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

IU the Circuit Courl ou Saturday, the Hon.
D. T. Corbin read the reply Of the petitioners to the
pleas of the counsol Tor the defendants in the matter
of the writ Of quo aodrranto and also the reply of
the relators to the return of the respondents in the
.tter of the writ of andamus, it being understood
tn 1t the petitioners and relators Gilbert Pills.
bury and his Board Of Aldermen, and the defend
ans and respondents the Acting Mayor and Alder
men of the CITY of Charleston.
In the matter Of the quo soarranto the Hon. w. ID.
Porter Tor tho defendants, said that this the
first notice he and his associates had had of the
pleas to be made by the counsel Tor the claimants
1t necessary that rejoiuder should be made,
and the unprepared condition of counsel showed
copcusively that attempts to hurry and press the
would not lead to an earlier, safer better
suit. Take for instance, the first plea eontan-d in
tho paper just read. The Acting Mayor and Alder
men, Dy their coausei, IN their pleas to the OF
quo wdrranto, said that writ of quo auarranto
pending in the Supreme Court, appeared by the
records and prayed that the present writ be quash-
ed. Mr. Corbin in his plea, said there was no such
record. Now 1t impossible to determine this
question Of fact without the records of tho court,
which he had been unable to obtain, the clerk hav.
ing taken them with him to Lexington. All that
they couid find out was that the writ was marked
"discontinued," }" which was perhaps authorized by
Mr. Corbn to be done. But the ground taken by
him INT. Forter) was that counsel had no right to
mark paper of the kind discontinued" which can
only be done by order and leave Of court. 1t is
civil proceeding, and If the Is discontinued the
court may give costs. and how could this be done
unless the court decides upon the discontinuance.
The truth was that the not ready for trial,
the evidence not complete. and if the court de-
sired sure and proper decision, time must be giveno
Mr.. Corhin desired an immediate hearing, and said
he 70 ho ad
opposing counsel in regard to the discontinued"
writ he had requested the clerk to 30 mark it, and
there had been order Of court, but he could not
be forced to 60 on with the writ in the Supreme
Court. The other side could take judgment, but
could not force him to 90 on.
Alter some conversation between Mr.. Porter and
Mr.. Corbin, in which the former argued the abso-
lutte necessity of postponement, and the latter urg
ed that the should go at once Judge Carpen-
ter said that the proceedings in the writ of quo
rano would be continued to Friday, when counsel
must be ready and the pleadings made up. Itbeing
agreed to proceed at once with the mandamus, Mr.
Porter said that he desired to conine the question
at this stage to whether a.and was the proper
remedy to be granted the relators.
Mr.. Corbin proceeded to argue the case Gilbert
Ptllsbury and the other claimants. He said that
neandan,us was the proper remedy when there q
right to be enforced and there other specific
remedy; that 1t could not lie to make persons do
anything not enjoined by law but in this case what
was asked was to compel the Acting Mayor and AL
dermen to obey the clear and unmistab able provis
ions of an act of the General Assembly. Mr. Corbin
cited authorities in support Of his views referring
in passing, to the case Of the Bank Of the State
wherein he said mandamus would have peen grant
cd to compel the giving of the assets, but the
aot itself was unconstitutional The man Janus was
be n of 1;&;~r
ton, means Of giving the parties immediate en-
forcement Of their rights. There doubt as to
the duty Of the Acting Mayor and Aldermen under
the law. and oil that he wanted was that the law
should be enforced. He claimed that under their
appointments and elections the Acting Mayor and
Aldermen had no right to continue in omce
because their tenure only until their successors
we're 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 wac, he said equivalent to
declaration Of their election. The Acting Alder.
men had examined into the election, and at first re-
fused to declare the election, but tho Supreme Court
compelled them to make declaration and they
could not GO behind it. AS TO the act Of 1858 being
contrary to the chartered rights Of the corporators
he argued that the city always subject to the
cisionr OF the Legislature, which hcd control over
all municipal corporations, of which 1t could not d.
vest ITSELF The charter existed at the pleasure Of the
Legislature, and could be taken away SO long as
there was no contract (and exised) and no in
terferenoe with chartered rights. Mr. Corbin cited
authorities and instances Of eslaive action In SUP
port OF his position that the power which makes
unmake. and that the Legislature can waive any
teohnicalities. whether % to the manner, time or
place of holding elections Nor could this be an en-
croachment by the Legislative branch upon the
f1ne oR Tho
ment. The principle 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 tolimit the discussion this morning to the
appropriateness Of the edy, and after some con.
versaton this agreed to by the court and oppos
ing counsel
Mr. Barser, in rel ly 10 the authorities cited by
Mr. Corbin.. contended and cited authorities to
prove that naGndanaws was net the proper remedy
where the Office in question was properly allied and
that 1t would only lie where the ofac, was vacant
Where Office held by color of right the quo aoar-
ranto was the proper remedy He then showed by
the admissions Of the other side in their return
that the Acting Mayor and Aldermen were dug
elected or appointed. They must hold Office until
tne1r successors wers elected and qualified and the
claimants were not duly elected and qualified. The
the authorities given, which determine that rnandc-
mus Is not the prop er remedy.
Mr.. Miles followed on the same SIDE conteadinr
that mandamus would lie to compel person to do
thing which he was bound to do and had omitted to
do' but not when to do that thing would be to re-
move himself from oface The Acting Aldermen
vera not merely asked to give up the insignia OF Of
nee; they were asked to yaeate their ofic,. Ifthe
claimants have proper remedy by quo suaryanto
the court will refuse the mandasaus. He cited au-
thofisies sustaining this view and showing where
n'anda"as to persons claiming Office had been re-
fused until tho parsons holding Office de tacso had
been orsted.
Mr. Porter followed, and discussed the difference
bAtween the operation of tho ,andan,us ana the ouo
'OGryanto. arguing that if Offices were vacant and
certain persons claimed admittance. the saaadamus
could issue to admit them; but that If Offices were
aled de Jacto, If not de jure as in this case the