Wheeling Sunday register. [volume] (Wheeling, W. Va.) 1882-1934, 1892-02-28
TWO DECISIONS
MADE BY JUDGE PAUL. IN THE QUO WAR
RANTO CASE.
The Demurrer Of Counsel for McNichol Sustained
in the First and Partly Sustained
in the Second.

Judge PAUL made considerable num-
Der of decisions and orders at the ad-
iourned term OF the November term Of
Court, held by him yesterday, and
among them was the following opinion
in the case of Delbrugge VS.. McNIchoi,
which was pending on the demurrer OF
the defendant to the petition OF the
plaintiff.
The Court read his opinion, sustaining
the demurrer of defendant. as follows
state of West Virginia at the relation Of LOUIS
Dsl5ruQgs q. Robert T. lcNi.h9t:-
1.-The defendant demurS to the infor-
nation filed herein, and for grounds OF
demurrer assigns the following:
al. 1t fails TO show that the said Del
brugge was or is person Interested,
there being no sufficientaverment that at
the time of the alleged intrusion, or since,
he was, or is, lawfully entitled TO eXer-
else the powers or perform the duties OF
the Office of Sergeant of the city OF
Wheeling, and it not appearing that he
is citizen and taxpayer Of such city.
1.-The statute under which this pro-
ceeding was instituted (Chapter 100 OF
Code) provides that ANY person inter-
eSted may, i'll the name OF the State OF
West Virginia, apply, &c.
This provision plainly means that
such persons must be interested at the
time application is made. Now, the in
formation in this case unQueStlOnaOly
shows that Louis Delbrugge was inter
ested in the Office Of Sergeant OF the
city of Wheeling from January p, 1891,
when he entered upon the discharge OF
his duties and the exercise OF the pow
ers thereof, until December is, 1891,
when the defendants alleged intrusion
commenced; but it does not show that
such interest continued after that date
and up to the filing of the information.
Indeed, every allegation which the
information contains is connected with
the theory that the entire interest OF
the relator in the Office had terminated
prior to the time when the information
was filed. He may have resigned and
his resignation may have been duly ac-
cepted by Council, in which event he
would clearly have no authority TO in
stitute these proceedings Except, per-
haps, as citizen and taxpayer, and he
does not base his right Of action upon
that ground), even if the defendant had,
in fact, unlawfully intruded into and
uSurped the office.
at is also assigned as ground OF de-
murrer, that the allegation that the de-
PENDANT, at the time named, held the
Office or position of deputy sergeant OF
the said city, is not pertinent to any
issue, but is irrelevant and immaterlal.
This allegation was doubtless based
on Sec. >, of Chap. 195, of the Acts OF
1882, amending the charter of Wheeling,
which provides the City Sergeant land
deputies who have served under him
during the preceding year. shall be in
eligible for reelection after two sue
cesSful terms, until one term shall have
interviewed.
..But as the information in this case
Is framed solely upon the theory that
the defendant has unlawfully entered
into and usurped the Office OF Sergeant
of the city OF Wheeling, and as IL con-
tains not the slightest intimatiOn OF any
legal claim thereto on his part, by cleo
ton or otherwise, the allegation for this
reason a!Oue, Is mduIAeSIlJ AIC'"lOHt
and immaterial.
1.-THE demurrer must therefor be sus-
tanned"
The plaintiff then asked, and was
granted. leave to file an amended petit
ton, and this was done, the new paper
making it appear that petitioner was
and is Sergeant Of the city OF Wheel
ing" and that be is "a citizen and tax
payer" The defense thereupon again
demurred TO the petition as before,
when Judge PAUL sustained the demur-
rer as to the allegation that defendant
was Deputy Sergeant, and overruled
il as to other matters. The defense was
then given until the first day of the next
regular term to answer, and the matter
will thus rest until the April term of
Court