge of duty, that because two grand juries, composed of thirty-two upright citizens, duly qualified and chosen in the manner provided by general legislative enactment, refused to indict, the judge was justified in adopting extralegislative means to obtain an impartial grand jury that would indict the prisoner. “Impartiality” is made synonymous with *635‘ ‘indictment. ’ ’ To be impartial, the grand jury must agree with the impartial opinion of the judge that the prisoner should be indicted for murder if a homicide, not denied, was shown in evidence. In other words, it must reflect the will of the judge, or be discharged with a public and extrajudicial rebuke. If this is not the exercise of despotic judicial power, such a thing is impossible, and Magna Charta is the monumental mistake of the ages. But it is said in mitigation thereof and in apology therefor that this was only a grand jury, and the prisoner is entitled to his trial by petit jury. If the same extralegislative methods in disregard of general enactment are to be resorted to in the summoning, impaneling, and charging a petit jury, the same rank injustice may be expected to follow as the certain result. The ancient legal and religious maxim is equally applicable to the judiciary as to witnesses: “He that is unjust in little will be unjust, in much.” “Falsein one thing, false in all.”
My conclusion, therefore, is that the circuit judge, in summoning, impaneling, charging, and controlling the third and last so-called “grand jury,” exceeded his legitimate powers and jurisdiction, in violation of the express limitations of the Constitution and the guaranteed rights of the prisoner, and that the indictment obtained by such illegal methods is void, and that the trial thereof should be prohibited. The guilt of the accused is not now in question. The guilty, until convicted, are entitled to the same rights and securities as the innocent. The respondent claims to set out the evidence as detailed before the several grand juries. If true, it makes a clear case for indictment, and it is inconceivable that a legal grand jury should refuse to indict. But the statement of the evidence is controverted by affidavit, and by two legally selected grand juries refusing to indict, — the last in disregard of positive and illegal instructions of the judge, — and by the alleged necessity of illegally obtaining and controlling an alleged impartial grand jury before an indictment could be obtained. This is undoubtedly sufficient to raise the presumption that the possibility of convicting the prisoner on a charge of murder, if a fair trial in accordance with law be afforded him, is but slight. And it being inhuman, contrary to the bill of rights, and wholly unnecessary, even *636in response to popular and partisan clamor, to punish before trial and conviction, the accused should be admitted to bail, if thereby his appearance to answer any legal indictment that may be preferred against him may be secured. Nor are these conclusions in any manner harsh to the prosecution. For, if the prisoner’s guilt is as claimed by the respondent, a grand jury summoned and impaneled according to legal methods will not hesitate to indict him ; and it. is to the glory and honor of the (State that its just and impartial laws as written in -its statute books should be upheld and vindicated for the welfare and peace of all its citizens, rather than that the despotic, usurpation and abuse of legitimate power on the part of its judiciary should be excused or palliated, much less extolled, justified and defended for future precedent. That state is alone worthy of the name that can throw around the property, liberty, and life of its meanest citizen the protecting aegis of just, fair, and equal laws, administered according to the plain letter thereof, without fear, favor, or affection, by a pure, impartial, and incorruptible judiciary, unmoved by party passion, clamor, or erimity. The writ should be awarded as a matter of right.
After an order had been entered refusing a writ of prohibition in the foregoing case, the counsel for petitioner moved for a rehearing, which motion was overruled by a divided court; and Judge Dent filed the following note:
Note by
Dent, Judge:I am in favor of reargument of this ease, and believe it should be granted. This being- a matter of original jurisdiction, the result of a divided court is simply null. Lt determines nothing-, but leaves the controversy as though there had heen none. This Court owes it as a duty to the public to reach an agreement and decide the case, if possible. Both divisions may be wrong, but both cannot be right. Whichever may be wrong may bo placed right on a reargument. Not only this, but the rule should be, in case of a divided court, that a reargument ought to be had, as a matter of judicial respect, and concession, at the instance of a single judge, without regard to his position; for, if he is open to conviction on reargument, the court may arrive at an agreement and decision, and thus discharge its official trust in a beneficial manner to the public. Yet I recognize that such rule cannot be established except by concurrence of a majority of the Court, as affirmative action is required. Two members thereof, while they prevent, are ppwerless to produce, results, when negatively op*637posed by the others. No case should be leit undecided when there is a possibility of agreement. I unhesitatingly say that, while I have a positive opinion, I do not cherish it as infallible, but I am open to conviction, ready to be convinced of error, and earnestly desirous that the law of this case should be properly, finally, and rightly determined and settled. Here at Charles Town I have been unable to find the authorities necessary to a thorough and exhaustive examination of the questions involved, and for this reason my conclusions are embryotic.
Denied.