The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1890-01-25
INJUNCTION REFUSED.
Judge PAUL Gives His Reasons
for Refusing the s
PRAYER OF Mr.. A. REyMANN
For an Injunction Against the Board
OF Commissioners In tho Matter OF
tho Proposed New Jail Site.
sI Authorities Quoted. Il

Yesterday Judge PAUL gave his decis.
on In the imatter Of tho injunction
prayed for by Mr.. Anton Reyman against
The Board OF County Commissioners 10
enjoin them from proceeding further In
The requirement OF land contained in tho
northeast quarter.section Of the Public
square, either by purchase or
proceedings, to DO used as
a site for new jail. His decision was
against tho plaintiff, aud no injunction
Is granted. The matter was exhaustive.
ly argued few days since by Mr.. Ii. NJ.
Russell for Mr.. Reymanu, and Prosecut-
Ing Attorney Howard, assisted by Hon.
Thayer Melon and Hon. J. i. Sommcr.
villc for the county. @
Following will be found synopsis OF
Judge paull's decision:
In regard 10 the first point made by
the petitioncr---that the erection and use
In that locality OF jail will constitutes
nuisance which will work great detfi.
ment TO his proporty.and render 1t very
much less desirable Us n place OF resi-.
dence, etc. The court recited the case OF
Burnwcll vs., the Board OF Commission.
ers OF Vance coudty. % N. O., which
was an action to enjoin the Commits.
sioners from erecting II jail Chief Justice
Smith says: ga jail being public nc.
cessity, Indispensable to the administra.
ton Of justice and therefovc re9uiredto
DO built, cannot in itself bea nuisanccin
the sense Of the law, per Sc, though its
mismanagement may render it ,obnoxi.
ous to those who live or do business
near it, since in such case private con.
venience and comfort must yield to the
common good. Assuming discretion re-
posed in the Commissioners in fixing the
location OF this honse and their use OF all
proper means to render it as far as practi.
cable, inollensive and not injurious to
surrounding and near residences and
places OF business, those who occupy
such could not rightfully Claim the in
terpositiou Of the court to prevent its
being built. For il they could thus have
the aid OF the court, so could residents OF
any other part OF the town for the came
and perhaps stronger reasons, because
more thickly settled, as well as contigu-
GUS property proprietors could prevent
tho erection elsewhere. The special
damage in such case is incidental TO
what the general interests OF the com.
munity requires, and becomec damnum
dJsque injuria; otherwise no jail could
be built within the town ii parties inter-
ested MS these plaintiffs, chose to object.
All that can be reasonably required is
that the construction and management
afterwards be such rs to occasion MS little
Inconvenience and discomfort to those
living near as is consistent with the pub.
lie purposes to DO observed, and nothing
OF the kind is suggested in the statement
oil grievances in the complaint. They
are such ms would be objected to with
equal force to prevent any other loca.
ton OF the structure"
Judge PAUL. says in this connection:
"The principles announced in that de-
cision are, conceive, the true princi-
pie which should govern in all similar
cases and are decisive against the right
OF the plaintiff iu.this case 10 an injunc-
ton on the ground that the JUL propos.
ed to be erected by the Board OF Com
missioners will constitute nuisance"
On the second objection alleging that
in the erection OF the proposed jul sur.
rounding property would be damaged
without compensation having been first
made, the Court said:
"As a general rule a party has no
right TO an injunction restraining the
prosecution Of public enterprise until
compensation has been first paid him
where his property has been or will! be
merely damaged-not taken.
The plaintiff does not claim that the
damages he will sustain by reason OF the
erection and use OF the jailw work
a total destruction. to the value OF the
property; the most that he claims is that
it will destroy the substantial value
thereof. I do not think that the facts on
which this claim is based will warrant
the conclusion that the proposed action
OF the Board will result in even sub.
stantial destruction OF such value, much
less totaE"
On the third proposition that an in
junction should issue because the Board
is about to incur a debt amounting to
not less than $4,000 without having
provided for an annual tax to pay the
same, rs prescribed by SECTION OF arti-
Gle 10 OF the constitution, the court held
that the section cited must be construed
in connection with section7. Reference
in this connection was made to the case
of Price against tho County Court of
Marshal county, and quoting tho written
opinion OF Judge Snyder, and applying
the principles in that decision to. this
case, the court said: "The bill does not
allege, nor is it claimed, that the $50, 900
indebtedness which the Board is about
to incur, together with the amount nee
eseary to pay all the debts and liabilities
of the county existing, and for which
provision ought to have been made by
an assessment for the current fiscal year,
will necessitate an assessment exceeding
05 cents per 500 valuation, and in the
absence OF such allegation the presump.
ton is that the Commissioners are act
ing within their authority" ;5ss
On the fourth and final objection, TINT
the building proposed to be erected is to
be used in part as new jail and in part
as offices to be rented and occupied as
such by private individuals, the court
said the allegations upon that point
were not sufficiently specific to warrant
any interference on the part Of the
court and he was therefore OF the
opinion that the injunction prayed for
should not be granted. M.
1t is understood that Mr., Russell, act.
ing for Mr.. Reymann, will at once pre-
pare to take the matter to the Supreme
Court with view to having Judge
Pan'ps decisionreyersed.
Aftonsing Sense
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