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

Responaents' Counsel Took Posi-.
ton That the Proceedings Were
Improper, and the Petition Should
he Dismissed.
The arguments in the matter of thu
petition OF the old Board of Publ,
Works for a writ of mandamus tt
compel the new Board to surrender
possession OF the Office, were made be
fore Judge Hervey in the Circus
Court yesterday morning, and wer,
heard by a large audience. The pc,
titioners were represented by Cald.
well & Caldwell, and the respondents
by City Solicitor John ]. Conif and
Henry Nj. Russell.
The respondents demurred, and a
the same time filed their answer to the
!, bill Of the petitioners. The answer
denies the truth of the averments il
the petitioners bill, as to facts which
are material, and makes a statement
of what actually ~transpired on the
morning of February 9th, when the
a%bsentees were arrested and brough1
into the Council chambers to com
plete Z quorum in each branch. The
arguments were upon the demurrer
These occupied the entire morning
and Wien concluded Judge Hervey
took tie matter under advisement
stating that he would render his de
cision after examining the authori.
ties Offered by counsel.
The respondents take the position
that mandamus is not the proper pro
ceeding, but that the petition should
have beel. for a writ OF certiorari. Il
is probable that counsel for the petit
tons were somewhat surprised at thu
position taken by Messrs Coniff an(
Russell. II the Court sustains the de
murrer, it will involve the dismissa
of the petition, in which event the at
torneys for the old Board may petit
ton for a writ of c~ertiorari, or ma,
appeal 10 the State Supreme Court
If the demurrer is overruled, the ques
ton of fact will enter into the mat
ter, and evidence will be taken.
The opening argument was made b.
John J. Coniff, upon the demurrer b!
respondents. He spoke briefly, TAX
ing the position that mandamus i
o. the proper proceeding. The peti
TONERS must ave. a particular thin;
and not G, complete state of affairs
To entitle a party to a writ of manda
mus, he OF they must be dispossesset
of a clear legal right to the exercise
of an office or a franchise, and to hav'
no other legal remedy by which t.
compel performance. 1t is a decisive
answer to an application for a man
damus, that there was or is anothe1
remedy, by Information in virtue O
a writ Of quo w%arranto. The title t.
offices being the thing in dispute, i
cannot be alleged to be clear, and b.
at the same time disputed by manda
mus.
Mr.. Coriff gave ten or twelve decis
ions Affecting the case. and quoted {
number of authorities, all of which
were submitted to the Court.
Col. George B. Caldwell followed Mr.
Conif. He said Mr.. Coniff appeared
to think the object of the proceeding
was to review the action Of Council
but petitioners claim that Council die
not act at all. There was nothing il
the case in the nature of an appeal
and he therefore thought Mr.. Coniff'
authorities had no bearing upon thu
litigation. If Council would act, Mr.
Caldwell said he would not have beer
in Court. The petition AYERS tina
there was no action by Council. Til,
Board Of Public Works claimed to b
acting under a right exercised b,
Council; whereas, Council had no
acted, and the new Board had givel
NO bond.
Col. Caldwell took the position tina
the bonds were declared to be APPROX
ed, when in fact they were not, mas
much as the approval of both branches
is required before they become effec
tive. The part which Chief Ritz took
he referred to as government by thu
police, without writ, law or appeal t.
the Courts. The petitioners did no
resist the nocturnal d~epredations o
Chief Ritz and his men, when the.
took possession by force.
judge Hervey interrupted Col. Cald
we'll with a statement that he did no
care for the facts In the case, Blu
simply wanted the law.
Mr.. Caldwell thought the manner il
which the proceedings were brough
was proper, because the petitioners re
present a single body. 1t was in the in
terest OF public justice that the mat
tiers should be welded in one case
and he could see no reason why thu
| Court should S~J1Stain the demurrer M