Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1901-01-16

Ney NedIu the al SuMcHIo Vi SouASSi
upon the petition for writ of man
damus to compel the ballot commits
sioners to place the names of Demo-
cratic nominees for short term Coun-
Gil in the First Branch, upon the Of
fetal ballot for the approaching munic-
ipal election. The court room was
we'll filled, many being present to list
en- to the interesting arguments. When
they were finished, at about six o'clock,
Judge Hervey took the matter under
consideration.
The Democratic contention that the
duties of the ballot commissioners
were purely ministerial, and that they
we're obliged under the law to cause
to be printed on the tickets such
names as were certified to them by the
executive committees of the political
parties, was abandoned. 1t was not
pressed by counsel for the Democratic
committee, especially after Judge
Hervey intimated that he believed the
ballot commissioners had a right to
determine what offices were to be fill
ed.
The point of contention then, was
the question as to whether or not vac
ancies exist in the First Branch of
Council in the Fourth, Sixth and Sew
enth wards. Republican attorneys held
that the tenure of Office of the mem
bers elected to fill vacancies in the
First Branch, will continue for the full
uneXpired term; while the Democratic
attorneys argued that this is contrary
to the spirit of the law, which con-
templates the ling of vacancies I'M
til such time only as the voters may
have an opportunity to elect. One
point upon which counsel differed was
as to the presumption of the law, Re-
publican attorneys taking the position
that when vacancies are filled, they
are filled for the entire unexpired term,
unless it is expressly provided other
wise; and Democratic attorneys TAX
ing the ground that when the language
of the statute is not specific, the pre-
sumption is that appointed candidates
hold office only until the next succeed
ing election. The arguments upon
these points were very interesting.
Mr.. J. J. P. O'Brien read the affidavit
in support Of the petition for writ OF
mandamus, reciting the facts as they
are generally understood. After a
brief argument as to the right of bal
lot commissioners to exercise judicial
functions in determining the offices
to be filled, he passed to a considera
ton of the main question, as to wheth-
or (Tnlnpil hnC yiobt tn fill n
lies for the entire unexpired term. He
read from the acts Incorporating the
,ity OF Wheeling the provisions CIV
ing Council the right to fill vacancies,
and added that the law does not say
whether the tenure of Office of C0un-
cilmen elected to fill vacancies, shall
be for the full term, or until the next
election. He read from Chapter AZ,
Section 20 of the Code, the provision
that vacancies shall be filled by ap-
continent until the next general cleo
lion. The first section of the chapter,
ne said, stated ,na, it was not apple
able to Wheeling, but he mentioned it
to show the general purpose ana ap-
plicatiOn of the law
Mr.. O'Brien said there were no de-
cisions in the West Virginia courts on
the subject, and it was found neces-
sary to go to other States He cited
two cases from the Florida reports
which touch the point very materially.
the cases of Weeks vs.. Gamble The
court held in these cases that the DOW
er TO fill the uneXpired term is part
OF the original power of the people to
elect, and that the appointee holds his
office only until such time as the
people have d chance to fill the Vacan-
cy.
Mr.. O'Brien had prepared syllabus.
from which he read extracts from the
decisions in number of California
cases, and one Texas case, all tending
to sustain the Democratic contention
that when the power to elect for full
uneXpi1ed term is not expressly stat
ed in the statute, the tenure of office
continues only until the next ensuing
election
City Solicitor S. O. Boyce replied to
Mr.. O'Brien. regretting the fact that
he had not had sufficient notice to en-
able him to look into the question as
he would have liked to do He read the
same provisions from the acts incor-
porating the city of Wheeling. as Mr..
O'Brlen, and said that was all the stat
utes contained on the subject. There
was no implication about it. Council
has the right to fill vacancies. If the
appointees were only to held until the
next election, the acts would say SO.
The Florida cases are not analogous.
The law says the First Branch may
proceed to an election TO fill the va
cancy, and stops there. He said there
was no precedent for the position tax
en- by the Democrats. and that the
present method has been the custom
for fifty years.
Col. George 3. Caldwell next ad-
dressed the court. He said it was the
Republican position that there was no
such office to be voted for as short
term for the First Branch of Council.
There is no legal authority for elect
ing two First Branch members in any
ward, and it was not the duty of the
ballot commissioners to place on the
ticket the names of candidates for an
office in which no vacancy exists.
Col. Caldwell stated that Wheeling's
charter was patchwork of legislation.
and he read from the several acts in
cooperating the city, the provisions
with reference to filling vacancies in
Council. 1t was expressly stated. over
and over, that Council shall elect. and
the tenure OF Office is never expressly
limited in the acts If II was n,aap+