The daily exchange. [volume] (Baltimore, Md.) 1858-1861, 1859-12-09


Mr. Turner, the petitioner, has any right whatever
or any color of title, to the office which he claim:
at your Honor's hands? On this the language o
the l4th section of the 4h article of the Consiiu-
ton is plain and unambguous 1t is as plain as il
could possibly be defined, to show when his office
! shall commence and when it shall expire. In the
| case of Owens Us. Thomas, it was decided that
! when the commission has been issued to the new
successor (and he has bonded and been duly quail
fed in terms of law it requires no act for him to
invest himself with the power appertainng to
that Office The language Of the Court of Appeals
in the case above referred to, was very full on this
point. The very moment Mr.. Gather gave bond,
required by law, and took the oath of
Office, he invested with the powers and
chargeable with the responsibilities of the
office, under the Constitution of the State
OF Maryland, and his Honor had no right to question
his coming here. Mr. Gather came there by the
same commission he did hmself-and is that
commission to be disregarded in any collateral
manner? The House of Delegates was the proper
body to whom this case OF contested election could
properly be referred. Mr.. s. referred to Gill Il
johnson, p. 27S where this question up in the
case of Wayman and Bowie. This case had refer
ence to the tenure of office, which was one year,
where the party held over after his term had ex-
PRED and, in consequence his bond had become
null. The petitioner asks to be restored back to
an office of which he cannot legally be the incum-
bent. His bond is null; and therefore Mr. Gather
had right to come and take the office without
asking any one. If he came there with violence
question for the Criminal Court; but if he
came there with a strong hand, and had taken hold
Of this party Mr.. Turner) holding over, and had
pushed him out of the office, and had kept
him out. | say he had a right by the
law of the land. He has right to
stay in and defend the position of that office, and
take charge of the archives books and papers of
the Office; and say that can show law enough
that he might have defended it against any power
that should come for the purpose of ousting him
THE case of Hyatt and Wood, of New York-land-
lord and tenant-was referred to. Gather holds
the Office of Clerk of the Circuit Court of Baltimore
city, which he could show by an extract from the
minutes of this Court, recognized as such both by
his Honor and Mr. Turner. Justices of the Peace,
COnstables, and any other officer might hold over
dd hbltUm, on this principle until this thing would
branch out to a dangerous and inconvenient extent.
Mr. s. referred to another in which party
was elected, but the incumbent held over, and on
being brought before the Court of Appeals, that
body decided that the incumbent although he
did not enter upon the duties of his office until the
month OF April was, de jWre, the officer, and enti
tied to his salary from the date he bonded and
qualitied-the month of February Suppose
that Mr.. Turner should come to Honor
and bond as Clerk, would you oppose that bond and
recognize him as Clerk of this Court, alter the
fact that another person has presented his commits
sion and been received? The Bank of Gettysburg
referred to, where the Court decided that
he was bound to respect the commission and author
itv of the Governor. The commission of Gather
prima tdcie evidence that he entitled to
the Office. Whether Mr.. Gather elected duly
or not, the Constitution had repOsed that power in
the House of Delegates, and this Court had no
power whatever to decide the question whether he
really elected not.
Judge krebs said that was not claimed, although
he would be glad to hear the argument
Mr.. Schley referred to a case in the 2Sth Pennsyl-
vauia Reports page g. and another in Robertson APP
peal Cases, in the of Flemming Dunlop, page
573, argued in the House Of Lords, in relation to
two parties, both claiming the Lord Provostship
of the city of Glasgow, Scotland, to show that
l.,I l,nt,,, 81 hrg
pension and interdict. He referred to another
which occurred in Charlestown, where a, man owned
a considerable amount of property, and went away
and not heard of for long time, and under
the suppOsiiOn that he had either been drowned or
dead his whole estate and effects were sold and
distributed-at length the man came back, and
claimed his own. The carried to the Su-
Preme Court, and they decided that no admnistra-
tion jurisdiction could be had unless the man
were actually dead. He referred to this for
the purpose of showing that the returns Of the
Judges of election to the Governor are to stand as
true, unless and until they investigated by the
House of Delegates and proved to be otherwise.
The Governor was bound to assume them to be true,
and it his duty to issue his commission. He had
no right to hear a protest from Mr.. Turner or
anybody else, and his commission was valid au-
thOrity for Mr.. Gather now to come forward and
claim the office. The language of the 30th section
made that plain. 4 Sylvan's Reports p. 81, were
referred to in support of this. Swann's Tcnnes.
see RcportS,p G9-ConstitutiOna Reports of South
Carolina, p. 6l2-l0 Massachusetts, Reports, p. 620
S Ifumnhries' Tennessee Reports, p. G25. Mr..
