Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1901-03-29

bean COMPLIED vith. coL calanell
also referred % Rule A, of the Rules
Of Council. and argued that the ap-
proval OF bonds Is business requiring
the concurrence Of both branches.
He held that Mayor S~weeney's action
In refusing to entertain an appeal
from his decision, on the question of
approving the bonds In the First
Branch, was illegal.
Gen. Alfred Caldwell followed in an
argument for the petitioners. He
held that the authorities referred to
by the respondents had no bearing up
on the matter. The only question was
whether the men who took forcible
possession are in their present places
legally. The petition and facts show
conclusively that there was no action
by Council. He dwelt upon the action
by the Mayor. and the conduct Of Ser
geant Ritz and his men. He said man
damus vas the proper proceeding, and
the claim that a writ of certiorari
would have been proper, was absurd.
The concluding argument for the re-
spondents was made by Henry NJ.
Russell, and it was comparatively
brief. He opened by saying that he
would pass over all critical and senti-
mental considerations, and come d.
rectly TO the petition. He said it
contained averments which were not
true, as would be found If the Court
ever got to the answer of the respon-
dents. The question was as to wheth-
er mandamus is the proper remedy;
whether by mandamus the Court can
review the action of Council. The
petitioners made the claim that there
were no proceedings, no bonds given,
and that therefore the members of
the new Board are usurpers. All this
might be plausible if no attempt had
been rade to do anything, but the bill
of the petitioners shows that there
was at least an attempt to get a quo
rum and to hold a session at the ap-
pointed time.
Mr.. Russell said that a quorum was
obtained, a session held, the officers
were elected, and when their bonds
were sent in the Mayor held that ac-
ton by the First Branch was unneces-
sary. Hence the proceedings were
regular. He characterized the claim
that the men can be ousted by manda-
mus, because the other side alleges
some irregularity in custom, to be abb
surd. 1t would be the same if some
person were smoking while important
action was being taken, smoking be-
ing an infraction of the rules.
Mr.. Russell took up the McAllister
case, which had been cited by Mr..
Coniff, and argued from it that man
damus would not lie in the case under
consideration. The Court must have
perceived from the arguments on the
other side that there was an election,
OF some sort OF an eiectlon. mere
was no question that Council had the
AUTHORITY to bold thee election, which
was legally held, as will be shown if
evidence is ever taken. Ii the Court
holds That it is improper to go into
the regularity or irregularity of the
proceedings of Council, there is moth
ing in the case.
Mr.. Russell briefly referred to the
bond question, saying that a joint
bond was the form required to be
given. She Second Branch approved
it, and the First Branch took such
action rs it deemed proper. The at
tempt 10 contest the decision of the
Mayor was part of the obstructive tao
tics to prevent the election of the re-
spondents. Mr.. Russell concluded his
argument about 1890 o'clock, and
Court adjourned.