Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1901-05-29


The mandamus proceedings in the
Circuit Court ended yesterday, when
Judge H. c. Heryey decided against the
petitioners in the only point remaining
which he had not previously decided in
favor of the defense. His decision car
ries with 1t the dismissal of the alterna-
tive writ, and ends the proceedings, in
so far as the Ohio county courts are
concerned.
Whether or not the petitioners, the
old Board of Public Works. will carry
the matter to the State Supreme Court
Of Appeals. remains to be seen. The at
torneys for the petitioners have except
ed to all the ADVERSE rulings by Judge
Hervey. during the proceedings, and
have filed a bill of exceptions, and been
granted a stay of sixty days.
Only a few witnesses were examined
yesterday morning, and their evidence
~corroborated that of the other Demo-
Gratis and insurgent Republicans.
The first witness was Jacob Ritz, who
testified that r. T. Hill did not ask for
the negative vote on Hazlett's motion
to adjourn, and ignored the protests
from the Democratic side of the house.
d. B. Lavey and w. r. Coey testified
to the same facts. P. J.. Scally. mem
Der of the First Branch, said he was
sent by the Mayor to notify the Second
Branch that a motion to adjourn was
pending in the First Branch. He made
no formal report when he returned. A
discussion was in progress in the First
Branch Chamber.
Capt. W. S. Otto, Republican, said
Scally came back and made a report to
the Mayor. Witness then made a mo-
ton to adjourn and Mr.. Chew made
motion.
No other testimony was offered. Col.
| George B. Caldwell announced to the
court that tnere had been an agreement
by both sides to submit the matter
without argument.
Judge Hervey gave his decision at
once. He said he had anticipated thai
some new feature would be introduced
into the case at the hearing, but as it
was not, he was ready to give his de-
cision. The case had been narrowed
down by the pleadings TO a question of
fact as to the adjournment, and wheth-
er or not a joint session had been held.
There could be no controversy as to
| whether the First Branch had adjourn
ed. There might be room for c%ontrov-
ersy as to whether the Mayor acted
within the rules in refusing to enter
tain a motion to adjourn, but that was
not a question for the court to pass up
on.
The only controversy conferred in
what actually took place in the Second
Branch. Judge Hervey said it was un-
necessary to review the testimony. He
said that there could be differences of
| opinion as to what occurred, and that
under the circumstances the facts might
have been presented to different per-
sons in different lights. 1t was quite
clear, however. that when President
Hill put the motion to adjourn. he was
or ought to have been aware of the pro-
tests by n faction.
The presiding officer Of a deliberative
body has no right to determine the re-
suit Of the vote upon a motion. lie
acts simply as the mouthpiece of the
body, and certainly has no right to de-
clare a motion carried without its be-
ing the win of the body. The evidence
showed that protests were made before
the motion to adjourn was declared car
ried. and whether or not the President
misunderstood the exact form in which
they were made, he knew the protests
were against the proposed adjourn
ment.
A majority of the members remaining
in their seats furnished proof that the
accession upon the question OF adjourn
ment was not the will of the body.
Their right to refuse to recognize the
action of the President, and to con-
tinue to transact business, is indisput-
able. Consequently the Second Branch
was not legally adjourned, and the
joint session was legally held.
A motion to set aside the finding OF
the court was overruled and an excep-
ton --.en.
An ercenfi0nal a0cr n LndIea,