Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1888-12-01
THE PROCEEDINGS
Had In the Circuit Court, Before Judg'
BOyd, Yesterday.

Had In the Circuit Court, Before Judge
Boyd, Yesterday.
As was anticipated, there was large
audience pIe.ent in Part Two of the Cir
cult Court, Judge Boyd, yesterday NOM
ing, anxious to see aud hear what might
take place in the matter of tie petition
for the writ of maaddmus and restrain
ing order sworn out by G.. W. Aikipsop.
on wedassasy-sfscruccn" memhers
ofssst6 Board of Commissioners were on
hand promptly, headed by President Cruise,
and with them came J. D. Ewing, special
counsel for the Board, and Hon. Alfred
Caldwell, counsel for Mr.. Pendleton.
Of gentlemen interested on the other
side there were present Mr.. Atkinson him
self, Messrs. Hugus and Russell, his coun.
sci, and Chairman W. J. w. CowdeD.
When the matter came up, Mr.. Russell
made application for writ of csrtiOrari, ss
an addition tn the legal STEPS alrsady
taken. To this Mr.. Ewing Objected. on
the ground that the plaintiffs slrssay had
suit in this Court, involvipssshe same
matters and the same pspSsyArd it would
be proper to dispose asssnst prior case be-
tore entering RSedfa new ore.
Counsel Tor the Board then demurTed to
the petition presented to this Court,
Wednesday, upon the ground that
it did not c)rrectly state the
facts, and was followed by Mr.. Caldwell,
who addressed this Court at considerable
length on q motion to set aside the order
which had been entered in Court, restrain
ing the commissioners from forwarding their
certificates to the Govern or, which order, be
said, was not proper, and had besn improyi-
IDENTITY awarded. Proceeding, he said the
Governor was not tied down to the csrtifi.
Gates, in any case. The plaintiffs hsd sud
denly come to the conclusion that they
could not maintain writ of prohibition,
which was VIA. this restraining order
amounted to, and that was why they had
turned up with request for certiOrari
The whole matter was simply an effort to
delay action; it was anomalous, and bad
no precedent. He scored the pstition pre-
scented to Judge Boyd, Wednesday, and
said the people who had drawn the piper
and the gentleman who had sworn to it,
knew there had been no refusal to grant or
sign bill of exceptions, when they had
got up their little document. He asked
the Court to take up the matter st the be-
ginniDg-at its threshnold- and dispose
Of it.
Mr.. Caldwell was followed by Mr.. Ewing,
who said, in regard to proceedings by man
damus, that uDqusstionsbly, whel proper
case has BEEN made out, q writ Of mGRdGmuS
could issue to compel al inferior Cjutt to
sign proper bill OF EXCEPTIONS; bat in this
case he did not think proper case had
been made. He citsd q number Of author
titles, and pointed out that there were only
two cases in which m1nddmus would be
proper. 0Ge was when a proper bill Of
exceptions, correctly stating the facts, had
been made and presented to the Court with
q rtqusss to sligo it, which request hsd been
refused; and the other was where tie Court,
in refusing to sign the bill, conceded that
it was proper bill, but would have roth
ing to do with any bill. Neither of these
cases was the present situation,
and the plaintiffs were net in
condition to ask for q mdRdamuS
II they were sgrieved they were, upon a
proper presentation Of a proper case, enti-
tied to writ Of eertiOrdri, bat there was no
present grounds for mandamEs or prohibi-
ton. No precedent could Re found for the
writ Of prohibition; on the other hand, in
such matter, this Court had no jurisdic-
ton over the Board. That Court had
simply erred, and that was the substance
of the ALLEGATIONS here made. In Coaclnd-
ing, Mr.. ESirg said the Governor was
making enquiries about the certi-
6cates, thinking they had been already
unduly delayed. 1.-The should make de-
mand for the papers, the Board would BE-
In dilemma. With the Executive branch
of the government pulling one Wsy. and
the Judicial branch another, the Board
would be in an unpleasant position.
Mr.. Russell replied to the counsel for
the Board and Mr.. Psndleton at consider
able length. He defended tho petition