Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1901-04-16

refuse to accept the bond Of the Board
of Public Works, which was in every
sense correct. They offered a resolu-
ton refusing to accept the bonds, on
the ground that the selection was IL
, legal. 1t cannot be c~ontroverted that
they haverno right to refuse to accept
the bond unless they. raise a question
as to it's suflciency. They cannot test
the title to an ONCE upon a question
of the acceptance or rejection OF a.
bond.
/ Judge Hervey interrupted with a re-
mark that he thought Mr.. Coniff had
stated what was a sound proposition.
Continuing, MI. Coniff characterized
as far-fetched, the contention Of Col.
Caldwell that the bond is a contract
with the city. There is a specific refer
ence in the act from which Col. Cald-
we'll read, to what shall be done with
official bonds. 1t provides how Coun-
Gil shall approve bonds.
Mr.. Coniff briefly discussed the fail
ure of Councilman Killeen to quail
fy within a certain time, and said that
Col. Caldwell asked for a reasonable
construction of the law in one instance,
and opposed it in another. In conclud-
ing, he replied to the argument of Col.
Caldwell regarding the insufficiency of
the answer, stating that it denies every
fact that is material in the case.
Mr.. Coniff was followed by
Henry NJ. Russell
for the respondents. He commenced by
reading the following extract from the
opinion read by Judge Hervey last
week:
While I an not sure that the opinion Of
Va, ASS, can be harmonized with the Vir-
ginia decisions, I find nothing in that case
which would lead to the conclusion that
case made by the plaintiffs petition. In
State VS.. McAllister the council acted and
passed upon the question of the eligibil-
liz riyh ni to .ne Office RessS was e in diep ut eoq But IN mh tRis
case, II the averments of the petition are
true, there was no action of council. n
the d~eIelQantS without T1Ent thereto
usurped the offices they now hold.
Assuming this to be a correct state
ment of law, Mr.. Russell asked what
the court had before it in the demurrer
to the return. He did not understand
that it was for the court to go I'VE the
proceedings of Council, step by step,
to ascertain whether each step was TAX
en- with formal regularity, nor that it
is for the court to say, If m mis-
step had been taken, 1t renders the ac-
ton of Council nugatory. The ques-
ton is, whether Council has acted;
whether it has undertaken to invest the
respondent with offices whose title is
10Y in dispute. The averments In re-
s~pondents' answer must betaken as true.
They show that Council did act, and
that Is really the end of this case. 1t
Is proper, however, for the court to in
Qnire If the body which acted was read
ly composed of the Councilmen Of the
City of Wheeling.
other Points Involved.
Mr.. Russell said he would go into a
discussion Of other points, out Of cour-
tesy to Col. Caldwell, but he did not
abandon the position he had taken.
He took up Mr.. CaldweH's contention
that there was no iaw to compel the
attendance of absentees. He quoted
from the Act of 1886, a provision CIV
ing members the right to compel atten-
dance under certain penalties" etc.,
and the Act Of 1868, giving the power
to compel attendance in such manner
as Council may provide. Council pro-
vided a method-by arrests.
Replying to the questions of the
court, asked Of MI. Coniff, concerning
compulsory attendance at joint sessions,
Mr.. Russell said the Rules Of Council
provide for not only bringing absen-
tees in, but compelling them to assist
in the transaction of business. When
the First Branch goes into a joint ses-
sion, it ceases to hold its session in the
First Branch chamber, and has a right
to compel members to 30 to the Second
Branch chamber, and to remain there
until the joint session is dissolved.
He quoted the provision in the rules
that the Second Branch shall give
notice that it is ready to 60 into joint
session; whereupon the First Branch
shall go Into the Second Branch
| chamber, etc. No action of the First
Branch is required, except the receipt
| OF notification from the Second Branch.
Not only has Council acted, but the
respondents have properly qualified.
The same rule applied, Mr.. Russell
Lsaid, as applied to the courts right to
| review the action of Council. Col.
| Caldwell relied upon the statutes apply
| ing to contracts. Mr.. Russell discuss
ed the question of approval of the
bonds at some length. Mr.. Russell said
the respondents had taken up specific
| ally, and answered fully every mater
ial allegation by the petitioners. He
A. - 49,