Wheeling daily intelligencer. [volume] (Wheeling, Va. [W. Va.]) 1852-1859, 1859-09-01


AT the hearing upon the return of the writs
Of naaadnmus nisi, the Justices Of the county
Were represented by the same counsel who had
defended the county in the suits brought last
year upon some of the coupons Of the Hemp
field Railroad bonds Before and at the time of
making the return to the wits, he moved for
continuance or adjournment of the hearing un~
til tho Fall, or October term of the court. He
: represented the magnitude of the case, the
novelty and importance OF the questions in
volVed, and the stringency of the process to
which the REALTORS bad resorted for the recovery
of their claims against the county; that, except
In Two cases, the REALTORS had not sued the
county SO as to establish the validity Of their
claims by Judgment and that in all of them,
sufficient time had not been allowed between
the issuing and service of the writs aud the re-
turn day, for due and proper consideration of
the many questions involved. 1t was, there.
fore, insisted that the delay asked was reasons
Bile, and ought to be granted; and if granted,
would be no more than that given to every de-
fendant in the most unimportant, undefended
action at Law, by the ordinary course of pro.
ceeding. These high prcrogatiye wrlts were
prosecuted against the Justices of the county,
and related to matters of great public interest,
and that even more than the usual indulgence
should be granted, especially where the court
must be satisfied that the official action of the
Justices had been bona .Jfolc, under honest con.
Victions Of public duty.
To these suggestions and arguments it was
replied. that the issuing of these writs pre-
suPposes the refusal to perform an official duty
by the justices of Ohio County, and is not
therefore, to be governed by the same rules Of
proceeding applicable to an ordinary action ut
Law. The statute provides that, in a proper
case, the peremptory mandamus shall be award
ed soithoHt delay. From the evil to be rem
edied, the fact that the writ is made issuable in
vacation, and the promptness With which tue
peremptory writ is required to be issued, the
delay desired should be granted only where
right and justice clearly required it. It was
further insisted there was nothing lin the cir.
cumstances of these cases in the history of the
county debt, and the efforts of these relators to
obtain payment of their claims, which would
justify the granting of the continuance or adj
journment, but, on the contrary, they should
the rather induce the court to require an imme-
prompt adjudication of the rights of the parties
1t was stated, that when the County Court, at
the June term, 1857, made the levy for the pay
ment of the interest on. the bonds, the same
counsel now appearing for the Justices, obtain.
ed supersedeas to that levy from this court;
and after the County Court had, in the same
year, renewed the levy in conformity with the
opinion Of this court, including thcreinthe levy
for the interest, aud this court had denied the
petition fora Snpersedeas, an application was
presented to the Supreme Court of Appeals,
then in session at Lewisburg. The proceedings
there had presented the same questions and the
same controversy now involved in these writs of
andndamuS Mai. The Supreme Court Of Ap.
Peals denied the application, thereby affirming
the order of the Circuit Court for Chic Coun.
ty, previously made, denying the same ap-
plication. These proceedings were thus re.
ferred TO, not as conclusive upon the mer.
its of the present controversy, but to show
the court that the counsel for the. justices had
had ample time, (ncarly two years,) thoroughly
to investigate both the facts and the law
Again, after the County Court at its Levy Term
in 1868, had refused to levy for the payment of
the interest on these bonds, two Of the holders
instituted suits against the county, which were
tried before this Court at the Fall Term, 1868.
The same counsel defended these actions, and
was thus afforded another opportunity, in pro-
ceedings somewhat different from those for.
nerly had, to investigate both the law and the
facts; and, after all the deliberations and care
these interesting, novel and important questions
demanded. this court had rendered judgments
in those cases, upon the petition of the County
Court, supersedeas had been awarded by a
Circuit Court Judge, which, to the time of this
argument. had not been further prosecuted
The court refused to continue the. cases until
the Fall Term, but adjourned the anal hearing
to the latest day of the then current term; and
on the 9th of July, the day on which the Spring
Term closed, the Judge awarded peremptOry
writ of Aandamus in each case.
We have endeavored to give distinct, vet
brief synopsis of the arguments on each side
upon the motion to .adjourn or continue the
hearing Of these writs of Mandamus nisi. until