The free lance. (Fredericksburg, Va.) 1885-1926, 1904-10-20
THE CASE OF MAYOR WALLACE.
Judoe Embrey's Reasons For Dscid-
ina in The Mayors Favor in The
Quo Warranto Proceedings.

Judge 4 n. Embrey, of the tOrDorn
ton Cnurt. in announcing his declriOu II
favor Il Mayor Thor T. Wallace la III,
uuo wArranto proceedings. gives hit
rrason for 70 declding in the following
which is taken from the Court records.
This a proceeding by the Common
wealth To test the right OF Thomas !
Wallace IA Mayor Of fredericksburg 10
appoint standing Committees of the
Council OF Fredericksburg, and to cast
"a deciding vote for the presiding officer
of the said Council Al its organiz alton on
Sept. lst, 1901. there being "A tie vote
at said meeting for the Presidency OF the
said Council; six votes being f"r +. ID
Cole for president and six votes being Tor
:. ". Somervile for president.
The rights of the CommOnwt aith u
maintain this proceeding, IL any 1t has,
Ia based in sub section /. section 3O22, OF
the Code OF Virginia, which says that
writ Of quo warranto may be awarded
and prosecuted in the name OF the STATE
of Virginia against any person who
shall intrude into or usGrp any public
office.
The petition for the writ filed in this
cause admits that the respondent,
Thomas Z. Wallace, was duly elected to
the office of Mayor Of fredericksburg and
duly qualified as such.
Section | Chapter Mil, OF thu Ordl.
nance of fredericksburg authorizes ana
directs the Mayor "i1 the month OF Jnly
following his election, tn appoint ihe
standing Committees OF the tit! Conncil.
An act TO amend the Charter I Fred
erickshurg. approved March I'D. 1871
Acts 1S7O7D, paragraph ! a.d page
2GG. says the Mayor shall, in ca OF tie,
give the casting vote upon all questions
10 be- determined by the Council.
BY section / II Of the Constitution OF
Virginia and Acts OF the Genera Assem-
bly, Of Virginia, 1902 3 1. page IL and
page $50, each OF the cities and towns OF
the state are authorized 10 retain their
municipal charters, except 30 lar a. the
same shall be repealed or amended by
the General Assembly, provided that
every such charter il hereby amended 30
as To conform with all the provisions,
restrictions, limitations and powers set
forth in this article or otherwise provid-
ed in this Constitution.
Whether the ordinances OF the city OF
fredericksburg or the charter amend
ment in the Act Of March 23rd, 1871, be
amended by section ! II Of the COnstitu-
ton and by Acts 1902 3 (, p. p. IA,
sS6 ~ 10 the right of the Mayor Of
Fredericksburg. as such, TO appoint the
standing committees OF the Council, or
AT the organization meeting of the said
Council, TO cast vote IN case OF Tie, II IL
not necessary in this proceeding TO de-
termine. The respondent as Mayor OF
fredericksburg, believed that, ~ such,
that power was conferred upon him by
law, and whether that power b. reposed
10 him or not. surely his exercise, or at
tempted exercise, OF the power is not an
intrusion into or usurpation OF any pub
lie office, az contemplated by sub section
( section 3O22. OF the Code OF Virginia
QUO warrantO will not lie To test the
legality OF the official action upon the
part OF one whose right TO exercise the
powers of the office are not in is-ne.
% Am. Eng Enc l.. 2Ed, p G32.
Sinclair W. Young, 100 Va 80.
Bland and Gile Co., Judge csse, 33
Graft 1873
For these reasons these petitions must
be dismissed.