Wheeling Sunday register. [volume] (Wheeling, W. Va.) 1882-1934, 1892-05-08
I'HE CITY SUSTAINED,
BY JUDGE PAUL. IN THE DELBRUGGE-
MKICH0L CASE.
An Opinion In Which the Court Holds That tht
Action of the Committee on Police Was
Conclusive and Binding-His Reasons.

Action of the Committee on Police Was
Conclusive and Binding-His Reasons.
In Part Two Of the Circuit Court,
Judge PAUL, yesterday, decision was
handed down in the quo l0drGntO case
of Delbrugge v. McNichol, overruling
the demurrer to the answer of the de-
PENDANTS, and thus sustaining the action
of Council and of the Committee in &C
cepting the resignation OF Louis Del
brugge and electing Robert T. McNlchol
to fill the vacancy.
Counsel for the complainant said
yesterday, after the decision, that they
were perfectly satisfied, and would at
once take an appeal TO the Supreme
Court, where they were confident OF a
reversal of the Court below.
In his opinion, after reciting the
material facts in the case, leading up
to the rendering Of his resignation by
Chief Delbrugge, and its acceptance by
the Committee, the Court says
"On behalf of Delbrugge it is claimed
that the action OF the Council In de-
claring the Office of City Sergeant va
cant, and in electing the defendant 10
fill the vacancy, was illegal and void,
because, as he insists, his tender or offer
to resign was revoked before any action
was taken thereon by Council.
This claim, it seems 10 me, is unten-
able for the following reasons:
81. No attempt was made to revoke
the resignation until after it had been
accepted by the Committee on Police.
And, as this acceptance was in accord
ance with the terms of the agreement,
which Delbrugge had voluntarially en-
tered into with the Committee, and
which was made solely for his benefit
an agreement which the Committee had
faithfully performed on its part, but
which he had violated on his-the offer
or tender to resign then became fixed
and irrevocable.
"2. In Dill, Nun. Corp, sec. 224, it
is said that an acceptance is necessary
to a consummation OF a resignation, and
that until accepted by the proper
authority, the tender or offer to resign
is revocable. This proposition of law
may be conceded to be correct, aid 1t
must still be held that the resignation
under consideration was not revoked
prior to its acceptance by the proper
authority. Upon this subject the an
swer shows that this resignation was
rendered to and accepted by the Com
mittee on Police; that this committee is
- ~ mi
the City Council, whose duty
it is to supervise the Police De-
partment, and to take action upon
reported delinquences in the discharge
of duty on the part OF the different
members of the police force; that Del
brugge had notice Of the meeting of the
Committee at which the resignation was
accepted and CT the object for which
that meeting was called, but Jailed to
appear or respond in any manner; and
that the action of the Committee was
reported to and ratified and approved
by the Council, at a meeting called for
that special purpose. So that IL it be
granted that the Committee had no au-
thority to accept the resignation, yet
the adoption and ratification by Coun-
ell of the action of the Committee in
this respect, made the acceptance ef-
fectual and complete from the time the
Committee acted on the matter, and not
merely from the time Council acted.
cit may be claimed, however, that the
investigation which was made by the
Committee and the acceptance OF the
resignation in pursuance thereof, was
matter which Council could not dele
gate to Committee, as 1t required the
exercise Of judgment and discretion.
"But % City Council may appoint
a Committee even in matters requiring
the exercise OF judgment and discretion,
to investigate, procure information, ana
make recommendations: Minneapolis
Gas Light Co. v. City of Minneapolis, 30
Mimi, 1916; and (2) notice TO appear
before such a Committee is to be re-
garded as notice to appear before Coun-
Gil, to whom everything material may
be expected to be reported: Preble V.
Portland, As Me-, 211-24s. See also
upon the same subject Com. V. City OF
Pittsburg, II Pa. ST., 177-1s4; Salmon "
Haynes, so n. J. L., 97-10l; Calkins V.
Holyoke, ALAG Mass, 29s-307. Peterson
V. Mayor, Sc, of New York, II n. y,
449.
Now the duty OF the Committee on
Police, which was a standing Committee,
was to investigate, procure information,
and make recommendation to Council,
and that was all the Committee assumed
to do in this case OF the meeting OF
the Committee, and the purpose and
object OF that meeting at which the In
vestigatiou was made and the resigna-
ton accepted. Delbrugge had notice,
but he failed to appear and make de-
Tense, as he should have IL he intended
to question the authority OF the Com
mittee.
"For the foregoing reasons, am
clearly of the opinion that the demur-
rer to the answer Of the defendant
should be overruled."