The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1889-01-14

Wha, and conspiracy to defeat the vii
Of the people as manifested ut the salt
election, and as such, that effort deserves
the reprobation OF this honorable Cour
: instead Of its aid as prayed in the petit
, ton herein.
The petition Of respondent 10 thI
! Circuit Court OF Kanawha county for {
writ OF mandamus commanding salt
Walker, Secretary as aforesaid, to deliver
TO the Speaker ofthe House OF Delegates
the said certificate Of the result OF the
vote In Kanawha county was presented
in open court within the ordinary hOur'
: OF the courts session, and when OnG oil
the counsels for said Fleming In the
matter Of said injunction, aud in his said
contest, was present in court; and Mt
steps except the filing Of the petition
and the issuance, service and return oil
the alternative writ had been taken
when notice was received OF the peRden'
cy Of this proceeding, since which NO
further action has been had in or by
said Circuit Court in said application fol
a mandamus,
Respondent is advised and insists that
1t Is not within the Jurisdiction OF u
court OF equity To enjoin or interfere
with the discharge Of the duty imposed
by law on said Secretary to deliver said
certificate 10 tho Speaker OF the House
OF Delegates, and that the injunction
awarded by said Hon. A. n. Campbell
therefore was and is void,
Respondent Is advised aud insists that
said Fleming was not necessary or
proper party to said proceedings in
mandamus, instituted by respondent in
the Circuit Court OF kanawha county,
Respondent is further advised and in
sists thar the said Circuit Court OF Kan.
awha county hRd jurisdiction Of said
proceedings in manlamns, aud has not
been and Is not proceeding therein in
excess Of It's legitimate powers,
Wherefore respondent says that the
writ Of prohibition ought not to issue as
prayed, n, Corr.
JUDGE GUTHRIR's ANSWER,
Judge Guthrle's answer recltes that
First-This respondent, for answer to
the rule, respectfully submits that this
Honorable Court has not Jurisdiction Of
the matters alleged aud complained OF
in said petition, and that said rule ought
to DO discharged,
Second-Respondent further says that
he is not personally cognizant Of the
facts and circumstances under which the
said a, b. Fleming, on the 9th day Of
January, 1880, presented his alleged bill
OF complaint against Henry s. Walker,
Secretary Of State Of the State OF West
Virginia, and Nathan Golf; nor Of the
time or place OF the alleged granting by
the Hon. A. N. Campbell OF the order OF
injunction in said petition stated.
Observation-Disclosures states that
on the first Monday December, 1885, the
time fixed by law, the Circuit Court Of
Kanawha county, presided over by re.
spondent Us the Judge of the Seventh
Judicial Circuit Of West Virginia, began
Its regular term In that county, at
Charleston, and las ever since been
holding its session for the transaction Of
the business OF the court; and that on
the 9th day of January, 1889, the said
court was open ut the usual morning
hour aud continued open during the en-.
tire day; and the term Of said court has
not yet ended.
Fourth-Respondent further says that
he was holding said court ut the time Of
the making OF the said order by said
Hon. A. N. Campbell, who ut the time
he so made said order wasin the city OF
Charleston, and knew that respondent
was at that time WIS engaged in holding
said court at the Court House thereof, d
few squares from tho hotel where said
Hon. A. N. Campbell was temporarily
tarrying.
Five-Respondent further shows that
on the = day Of December, 1888, one
John D. Anderson obtained an order OF
injunction from Hon. Ira j. McGinnis,
Judge OF the Eighth Judicial Circuit,
upon bill OF complaint against the
County Commissioners OF Kanawha
county to restrain them from certifying
to the Governor the returns OF the gen.
eral election held on November 6, 1888,
in said county, for representative in
Congress from the Third district Of West
Virginia; and that on the eighth day Of
January, 1850, matters arising upon u
rule for contempt against said commits.
sioners Of Kanawha county, and the said
bill Of complaint Of said Anderson was
fully argued by Hon. 0key johnson and
Malcolm Jackson, counsel for said Alder
son, land also counsel, as respondent Is
informed, for said A. d. Fleming) on the
ninth day OF January, 1850, ut 10 o'clock
q. M, respondent, sitting in regular
term Of said Circuit Court, decided the
questions arising on said rule, and dis.
charged the same and dismissed the bill
OF said Anderson, on the ground that in
the opinion OF respondent no court OF
equity had Jurisdiction TO prevent pub.
lie officers from performing their duties
under the election laws OF the State,
which duties are particularly defined
and prescribed by statute. Z"
Respondent further states that, after
rendering the decision in said contempt
case, he continued to hold his said court
open for other business OF which there
is large and heavy docket; and heard
nothing Of any application for injunc.
ton such us Is set up in the petition in
this cause Of said Fleming against said
Henry s. Walker, Secretary OF the State
aforesaid, until after tho order made by
Hon. A. N. Campbell had been left with
the clerk OF respondents court, and a
summons had been issued by him there
on,
Respondent further states that in the
afternoon Of the said 9th day OF January,
1880, Nathan Golf, by his attorneys, pre-.
scented to respondent In open court,
a petition for suit Of mandanus TO re.
quire Henry S. Walker, Secretary Of
State, 10 deliver to the Speaker Of the
House Of Delegates OF West Virginia,
the certificate Of the result Of said cleo.
ton In tho county OF Kanawha, for the
office Of Governor, alleging that said
Walker had withheld and refused TO de.
liver the same as he Is required to do by
the Constitution Article u Of this State,
and the statute made In pursuance
thereof, and respondent then called at.
tention to the order nude by Hon. a,
N. Campbell, and stated TINT he did not
know whit 10 do with 1t, Us II was q
strange piece Of business, and inquired
who the attorneys were that had de.
livered sail order to the clerk, no coun.
sci having signed the said bill Of coin.
plants OF said Fleming against said
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