The national Republican., 1867-08-06

In CHANBERs-Before Judge HIieH-l
State Of Ohio, at the relation of BENZ r. Cowen,
vs. james 9. Wetmore. This case comes up on
rule to show cause why a mandamus should not
issue against the defendant, directing him to de-
liver up the archives Of the Ohio State agency at
Washington to tho Adjutant General Of that
State.
Col Hinkle appeared for Gen. Cowen and Mr..
Riddle for the defendant.
Mr.. Riddle, for the respondent, moved to dis.
charge the rule upon the following grounds:
1. Because there Is ne sufficient matter Of law
set forth In said petition.
2. Because there Is no authority to make the
State Of Ohio party, and the State Is not prop.
ery made party.
8. Because tho Court has no Jurisdiction Of the
subject.matter Of the petition.
4. Because, by the showing Of the petition,
neither the State nor the Adjutant General Of
the State Is entitled to o mandamus.
On the first point Mr.. Riddle said that the
| petition showed that the office Of Mr.. Wetmore
was that Of q gentlemen accredited, 1t may be
by the State, but the functions of which was tn,
transaction Of the private business Of private in
diyiduals; that the books and accounts Of thi
private business could not be public property.
On the second point he quoted IS Howard
373, State Of Pennsylvania VS.. the Bolmon
Bridge Company and "a Howard, SO, the State o
| Kentucky VS.. the State Of Ohio, as showing that
| the Governor or Attorney General were the only
proper representatives Of 4 State in the Fedora
| courts.
As to the third point the petition alleged that
his authority from an Ohio statute. Then the
court could not be called on to enforce an Ohio
| statute in the District Of Columbia
On the fourth point Mr.. r. contended that as
tho statute from which it Is alleged the relator
derived his authority prescribed, tho agency
should close on the LIST Of October next, and that
then the papers relating to all HufRi,hea bust.
| ness should be carried to Columbus, even II the
| court held that the parties wero properly before
It, and that 1t could enforce Ohio statutes. Cor.
tainly on that statute no action In this matter
could be had until the period prescribed by the
statute had passed. Even then, If the Adjutant
General could prove himself to bo the proper
party, replevin, not mandamus, would be his
remedy, and he could ask only for papers relating
to the unfinished business Of the office.
Col. Hinkle argued that as Mr.. Wetmore held
his agency by appointment of the Governor, 1t
was q familiar principle Of law that the agent
could not dispute the authority Of his principal.
Hence Mr.. Wetmore was estoppod from disput.
ing tho right of tho Governor Of Ohio to control
the Washington agency and its archives. The
authorities quoted by Mr.. Riddle as to his Sec
ond point were In cases where the causes came
on by original bill, and not by mandamus or
other proceeding in which a relatOr was necessa'
ry. The Federal courts allow the States to
choose their own method Of appearing Now
the State of Ohio had always appeared by q re.
lator. A case in 9Th Ohio Reports was quoted to
sustain this view.
Col. II. proceeded to argue that the State was
properly made party, and that the court had
ample Jurisdiction in the matter, because Mr.
Wetmore had in his whole agency represented
the State of Ohio; had received its pay used its
stationery, and had the assistance Of its clerks.
As we'll might the clerk of the court claim the
archives Of the court as his private property be.
cause he made them, as this agent claim the
archives Of his agency,
Adjutant General Cowan was the authorized
party to sue because upon the resignation Of
Mr.. WetmOre he became, by executive appoint.
ment, his successor.
Col. r. proceeded, arguing the propriety of the
mandamus,
The court said that the question at issue was
obscured by the want Of any information as to
what the archives of the Ohio State Agency con-
sisted Of
Col IL said the mandamus was asked to cover
all the books and papers Of the agency not the
private papers of Mr.. Wetmore.
The court took the papers and reserved its de.
cision.