The Charleston daily news. [volume] (Charleston, S.C.) 1865-1873, 1869-03-22
THE CONTESTED ELECTION.

the relators to the return of the respondents IN the
matter of the writ of nandamus it being understood
that the petitioners and REALTORS are Gilbert Pills
bury and his Beard of Aldermen, and the defend
an IS aud respondents tho Acting Mayor and Alder
MN Of the CIts of Charleston.
In the matter of the quo ,carranto the Hon. W. D.
Porter, tor thu defendants, SAID that this was the
FIRST notice he and his associates had had Of the
pleas TO be made by the counsel for the claimants.
It was necessary that q rcjoipder should be made'
and the unprepared condition Of counsel showed
corclusively that attempts to hurry and press the
case would net lead to an earlier safer or better re-
suit. Take ior instance, the first plea eonainedin
the paper lust read. The Acting Mayor and Alder
men, by their coanse in their pleas to the writ OF
quo uarranto, said that writ oil quo 'oarrGnto was
pending in the Supreme Court, as appeared by the
records. and prayed that the present writ be quash-
cd. Mr.. Corbin, in his pca said there was no such
record Now it was impossible to determine TINS
question of fact without the records of the court,
which he had been unable to obtain, the clerk haV'
ing taken them with him to Lexington. All that
they could faad out was that the writ was marked
"discontinued," which was, perhaps. authorized by
Mr. Corbin to be done. But the ground taken by
him lMr Porterl was that counsel had no right to
ma,k paper O. be kind discontinued" which can
only be done by order and leave Of court 1tisa
civil proceeding and II the case Is discontinued the
cours NAV give COSTS and how could this be done
unless the court decides upon the discontnuance.
The truth was that the case was not ready for trial.
the evidence not complete. and if the court de-
sired sure aud proper decision, time must be given
Mr. Corhin desired an immediate hearing, and said
that he would admit the facts to be as stated by the
opposing counsel in regard to the "diecontinued"
writ he had requested the clerk to so mark it, and
there had been no order Of court but he could not
be forced to 20 On with the writ in the Supreme
Court The ether side could take Judgment, but
could not force him to go on.
After some conversation between Mr.. Porter and
Mr. Corbin. in which the former argued the aoso'
lutte necessity of postponement, and the latter urg
ed that the should go on at once Judge Carpen'
ter said that the proceedings in the writ Of quo todr
ranto would be continued to Friday, when counsel
must be reody and the pleadings made up. 1tbeing
agreed to proceed at once with the mdnddmus, Mr..
Porter said that be desired to conhns the question
at this stage to whether msand1mus was the proper
remedy to be granted the reators.
MIR. Corbin proceeded to argue the case f Gilbert
Pillsbury and the other claimants. he said that
n,a,.ddmus was the proper remedy when there vas
right be enforced and there was no other specific
remedy; that it could not lie to make persons do
anything not enoined by law, but in this case what
was asked was to compel the Acting Mayor and Al.
dermen to obey the clear and unmistasable provis-
isns of an act of the .ral Assembly. Mr. Corbin
cited authorities in support Of his views referring,
in passing to the Gaze Of the Bank OF the Stale,
wherein he said nanddMus would have peen grant
cd tc compel the giving up OF the assets, but that the
act itself was unconstitutional. The maniamus was
to be speedy remeoy, an avoidance of long lihga-
tion means of giving the parties an immediate en-
forcement of their rghts There was ne doubt as to
the duty of the Acting Mayor and Aldermen under
the law, and all that he wanted was TINT the law
should be enforced. He claimed that under their
appointments and elections the Acting Mayor and
Aldermen had no right to continue in Office,
because their tenure was only until their successors
were elected and qualified. An election had been
held the Acting Aldermen had declared that Pills
bury and others had received the largest number OF
votes which declaration was, he said, equivalent to
q declaration Of their election. Tie Aotirg Alder
men had examined into the election and at first re-
fused to declare the election, but the Supreme Court
compelled them to make q declaration, and they
could not 20 behind it. as 10 the act of 1868 being
contrary to the chartered rights Of the corporaors'
he argued that the city WAS always subject TO The de-
eisons of the Legislature. which hid control over
all municipal corporations OF which 1t could net d.
vest itself Tho charter existed at the pleasure Of the
Legislature, and celld be taken away 30 long M
there was no contract and none existed, and no In
terferelse with chartered rights. Mr.. Corsin cited
NJ Il, oefiOu
port Of his pesiisn that the power which makes can
unmake and that the Legislature can waive any
teohnicalities, whether as to the manner, time or
place Of holding elections Nor could this be an en-
croachment by the legislative branch upon the
functions Of the other departments of the govern.
ment The principle was the same now as under
the old decisions in the State which had never been
questioned.
Mr.. Barker, :or the RESPONDENTS, said that they
proposed limit the discussion this morning to tho
appropriateness of the remedy, and after some con-
versaton this wac agreed to by the court and oppos
ing counsel.
Mr. Barser, in reilly 10 the authorities cited by
Mr. Oorbin, conte aided and cited authorities ts
prove that mandamus wa, not the proper remedy
where the Office in question was properly filled, and
that It would srly lie wiero the ofica was vacant.
Where ofie. was held by color ofrisht the quo par-
rdnto was the proper remedy. BE then showed by
the admissions of tho other side in their return
that the Actin, Mayor and Aldermen were duly
elected or appointed They must hold office until
their successors elected ard Qualified and the
claimants were not duly elected aud qualified. The
Acting Board werc thus brought within the reach Of
the authorities given, which determine that nsandc-
mus is not the prop IT remedy.
Mr. Miles followed on tho same side, contending
that rnandamus would lie to compel person to do
thing which he was bound to do and had omitted to
do but not when to doe that thing would be to re-
move himself from Office. The Acting Aldermen
were not merely asked to give up the insignia of Of
fee; they were asked 10 vaoate their ofic'. II the
claimants have proper remedy by quo ,carraato
the court will refuse the mdndamus. He cited au-
mandamxs to persons claiming Office had been re-
fused until the persons holding Office de Jacto had
been ou5ted.
Mr.. Porter followed, and discussed the difference
bstween the operation of the mansamus ana the quo
1oarranto, ar,ring that if ofi,e es were vacant and
certain pcrsius claimed admlttance, the mdndamus
could ISSUE to admit them; but that il Offices were
filled de Jacto if not de jure as in this ease the
offices were he'd by color OF title and quo rarranso
was the only remedy. Ii the court granted the
damus. the Ac-g Mayor and aldermen would be
forced to vacate aad give up their Offices to the
claimants, while the very question to be determined
was whether the claimants had right TO those
Offices. If tue quo VGrranto succoe ana the writ