The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1892-02-29
DE,lUnREt SUSTAINED.
Dclbru.se's Petition not suficlsnt-A y,

D~rlbrugsc'A IstulOn not SuTnclpnt-h NcW
onn nod.
In Judge Paull's court Saturday the
following decision waB handed down In
the quo warrdnto proceedings Of Louis
Dolbruggc against Robert McNichol,
concerning the City sergeantcy:
state Of lIis. Virginia al the relation n Loub Dbl.
brnggc =, Robert I. AcNfchol:-
The defendant demurs to tho inior.
nation filed herein, aud for grounds OF
demurrer assigns tho following:
"a. 1t fails to show tina. the said Del.
brnggo was or is II person interested,
there being no sufficient avcr.ncnt that
at the time OF the alleged intrusion, or
since. he was, or Is, lawfully entitled to
exercise the powers or perform the du.
ties OF tho Office OF Sergeant Of tho city
OF Wheeling, and 1t not appearing that
he is a~citizen and taxpayer OF such city.
''Tho statute under which this pro-.
cccding was instituted Chapter 100 OF
Code) provides that "any poison inter
ested may, in tho name OF tho State OF
West Virginia, apply &c.
This provision plainly mean that
such persons must be interested Mt
tho time application is made. Now, tho
information in this case unqucstionably
shows that Louis Dclbruggo was inter-
es,cd in tho office OF Sergeant OF the city
Of Wheeling from january 81 1891,
when he entered upon the discharge OF
his duties and tho exercise OF the pow.
ers thereof, until December Is, 1901,
when tho defendants alleged intrusion
commenced; but it does not show that
such interest continued after that date.
and up to the filing OF tho information.
"Indecd, every allegation which tho
information contains il connected with
tho theory that the entire interest OF
the relator in the Office had terminated
prior to the time when tho information
was filed. Ho may have resigned and
his resignation may have been duly ac-
ceptod by Council, in which event he
would clearly have no authority to in
stltuto these proceedings Except, per-
haps, rs Il citizen and taxpayer, and he
does not base his right OF action upon
that ground, even ii the defendant had,
in fact, un!awiully intruded into and
usurped the office.
ut is also assigned ms o ground OF do
murrcr, that the allegation that the de-
fcndant, at tho time named, held the
office or position OF dcputy-scrgeant OF
tho said city, is not pertinent to any
issue, but is irrelevant and immaterial.
This allegation was doubtless based
on Sec. 9, OF Chap. 105, OF the Acts OF
1882, amending tho charter OF Wheeling,
which provides the city sergeant (and
deputies who have scrved under him
during the preceding year. shall be in
eligible for reelection after two sue
Cessive terms, until one term shall have
interviewed.
But rs tho information in this case
is framed solely upon tho theory that
the defendant has unlawiully entered
into and usurped the office OF sergeant
OF the city OF Wheeling, and as it con-
tains not the slightest intimation OF any
legal claim thereto on his part, by cleo
ton or otherwise, the allegation Tor this
reason alone, is manifestly Irrelevant
and immaterial.
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 hat he is "a citizen and tax
payer" The defense thereupon again
demurrcd to the petition rs before,
when Judge PAUL. sustained the demur-
rer as to the allegation that defendant
was u deputy sergeant, and overruled it
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 uutil the April term OF
court.