Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1901-04-20


Yesterday afternoon Judge III. C.
Hervey oyer-ruled the demurrer of the
old Board of Public Works to the re-
turn by the new board to the a~lterna-
tive writ of mandamus. Arguments
were heard upon the demurrer last
Monday. In ruling upon the matter,
Judge Hervey renders a written opin-
ion In which he discusses at length the
legal points involved.
Technically, the decision Of the
court means that the answer of the re-
epondents to the averments of the pc
titioners is complete and sufficient.
The next step may be the filing of a
replication by the petitioners, to which
the respondents would probably demur.
II the demurrer were sustained, the
matter would revert to the question of
issuing the writ of peremptory manda-
mus, upon which the court would prob
ably take evidence in order to deter
mine the questions of fact. Then, if
the petition for the writ were denied,
the old B. P. w. would have the right
Of appeal to the State Supreme Court.
This statement is made in reply to
several queries concerning the effect of
Judge Hervey's decision.
While the steps indicated can, and
may be taken, it is not believed they
will be. In rendering his decision
upon the demurrer Judge Hervey
effectually disposed Of most, if not all
of the material points in the case, from
the standpoint of the petitioners, so
that it is believed that the entire mat
ter is virtually ended, at least in so far
as the Circuit Court is concerned. AS
a matter of fact counsel for the petit
TONERS had their replication prepared
at the time they demurred to the re-
turn of the respondents to the alterna-
tive writ, but the replication has not
yet been filed.
1t is a bulky document, consisting OF
~ EJPS "AAeeCh PaSoo, IOuCAlAS upNH
many points which in the light of
Judge Hervey's opinion. must be con
siderec wholly irrelevant. Following is
the full text of the written opinion OF
Judge Hervey:
"In disposing of this demurrer it is
not necessary to notice whether the
return fully and completely answers
all the averments of the alternative
writ; 1t is only necessary to determine
whether it answers the material aver
ments and sets out such facts as show
that respondents claim to the Offices
they hold is such that the court will
not grant the peremptory writ. | will
o therefore attempt to take UP and
dispose of the several causes of de-
murrer in the order in which thew are
assigned, but shall content myself
with passing upon those features of
the return which are important in the
adjudication of the rights of the par
ties to this suit.
The return must be held as admit
ting the regularity of the election and
qualification of the petitioners as
members of the Board of Public Works
and is therefore sufficient in that re-
spect.
Taking up the events that need to be
noticed in the order OF their occur
nee father than the order in which
they are set out in this writ and re-
turn, it appears from the writ, as well
as the return, that the
Meeting of February 2Gfh,
1901, vas a regular meeting of Coun-
Gil, and therefore one of which all
councilmen are presumed to have had
notice, and a meeting in which they
were bound, in the performance OF
their public duties, to attend. 1t ap-
pears from the return that a number of
the councilmen fearing that if a meet
ing of Council was held, they wouli be
~out-voted in joint session, and persons
selected for Office to whose election
they were opposed, gathered togcsaer
in a room some distance from the place
of Council meeting and then locked
themselves in; that by this action of
these members both branches CT Coun-
ell were left without a quorum at the
time appointed Tor meeting. There