Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1868-10-23

The Contested Election Case.
The preliminary motion for an injunc.
ton against the present Mayor and City
Council, 4so-calIed, filed BY citizens Of this
city, was taken up in the Chancery Court
room, before Judge Shsckleford, and ably
argued by Messrs. cOlyar and Brown, for
the complainants, and Messrs. East and
Baxter for the defendants.
Colonel Colyar read the bill praying for
the injunction. Hr'.ll s.'.sr os
Judge Shackleford said that he had not
examined the mode of contrasting elections,
but in a matter of such great Importance
as this, be would not hear the bill argued
upon a mere erparte examination without
allowing the defendants to answer, unless
the bill was filed. Governor Brown stated
that the reason the bill had not been filed
was because ne (Shackleford) had informed
them when they called to confer with
him in regard TO the subject, that 1t was
not necessary that the bill should be filed
by them. f'
&. Mop. Smith then read the answer
and demurrer prepared by the counsel for
the defense They say in that demurrer
that Alden owns real estate, and that the
members of the City Council we're qualified
TO hold the offices which they now have
possession of; that they had not conspired
with Hopkins in any of the frauds and cor
rupt motives used by him in the election.
They furthermore say that there we're no
frauds committed on the election day.
Hopkins denies, in that answer, that his
candidacy had any influence with his con-
duct as Commissioner of Registration. He
also denied having committed any frauds
in the election, and that he had acted with
the utmost impartiality. But two lawyers
from each side were allowed to argue the
bill, as Judge Shackelford wished to go to
ClarksvHle on the evening train.
Col. A. s. Colyar opened for the COM
plainants with fine argument. His
speech was listened to with rspt attention.
He made full, explicit plea, in behalf Of
the citizens, plainly showing how they had
been wronged and how they were COM
PEELED to seek redress through the courts.
The following is the demurrer offered by
the defense ....--s
l, Because the suit was brought without
any authority, inasmuch as the provisions
of the Code upon which it was prsdicated,
and which contains the substitute in our
jurisprudence for the Quo sodTTanto, and the
information in the nature thereof of the
common law, requires that the bill in such
cases be filed by the Attorney General
either when directed by the General Assem-
eral OF the State concurring, or upon the
information of a relator and the Attorney
General had given no assent TO this pro-
ceeding. The theory of our proceeding
equally with that Of the common law is,
that it is an investigation on behalf of the
sovereign power by what warrant certain
powers emanating from itself are exer-
cised, and this inquiry must be conducted
by the law officer of the sovereign power
in both cases.
2. Because an Injunction will not be |
granted to restrain officials who are in the |
discharge of the duties of their functions |
FROM acting pending proceeding to deter
mine their right; because this would be |
in effect to suppress the Offices fempora- |
rily, and deprive the citizens Of the benefit |
OF their city government at the instance OF /
pariiea squabbiing merely for the loaVes |
and fishes. Authority to this effect was |
cited exactly TO the point from the New |
York cases.
3. Because the reason Of this applied |
equally in the present case against an in
junction on final hearing, since Complain
ants, according to their own showing, would |
not have received majority Of votes even
had all the votes alleged to have been /
fraudulent been eliminated, they simply |
alleging that were this done and then be- |
sides this all the votes counted for them
which were frequently prevented from
being cast in their favor, the result would |
have been different Therefore, if de- |
PENDANTS were not validity elected, no of.
fcers we're elected, and if defendants are
enjoined on final hearing, there will be
none TO whom the government can be
handed over. If the election was not valid, |
then the present incumbent holds on az
Mayor under the charter, his successor
not having been elected and qualified.
4. Because by the charter all questions
respecting the election qualifications and
returns OF the members Of the City Coun-
Gil are confded to the jurisdiction of the
two houses thereof, and this is exclusive of
the jurisdiction Of any court.
5. Because there is clear and adequate
remedy in such cases at law, viz: by man
damus, 10 compel the admission of the
excluded officers.
6. Because there is no such property
qualifications as that contended for, this
feature of the charter having been abol-
ished in 1860.
Colonel Colyar was followed by Messrs.
East and Baxter for the defense, and Ex-
Governor Neill S. Brown for the COM
plainants. r. p. Smith and OTIS sub
mitted their briefs in behalf Of the defense
in writing. A large number of persons
we're present during the progress of the ar
Judge Shackleford eferred
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