Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1901-03-23

= After threatening for several days to
apply to Judge H. c. Hervey for a writ
of mandamus, the Republicans went
into court yesterday afternoon. through
their attorneys, Caldwell & Caldwell,
upon a petition for a writ of manda-
mus to compel the new Board of Public
Works and City Sergeant Ritz to place
the Office and books OF the Board in
possession of the old members. Judge
Hervey, upon the prima facie case
which they established in their bill, is
sued an alternative writ of mandamus
returnable next Thursday. The de-
PENDANTS will answer next Thursday,
and the case will probably be argued
before the Court.
The Republican case is based largely
upon a statement of very material facts
which is disputed and fatty contra
dicted by the Democrats. 1t is evident
that their most important contention
Is that the Second Branch was legally
DNJOthhSu Wy lOoidOAt I'LL dlICI tllo
regular Republicans hal Deen arrested
n brought into the Second Branch
chamber on the morning CT February
9th, and that lhe meeting subsequent
ly held was a special meeting, but that
the conditions of the law relative to
special meetings were not complied
with, and the proceedings were there
fore illegal.
The question of fact will enter very
prominently into the final determina-
ton OF the case, no doubt, and it is
probable that some evidence will be
offered by both sides. 1t is claimed by
the Democratic members of the Second
Branch that when Mr.. Hill took the
chair, he asked for an affirmative vote
on the motion to adjourn, but did not
ask for a negative vote. After getting
the ayes" he Immediately declared
the motion carried, Notwithstanding
Democrats were on their feet protest
ing, and demanding a division. Mr..
Hills action was illegal and unfair.
The case is styled Henry Schmul-
bach, Frederick j. Park and Chas. M.
Frissell, petitioners, VS.. Joseph Speidel,
Chas. Menkemeller, Chas. w. kreiter
and John S. Ritz.
The petition represents that Council
consists of two separate and distinct
boards or branches, and under an act
OF the Legislature of January 18th,
1853, it is provided that no contract
shall be entered into without the con-
sent of both branches. Section 6 of
the same act makes it the duty of the
Mayor to preside in the First Branch,
but provides that in his absence the
members may appoint a chairman pro
tempore, and adopt such rules and Of
fieers as they may deem proper. Sec
ton 7 relates to quorums and pro-
videS that a smaller number than is
necessary for a quorum may adjourn
from time to time, and compel the at
tendance of absent members. Section 8
provides for the election of a president
of the Second Branch.
The petition then quotes from the
act of February 27, 1882, that "at the
first meeting after every regular char
ter election of said city, or as soon
thereafter as practicable, there shall
be elected by the Council of the City
of Wheeling, in joint session, a quorum
of each branch being present, three
members of the Board of Public
Works" etc. Section 3 of the same
act defines the powers of the board.
The petition then recites the fact
that a special meeting of Council was
held January 31st, and the two
branches went into joint session; that
there was a quorum of each branch
present; that the petitioners were elect
ed a board Of public works, and sub
sequently qualified. By an ordinance
passed by Council January 18th, 1900,
rule Al provides that bonds shall be
presented to the Second Branch; and
that all officers are required to take
an official oath in the presence of the
Second Branch. Rule As provides that
matters adopted by one branch shall
be communicated to the other for con-
currence or inconvenience. The
petitioners represent that under the act
of 1868 no contract shall be entered
into without the consent of both
branches, and rules Al and As, quoted
above, merely provide for carrying in
effect such legislative enactment.
The petitioners further aver that