The morning news. [volume] (Savannah, Ga.) 1887-1900, 1897-10-24
ARGUMENT NOT CONCLUDED.
RESTRAINING ORDER UPON CoUN-
GIL TO DE FURTHER DISCUSSED.


straining order Granted by Judge
Swent-The Opposing Issues Repre-
scented by Mr.. Adams for the City
and Mr.. duBignOn for the Fire
CommissiOn-SOme Fine Points of
Law Sprung-WiH Require An
other Day to Conclude the Hearing.
The entire day in the superior court
yesterday was taken up with the argu-
meut on the motion of counsel for the
mayor and aldermen to dissolve the writ
Of prohibition obtained from Judge
Sweat OF Ware circuit during
the absence OF Judge Falli-
giant, restraining the city council from pro-
ceeding according to its announced ,inten>
ton with the trial of the members of the
fire commission on the charges Of i'm
parchment. What is more, there is every
prospect that another day will be con-
sumed in argument before the question
is intrusted to Judge Falligant.
After the usual preliminary skirmishing
City Attorney Adams made the opening
argument for the dissolution OF the writ.
occupying not quite two hours. He was
followed by Mr.. F. G. duBignon ehieI
counsel for the commissioners, who oc
cupied the remainder of the forenoon and
afternoon, about three hours in all Mr..
duBignon had not concluded at o clock,
when Judge Falligant adjourned court I'M
til 10 o'clock tomorrow morning, and will
resume his argument at that hour He
viii be followed by Mr. A. S. Way, after
which Mr.. Adams will have the conclusion.
The argument yesterday was inter-
spersed with many interesting debates be-
tween Messrs. duBignon and Adams over
points of law and fact and the relevancc
to the matter at issue of the numerous
authorities cited. Much legal hair-split-
ing was INDUCED in, and the questions at
issue between counsel became at times SO
technical and intricate as to leave the or
binary lay observer entirely in the dark.
The readers OF the Morning News are
thoroughly familiar by this time with the
history of the case leading up to the hear
ing on the motion to set aside the writ Of
prohibition issued by Judge Sweat, the et-
feet of which would be to permit the
council to proceed with the
trial of the commissioners on
the impeachment charges. The at
tendance at the hearing was not large,
considering the general interest in the
matter. Mayor Meldrim and Alderman
W. G. Charlton were present during the
greater part of the morning and occupied
seats near Mr. Adams. Aldermen Davis
and Hull were also present during a pars
of the day Chairman Grayson of the
fire commission was present with the at
tOrneys for the commission during the
morning, and Mr.. G. W. Parish of the
commission was in attendance during the
afternoon. Several members of the bar
were interested spectators, among them
Col. William Garrard, who, as an alder
man during the previous administration,
had a great deal to do with the framing
of the commission acts. In addition, there
we're about forty spectators.
The court convened shortly after 10
o'clock. There was a delay of ten min
utes on account of the absence of Mr.. A.
A. Lawrence one of the attorneys for the
commissioners. Mr.. Adams made a state
ment of the matter before the court, and
read the motion submitted in behalf of the
mayor and aldermen, for the dissolution of
the restraining order granted by Judge
Sweat on Oct. II.
Mr.. duBignon stated that he was ready
to argue the question. He sought to have
introduced as evidence a copy of the report
of the investigating committee of council
upon it's investigation of the fire chief, in
formal service of which had been acknowl
edged by Mr.. Adams. Mr.. Adams objected
to the use of this evidence. however as
irrelevant. There was a lengthy discussion
of the matter, Judge Faligant reserVing
his opinion until some effort should be
made to make use of the evidence referred
to.
the restraining order was secured from
Judge Sweat was read by Mr. Adams. The
petition recites the position of the COM
missioners in regard to the action of coun-
ell in attempting to move them from Of
fee 1t has already been published in the
Morning News. ITO this was attached the
charges against the commissioners and the
action OF council. Mr.. Adams said that
there were two questions raised by the
writ of prohibition, one the power of coun-
Gil TO try the commissioners on these
charges. and the second whether If coun-
Gil has such power, the charges are suf-
ficient to remove them.
The council, Mr.. Adams said is proceed
ing under a section of the city code which
permits removal or suspension of office,
and there was no doubt of it's right. to
hear these charges and remove the COM
missioners If ii should feel called upon to
do so. It did not follow. however that
such would be the result of a hearing by
council.
Mr.. Adams discussed the writ of prohi-
bition, as an unusual legal paper, only
called into use on extraordinary occasions,
when there is no other remedy. All that
the court had to do was to decide as to the
jurisdiction of council.
If writs of prohibition should be gener-
ally allowed on such grounds, Mr.. Adams
said, the regular business of the courts
would be greatly interferred with.
The writ of prohibition" he said, sis
not a writ of right granted ex debito JUS
tltiae, like habeas corpus, but it is to be
granted or withheld according to the cir
cumstances of each particular case. A
prerequisite always is an entire absence Of
jurisdiction as to the subject-matter As
said by our supreme court: Ought never
to be granted except upon a strong case
clearly made out Of want of jurisdiction in
the court sought TO be prohibited 1t
must also appear that there is no other
legal remedy or relief given. AS held by
our supreme court, if the town author-
ties having jurisdiction Of the subject
matter do not follow the law in admins
tering and applying it to the facts of the
case, the remedy is by certiorarl, and not
by writ of prohibition Under the author