Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1901-04-27

Another phase of the mandamus mat
ter growing out of the elections by the
new Council was decided in me Circuit
Court yesterday, and it was another
point in favor Of the Democrats and in
surgents. lne new Board of Public
Works demurred to the replication of
the old Board, and the court sustained
the demurrer. Counsel for respondents
are OF opinion that the decision will
have the effect of settling the matter
in their favor, in so far as the Circuit
Court is concerned.
The decision is in effect an approval
OF the Democratic contention that the
matters avered in the replication are
irrelevant; but it excerpts that portion
of the replication relating to corrections
made in the minutes which Judge Her
vey declared to be good. Upon their
determination as to the effect and sig
niicance of this exception will rest the
further proceedings of the petitioners in
the Circuit Court. In any event, it is
understood that counsel has decided to
carry the matter to the State Supreme
Court of Appeals. Ex-City Solicitor S.
O. Boyce stated late yesterday afternoon
that this course had already been de-
cided upon.
Following is the full text of Judge
Hervey's decision, which was handed
down shortly before noon:
ION demurrer to the reply of the petit
TONERS:
This reply recites events which pre-
cede the meeting of Council February
1921, 1901, and sets out reasons why
certain members did not attend the
meeting announced for the evening Of
February 26, and then proceeds to set
out matters relating to the failure Of
Kiileen TO qualify; his subsequent cleo
ton as Councilman; the number OF
persons chosen to Office by the joint
session and the amounts of their sal
aries; the conaucC of certain persons
who are styled insurgents" the re-
moval of R. =. Hill as president of the
Second Branch; the force used to COM
pei the city clerk to go into the Second
Branch chamber; the manner in which
the police got possession of the Office
room of the Board of Public Works; the
degrees of force used by the police in
getting into the room occupied by GER
tain members Of Council and the con-
struction to be placed on the ordinance
relating to the approval of bonds.
None of these matters as thus set
up in the reply are material to the de-
termination of this case Some of these
events are recited for the purpose of
showing that the responsibility for the
obstruction of public business and the
failure to promptly elect public officers
rests upon that faction of Councilmen
who, on February 9th, compelled the
holding Of the joint session. 1t may be
true that the shortcomings of the men,
beers OF this faction excused those of the
opposing one. 1t may be that they have
fallen far short of fulfilling the obliga-
ton which they owed to the people who
elected them and have been controlled
by desire to see their faction win in
the election of city officers, rather than
by their sense of public duty Indeed
I entertain little doubt that this last is
true. But with all this a court cannot
concern itself. This is matter for
which Councilmen must answer to the
electors who chose them to Office.
1T is urged that some of the irrele-
want matters appearing in the reply are
here in response to irrelevant matters
appearing in the return; are there in
response to irrelevant matters introduce
ed into the case by respondents return
and should therefore be permitted to re-
main. But this is no reason why they
should stand The action of the court
upon the demurrer, in striking out i'm
proper matter in the reply gees beyond
the reply and reaches any improper
matter In the return which is answered
by the averments OF the reply that are
stricken out. This being so the re-
spondents can gain no advantage by the
presence of irrelevant matter in the re-
turn. The only part of the reply which
is good is that beginning on page 81
and ending on page 27-relating to cor
rections made In the minutes.
THE demurrer is sustained as to all
of the reply, except this portion"