Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1901-04-12
DEMURRER OVERRULED.
uyrnsE HERvEY RENDERED.
WRITTEN OPINION YESTER-
DAY MORNING.
VICTORY FOR THE OLD BOARD
The yext step VIII Probably be the
Hearing of Evidence Toucnins
Upon the Facts Alleged IN the NH
Of the PetitiOners-Full Text OF tine
Written Opinion by Judge Hervey.


The old Board of Public Works has
gained the first victory in the legal bat
tie which was Instituted in the Circuit
Court. Judge H. c. Hervey yesterday
snorning oyerruled the demurrer to the
petition for the writ Of mandamus.
He rendered his opinion in writing
setting forth his reasons for holding
that mandamus is the proper remedy
and not certerori as claimed by the
Democratic attorneys. The decision
was rot announced from the bench, but
type-written copies of the opinion were
sent to Col. Geo. B. Caldwell and Mr.
Henry M. Russell, counsel in the case
for the old and new boards respectively.
The next step in the matter VIII
probably be hearing of the case upon
its merits. Messrs. Russell and Comm
filed their answer to the bill OF the
petitioners at the time they demurred
to the writ Inasmuch as the answer
f7atly contradicts the averments of the
petitioners upon very material points,
there will probably be considerable
testimony offered touching the facts in
the case.
No time has been set for this pro-
ceeding, neither the court nor counsel
having indicated a desire for any par
ticular time. Inasmuch as the situa-
ton at the City Hall is badly mixed
pending determination of the manda-
mus proceedings, it is likely that
very early date will be named.
Following is the full text of Judge
Hervey's opinion:
Henry SChmulbach and Others VS..
Joseph Speidel and Others. Man
damus:
The defendants, Joseph Speidel and
others, demur to the petition and
move to quash the alternative writ on
the ground that the facts set forth in
the petition on which the writ was is
sued do not show proper case for re-
lief by mandamus.
by the demurrer and motion to quash,
the court looks, of course, only at the
averments of the petition and does not
indicate any opinion as to the merits
OF the case.
1t is contended by counsel for de-
PENDANTS that mandamus Is not the
proper remedy for the wrongs COM
planned OF by the petitioners; that
while title to Office may be sometimes
tried by mandamus where the right to
the Office is clear or has been ascer-
tanned or where the legal eligibility of
the holder or person seeking posses
sion of the Office is the question raised,
yet mandamus cannot be resorted to
for the purpose OF trying title to Office
where the court must, in arriving at
conclusion, review the action Of the
body making the election, as the city
council in this case.
1t is urged that II the court under
takes to determine the right Of the pc
Gtioners to the Office hey claim it
must review the proceedings had by
council Of the city OF Wheeling and
pass upon the regularity of those pro-
Cecdings and that this case can prop
erly be done only by certiorari. In
fhe argument of the case it was not
tontended that the facts set out in the
petition did not entitle the petitioners
to some relief, but it was said that
they had mistaken their remedy.
The petition AYERS facts, which, if
true, show:
l. That the petitioners were duly
qualified and acting members .of the
Board Of Public Works.
q That the defendants, Joseph
Speidel, Charles Menkemeller and
Charles w. Krieter were not elected
members of said board.
8. That said defendants, with the
aid Of the defendant, John S. Ritz,
have forcibly taken possession of the
office of the Board of Public Works
and of certain books and papers be-
longing thereto and, with the assist,
ance of said Ritz have since they Sc
cured possession, retained control of
them.
That mandamus is the proper pro-
ceeding by which to try title to Office
has been long settled in this State. |
have not been able to discover in the
decided cases any such distinction as
that contended for by counsel for de-
PENDANTS, to the effect that the court
will not pass upon the title to Office in
proceeding by mandamus where it is
necessary to review the proceedings