The times dispatch. [volume] (Richmond, Va.) 1903-1914, 1911-12-14
CONTEMPT RULE
AGAINST BOARD
Validity OF Carrington's Second
Removal Will Be Argued
Next Monday.
NOW ASKS FOR HIS SALARY
Mandamus Proceedings Heard
by Judge Scott, Who Will
Decide Later.

For the purpose of testing the
validity of the action taken by the
board of directors of the State Peni-
Tertiary last Saturday in removing DR..
G. V. Darlington ny surgeon of the
| prison after he had been rcnstated by
the court, Il rule was issued yesterday
by Judge r, Carter Scott In the City
Circuit Court, summoninG the members
OF the board to appear next Monday
morning at o'clock to show cause
why they should not be fined for con-
tempt. The summons was accepted by
| Richard Evelyn Byrd as attorney for
the board, which viii appear and con-
tend That It's last action was legal,
and that II Is therefore not in con-
tempt
Another phase OF the contest was
argued at length before Judge Scott
yesterday afternoon as to the granting
OF mandamus requiring the payment
Of the salary. Judge Scott took time
to consider. DIR. W. T. Oppenhimnr.
who has been the de facto surgeon Of
the prison since November l, was paid
for the month OF November by the
state Auditor yesterday
AS the situation stands. DR.. Caring
ton was summarily removed on Oc-
tober 81 by the prison board: that ac-
ton was declared void and of no Of
feet by the Circuit Court on the ground
that he was not given n proper notice
or hearing. Before the nve-day stay
allowed for appeal expired the board
served notice on DR.. Darlington. and
on last Saturday afternoon had for
NAL hearing and removed him for the
second time DR.. Darlington Offered
his services at the prison and was re-
fused admission Contcnding that his
second hearing and removal was IL
legal, In view OF the order of rein
statement. and pending an appeal IN
that order, DR.. Darlington, through
Attorneys Thomasson. Minor and Miles
NJ Martin, applied for and obtained
the rule citing the members OF the
board to appear Monday In contempt
proceedings.
Petition for 1Inndumus
The hearing yesterday afternoon was
prolonged and intricate, DR.. CARING
tons attorneys asking for mandamus
to compel Auditor Donohoe to pay
DR.. Darlington his full salary since
November 1. Attorney General Samuel
w. Williams and Richard Evelyn Byrd
appeared for state Auditor Donohoe.
Judge Williams contcnded that it
was proper for the Auditor to recog.
niZe as legal and binding the action of
all public officers and boards until IL
We're shown to bc otherwise. and the
prison board having removed DR..
Darlington from Office on October 81,
he contended that the Auditor was
fully justified in Withholding further
payment of salary after that date, and
in making payment to the acting or
actual surgeon at the prison, Dr.
Oppenhimer. Mr.. Byrd went further in
his argument stating that the General
Assembly had set apart $500 specifi-
cally as an appropriation for this an
nual salary of the prison surgeon, and
that neither tho Auditor, the prison
board, nor, in fact, any court or the
Governor, could legally exceed such
appropriation. He protested that to
grant mandamus compelling the
Auditor to pay out an amount which,
in view OF the months pay already
made TO Acting Surgeon Oppenheimer,
would he in real fact IN excess of the
total amount appro riated for payment
of this account by the Legislature,
would be TO set most dangerous pre-
cedent. and might result in all man
ncr of inroads on the State Treasury
through the guise of court orders. even
though the Legislature had made no
appropriation a ALL
Martin Answers Argument.
Major Martin, in his reply for DR..
Darlington, took the ground that since
the court had already held that the
cormer action OF the prison board in
removing DR.. Darlington was void and
of no effect. there could be no ques-
ton but that his client was the
surgeon OF record until last Saturday,
and 80 entitled to his pay, whatever
the court might hereafter determine
about the validity of tho removal pro-
ceedings on last Saturday. According
to Major Martin, II the Auditor had
made improper payments to somo other
physician out of this appropriation
his client should not be made to suf-
| fer therefor--the Auditor might sue
| to recover the amount paid to DR. OPP
| penhimer. or let the loss fall on the
| prison board whose action had re-
| suited In the tangle.
Counsel for the State In answer took
! the ground that the Auditor had been
/ correct in presuming that the action
| OF the board was legal until proved
| otherwise that his payment had been
J made to the actual surgeon who had
| rendered the service, and that II DIR.
| Darlington were not satisfied his re-
! course lay in a personal suit against
| DIR. Oppenhmer, not a claim against
! thu State