The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1867-08-06

4
Samuel P. -Hawver and others, OF
Greenbrier ounty, ,ton the 18th OF May,
1868, Instituted suit in the Circuit Court
of said county against Archibald Sell
denridge and others, to enforce specific
execution of a contract for the purchase
of tract of land. Asubp9na was reg
ularly Issued by C. "A. Stuart, Clerk OF
the Court, and executed by the Sheriff.
No exception was taken TO the jurisdic-
ton of the Court, but both parties sta
ited their case upon the merits and pro-
ceeded to take depositions. The cause
stood upon the docket at the April
Term 1868, and by order of Court, was
stricken therefrom, on the ground that
the Court in which the suit was brought
was in rebellion against the United
States, and therefore had no rightful
jurisdicuonto do anything. Fromthis
decision of the Court, Hawver appealed.
The Judgment of the Court below was
affirmed, s.t.. srs--r la1 d. .al.
1t appears from the records In this
cause that Samuel p. Hawver and 9th :
ers. on the 18th day of May, 1868, sued
out OF what was claimed TO be the
clerks ofiice of the Circuit Court of
Greenbrier county, subpoena In
chancery against Archibald Seldom
ridge and others. This process was
signed by Charles A. Stuart as clerk,
| and was made returnable at rules on
the first Monday in June next thereaf-
ter. On the said first Monday in June.
| the said HawVer and others appeared
at rules and filed their bill against the
| said SeldonridTe and others, who ap-
peared at rules in September following
and filed their separate answers TO the
said bill. No further proceedings
seem 10 have been taken in the
said cause, except that some de-
positions were taken, until on the
| i2th day of April, 1866, when the fol-
| lowing order was made in the case:
This cause having originated. and
being wholly proceeded in before the
late SO. called Circuit Court of the coun-
w of Greenbrier, q court in rebellion
against the Government of the United
States, having no, legal or political
status or existence, and whose judicial
acts and privileges, (as we'll as othcers,)
whether civil or criminal, cannot be re-
cognized as valid by this court: It Is
Therefore, ,adjudged, ordered and de-
creed by this court, that the institution
OF the said suit, and all the acts and
proceedings had therein, before the late
so. called Circuit Court of the countytof
G reenbrier, are null aud void. And on
sci, Alexander Walker, 1t Is ordered
that this cause be dismissed and
stricken from the docket OF this
court. But this is without prejudice
10 any suit which may hereafter be
brought by either party in proper
court, and leave is given to the parties
TO withdraw any bond, or other orig
inal paper, filed by them in this cause,
by leaving copy thereof, properly
certified by the clerk of this court"
And from this order of the court dis
missing the cause the complainants
have appealed to this court.
The case came on at the last term OF
this court to be heard, and was then
argued very briefly on behalf OF the APP
pellants, but was not agued to on behalf
OF the appellees, no counsel appearing
for them. The questions presented In
the record are not only novel, but OF
great importance in their bearings and
it was Therefore thought best not
then to decide the case as it was
understood that the same questions
would be argued fully at this term in
other cases pending here. me points
arising in the case have at this term
been argued in two or three other
causes, but in such manner as to as
sist us but little in the proper investl-
CATION of them. We do not think 1t
proper that We should any longer delay
the decision of the case for further ar
gument.
upon the ground that "the cause origt-
mated and WINS wholly proceeded in be-
fore the late so-called circuit court of
the county of Greenbrier, a court in re-
belIion against the Government of the
United States" 1t does not appear that
any order WAS at any time made in the
cause by any judge of the courtbefore
the order was made dlsmissing 1t. The
question therefore arising upon the
record is. was Charles A. Stuart on the
18th day of May, 1868, the day on which
the process was issued by him either
de jure or de Idcto Clerk of the Circuit
Court of Greenbrier countyR aa.s
If he was either de jure or de Tdcto
clerk, the proceedings in the cause were
regular, the case properly on the dock
ct. and should not have been dismissed,
as II was, for 1t Is an established princt-
Pile of the common law, well settled by
long and consistent series OF decisions
that the acts of an officer de JGcto,
though he may be ineligible or his title
bud, are valid as far as they concern
the public or the rights of third persons
who have an interest in the things
done. Jenkins Rep. 13l; l Denlo 579;
| l6 Peters II; 5Hill 616; Johns, $40; 8
Wend. 23l; t. r. S66; II Vim. Abr. ia;
HarbauKh Us. Wisnor 3S Missouri r.
327. Er
Was Stuart rtexercising the functions of
an Office either de jMre, or an office de
fdcto, at the time the process was issued
by him? y..-.t. ID, ...-... .-,st.
We must bear in mind that the "Con
stitution, and the laws of the United
states, which shall be made In pursu-
nrice thereof; and all treaties made, or
which shall be made, under the au-
thority of the United States, shall be the
supreme law ofthe land; and the judges
| In every State shall be bound thereby,
| anything in the Constitution or laws of
| any State to the contrary notwIthstand-
lIng," and that at the time when and
before this process issued an insur-
! rection existed In certain States of the
( Union for the purpose of throwing of
laws of the United States. The insur-
rectionists had organized and were at
tempting to set up a government in
lhostilityI to the Constitution and
laws OF the United States, with
Legislative, executive and Judicial de-
, pa rtments, and with officers repudia-
ting allegiance to the United States and
| claiming to owe allegiance only to the
| government which they were attempt.
| ing to set up. Every officer who refused
| to discharge the functions OF his office
in subordination to the Constitution
| and laws of the United States, and at
| tempted to exercise them in subordIna-
ton to the pretending government at
! tempted to be set up, necessarily for-
| feited and vacated his office.
The Richmond Convention, by ordi-
| nance Of April the 18th, 1851, and other
ordinances, attempted to throw of the
allegiance Of the people of Virginia to
! the government OF the United States,
and to, transfer 1t to the pretended gov
! eminent, which was then attempted to
i ho N aRfl NgaFa ySfkhnnt aIl-