Turner did not come there even the representa-
tive of the insultcd public, but came there on the
foundation of private right asking tho Office and
the profits and emoluments The cases in 10 Wen
dali, p. G9S-Chinnango Insurance Company
COwan, p. lj3-2l Pickering p. lis Hill, crPdrfe
Heath, p. ~, were alluded to. With regard to
contempt of Court. his Honor would observe that
the petition does not profess to be an application
made upon this ground at all, but was based
upon the ground of private right. lie docs not
come before you, and say that your official dignity
has been trespassed upon. Mr.. Schley revered as
greatly the sanctity and hOHOr of trespass of law
any man could but while thus strong an advo-
cate for the preservation OF the forum from pOllu-
ton and insult, he should like to see proper case
presented for the interpoSitOn of the Court before
they could attempt to hold citizen responsible
for such a construction of his conduct. Public
feeling was in favor of this, and Congress and
Legislature had spoken in no doubtful terms on
this subject, and there must be something done
within the purlieus of the Court to constitute an
interference with its rights. Mr. Gather only took
possession of that with which the Constitution in
vested him. He came in a peaceful manner,
and took possession of the office 1t was his his
duty to come and take possession. His bond was
liable if anything had gone wrong during Mr..
Turner's occupancy after he (Mr. Gaither) quail
fed. Mr.. Schlev said he was weak enough to say
that, if he had been in the situation of Mr.. Gather,
he should have gone into the office and taken pos
session of it peaceaby but when in, if any physical
have resisted unto the death; and the law of the
land would have Justified him in doing so. He re-
ferred to Wilc0ck'S Municipal Encorporations,
where the doctrine was asserted.
Judge Krebs.-Do YOU consider that law as ap-
plicabe as well to take possession of the property
of the Court as Of that of private individual?
Mr.. Schley-Much more so, your Honor. In the
case of public officer no ceremony is necessary
| at all.
After some further remarks on the same subject,
Mr.. Schley stated he had closed his argument.
Charles F. Mayer Esq, on behalf of the petition
J er, Mr.. Turner, stated he was ready to 90 on if
his Honor should order it, but owing to the late
ness of the hour Tone o'clock he would prefer that
the should be adjourned until to-day.
Judge Krebs, after some consultation with both
counsel, agreed to adjourn the until this morn
ing at ten o'clock.
Reported for the Daily Exchange.
TowSONTowN, Dec. 8.
CrRcu1r CoUnr BALTIMORE CoUNrY.-Before
Hon. Judge Price.
Richard j. Cuttings, E,q., Attorney for the State,
prosecuting.
The case of the State Us. VIM. Emmitt alias VIM.
Hart charged with the larceny of one cap, two
hats, one coat, pair OF shoes and an umbrella, the
property of Mrs KOahler and A. Burnett, residing
at No 1GG East street, Baltimore, alleged to have
been stolen on the oath of June, 1859, again
resumed this morning, and the case argued before
the jury; who, after absence Of some ten minutes,
returned with a verdict of "guiltY." Not sentenced.
State rs. George Melton, indicted for keeping a
disordery house in New Market, Baltimore county.
Verdict 'not guilty" Mr.. Borman for the defence.
The Court adjourned until tomorrow morning at
the usual hour.
SUPREME CoURr oP ruE UNITED SrArEs.-Decem-
Der I, lS59.-Present as yesterday, and Mr.. Justice
Mclean.
On motion of Hon. w. p. Fessenden, Marcus P.
Merton, Esq, of New York, admitted attor-
nev and counsellor of this Court.
On motion of Hon. George Z. Pugh, Hon. G. C.
Clay, Jr., Of Alabama, and on. C. j. Faulkner, OF
Virginia, were admitted attorneys and counsellOrs
of this Court.
On motion of H. r. Gamble, Esq, Hon. John
w. Noell, of Missouri, was admitted attorney
and counsellor of this Court
On motion of Hon +. p. Stanton, John l.. 7.
Sneed, Esq, of Tennessee, admitted an attOr-
ney and counsellor Of this Court
No. 3. Dalton US. the United States; No. 81.
Fuentes us. the United States; No. Al. Palmer Us.
the United States: No. g. the United States Us.
Feschmaker; and fftyfour other cases, all Of them
being appeals from the District Courts Of CalitOr-
mia. The motion of Mr.. Attorney General Black
for a rule the counsel of the claimant in each Of
| these cases to file his warrant of attorney was OF
! dered to be set down for argument on next Friday
! the 9th instant.
| No 2 Ransom Gardner cfdl, plaintiffs in error
| ps WIN. s. Moss ct al. This cause was submitted
to the consideration of the Court the record and
printed argument by Mr. Seward, fer the plaintiff:
| in error. ..-.
Nor4 Reuben Middleton plaintiff in error, rs.
| Wm. McGrew. This cause was argued by Mr.
Hughes for the plaintiff in error, and submitted OF
| printed argument by Mr. Ballinger for the defen
| dant in error
No 5. George Bohdies, late master and part ow
ner Of the steamboat "Kate" &C., applicant, as
! James p. Sherwood et al. This cause was submit
ted to the consideration Of the Court the recorC
and printed argument by Messrs. Sherwood anC
| VIM G. Hale for the apppllauts