Daily Ohio statesman. [volume] (Columbus, Ohio) 1855-1870, 1863-12-24

were absent beyond the territorial limits of
the State, were added to to the votes actual-
ly cast within the county, the majority was
in favor of his opponent.
Mr. Work, who is lawyer of ability, !
honestly believed that the Constitution of
Ohio has limited the places of receiving
ballots to the townships and wards where
the electors actually reside, and that he was,
therefore, duly and fairly reelected. More
over, he believed that the conduct of some
officers in excluding Democratic newspa-
pers from the army, their refusal to allow a
free discussion of the questions involved,
and the coercion that in some cases was re-
sorted to, operated as fraud upon the DEM
ocratic candidates, and was calculated to
endnger the very existence of the ballot
box. Hence he desired to test the constitu-
tionality of the act in relation to the soldier
vote; and this, surely, he had the unques-
toned right to do. nal H.
Perhaps there were several modes in
which Mr.. Work could raise the question of
the constitutionality of the act and his
right to the office, and possibly he might
pursue more than one of them at the same
time. He could proceed by appeal to the
Court of Common Pleas in tine manner
pointed out in the statute. Or, as soon as
his opponent should be sworn and give
bond, he could proceed, presume, by in
formation in the nature of Qato acdrTdnto,
upon allowance of the Supreme Court or
District Court, or any Judge of either. Or
he could proceed by mandamus, either in
the Supreme Court or Distrit Court, to COM
pei the Clerk of the Court to give him n
certificate of election. If he proceeded
only by appeal to the Common Pleas, he
could not expect his case to be determined
there in time to get the decision of that
Court reviewed in the Supreme Court dur
ing its present term. If he proceeded by
qIO lcdTrdRto or mandamus in the Supreme
Court he had no assurance that the Judges
would agree to take his case out of its or
der. and unless that should be done, he
could not obtain decision for more than o
year. After some reflection as to the better
course, and | suppose in order to ascertain
the probable fate, in the Common Pleas, of
the appeal he bad determined to prosecute
in that Court, he made application to me,
as one of the Judges of the District Court
to indorse the allowance of an alternative
nAndamlls, so that he might obtain a GER
tificate of election.
know that it may be said that the appli-
cation of Mr.. Work should have been de-
MED on the ground that had no power to
thus indorse even an alternative mandamus
except after allowance in the District Court.
But the Judges in this District have in sew
cation, do not know whether this was
done because of the somewhat indefinite
language of the civil code, that ''the allow
ance of the writ must be indorsed thereon,
signed by Judge of the court granting
it, or because the power was sometimes
exercised by the president Judge of the
Common Pleas, under the former COnstitu-
ton; or because the Supreme Court had held
that a Judge of the Common Pleas, as a
member of the, District Court, may grant
leave to file an information in the nature of
quo acd1d,ltO, while there is the same con-
stitutional provision with respect to the
jurisdiction over each of these proceedings.
Certain it is, however, that in view of the
precedents above referred to. the question
of power was not even thought of, but the
application was denied solely upon the
ground that regarded that act as constitu-
tiOnal.
informed Mr.. Work at the same time,
however, that / regarded the question as
one of much difficulty, and that as might
be in error, it was his duty to present his
case, in one or more of the ways suggested,
for decision in the Supreme Court.
During the past four or five years | have
occasionally furnished for publication i'm
law journals or newspapers, my opinions
in cases that have decided. AS the qnes-
tion in relation to the validity of the act to-
authorize soldiers to vote, was justly re-
garded one of Importance, | thought it
would not be improper to publish the opinTa
ion that had thus given upon that ques-|
ton. This was not done because regarded
my decisions as authority, / stated in the
opinion ITSELF that ~ know that on ques-
tion like this the decision of the Court of
Common Pleas settles nothing But this is
an important question that oughtto be fully
n,-a,. Il. q. .1 ~ srpsn YaV rtrIn n
cases are the most satisfactorily decided that
have been most thoroughly discussed. That
this question must be decided by the court
of last resort, have no doubt. When we
consider the number Of persons whose cleo
ton to important offices depends OH the va
lidity of this army vote, and that each of
them has the right, on his own account, and
at small expense, to test the constitutional
ity.of the act, it would be strange indeed if
one of them did not carry his case to the
: Supreme Court. And no one, surely, can
be justly censured for such an appeal to-
that court" gU sDI sTlJs 4
AS. have already stated, the application
might have been denied upon the ground
that had no authority, under the circum-
stances of the case, to make such indorse-
ment. But in the multitude of cases report
ed in law books, many hundred of them
would have been upon grounds entirely
different, if other facts, decisive of the rights
of the parties as then presented, but over
looked by the Judges at the time, had been
called to their attention; and that circum-
stance, as a general rule, does not materially
detract from the authority of case. Many
such cases can be found in the reports Of our
own State.
And now I trust that am done with this
somewhat disagreeable business. The deci-
sion has, perhaps, attracted quite as much
attention us its Importance demands and |
write this communication only'to explain
the circumstances under which it was made,
and not to defend the views there stated.