The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1870-04-20
the office to be filed temporarily by ap.

lpointment9
Mr.. WELLS: No, sir. They can do that
Judge JOYNES: Yet you say that the
office Of Mayor could not be filed tempora.
rily by the Legislature?
Mr.. WELLS: If there were a vacancy
the Legislature might authorize the duties
to be performed temporarily by another
person-as by the Recorder. / don't un.
derstand that they can authorize Mayor
to be elected in any other way than that
provided in the Constitution. MIR. Wells
referred to case in New York where the
Legislature was unwilling to trust the
court, and undertook to create new office
and transfer the duties to it. It was held
that the Legislature exceeded its powers In
attempting to do indirectly what it had not
power to do directly. Mr.. Wells continued
at some length upon this point.
Dir. DANIEL next rose to address the
Icourt. tr
Judge MONCURE Have you a BRIEF
Mr.. Daniel? e~.. - "
Mr.. DANIEL No, sir. But I'll be brief
II your Honor desires it, however, we will
prepare brief.
Mr.. DANIEL said he would first refer to
the form in which this case is presented
before the court. 1t has been said that this
court has no right to try the title to Office
in this manner-tbat this is no writ of quo
aoarranto, upon which judgment Of custer
can be pronounced. He conceded this.
Yet it is a case in which the court may pass
upon the validity of the title. The prisoner
will be remanded or discharged. IF the
court find that Chahoon is Mayor, the COM
Ellyson. incidentally the title to office will
be tried. And it was more appropriate in
the agitated and disturbed condition of the
public mind to avoid double litigation-a
case in the court below to be brought here
upon appeal. 1t was dictated by desire
for peace. And although you may not oust
the intruder, your decision will give peace,
order, and harmony to the community. The
case agreed applies to both parties. Apply
sons, and you can decide upon one as well
as both, and you will In effect decide who
is Mayor.
will take up these cases In order. !
shall not initiate my predecessor in aban.
doning his client-in passing from Cha
hoon's side to devote his whole attention to
Ellyson. Perhaps it is here as it is in mill
tary affairs-posts are sometimes abandon
cd because they cannot he held.
Mr.. WELLS: Iargued the question Of the
unconstitutionalty of the enabling act.
Mr. DANIEL: Exactly. Which involves
Ellyson's and not Chahoon's case.
Now, sir. what are the facts of the case
Mr.. Chahoon was appointed, under an act
not going to dispute the validity of his acts
in the office as long as the State was under
military rule. I admit that for the first
time in the history of this country, into q
community in apathetic repose, engaged in
restoring their shattered fortunes, there
came set Of people who took up arms just
after the war was over and engaged in so.
cial war. Under the act OF March Cd, 1868,
General Schotield appointed Chahoon-not
Mayor, for that was not his policy,-but to
perform the duties Of the Mayors office. II
your Honors will examine this act of Con
gress you will see that the General com.
manding was authorized to detail officers OF
to appoint persons not Officer; to perform
the duties of civil officers. 1t was thus that
Chahoon was appointed. Examine the act
Of July 1861. The language is as follows
"Upon such suspension or removal such
commander e shall have power to pro.
vide from time to time for the performance
! Of the duties Of such officers by
the detail of some competent officer or SOL
dier of the army, or by the appointment OF
: some other person to perform the saIne,' %
| &c.
There is the source of his appointment.
! Here is Chahoon's life or he has no life. He
is not constitutional officer ut ali, but was
appointed merely to perform the duties OF
! the office. That's all. | concede that he
had power to perform these duties at any
time before the admission Of the State to
representation in Congress. But | main
tain from absolute conviction that when the
State resumed control of her own affairs,
and the Legislature, clothed with inherent
power, passed this law authorizing the
Governor to appoint Council, who should
elect Il Mayor, then this superstruc-
ture-this hideous superstructure of mill
tary government-was touched by the spear
! of Ithuriel and shivered into fragments, and
existed no longer. According to the 9Th
section of the act of March, 1867, when the
State should have taken all the necessary
steps and established government repub.
lican in form, as the mOcking language oi
| the act is-that is, q republican government
! forced upon her by the bayonet-then the
act of Congress became imperative. From
that time there was no officer appointed by
the military who did not 60 out of office
! His robes were stripped from him. / do not
! know whether we are IN the Union now 0I
not but whether we are or not, we are ir
the exact condition in which the act of Con
greSs was by its own terms to. cease to ope
rate. Is Chahoon military officer? TheI
he exists by the breath of military au
thority. The military system OF which he
is part has fallen to the ground, and he fel
With it. If he still exists by military au
thority, if General Candy has continued
him in Office, then he lives, moves, and ha:
his being, by the fiat of military authority
and he is not accountable to any civil all
tholity. But the General commanding I'll
ther retreated when called upon to enforce
this authority.
"Imperial Caesar dead and turned to clay"
Why does he come here? He is not re-
sponsible to any court. He is the creature
amenable to you. He overrides the Con
stitution. In reruna nature there is nc
other check upon his existence.
On the 26th January Congress passed the
act admitting Virginia to representation in
that body. The next day General Candy
resigned all prisoners, all authority to the
civil power Of the State, but accompanied
the surrender by one of the most singular
orders ever issued-namely, that the terms
OF office of his appointees would expire
only when their successors were elected OF
appointed under the new Constitution
Now, sir, isn't this solecismS-an absurdi
ty in terms? Why, sir, to show how the
artiticers Of this system regarded this mat
Ter will read a portion Of Mr.. Bingham,
speech made in Congress. When the Recon
structiOn Committee reported their bill
which was superseded by Mr. Bingham,
joint resolution, an attempt was made to in
troduce General Canby's very order. Mr
Bingham said: "To complete and crown
"this folly, it is proposed to fill the Office:
"of the State by act Of Congress, thus doing
"away with the Legislature. When wa!
!. "such folly ever attempted to be enacted
"into the form Of law since God made
"heaven and earth," etc. This is the clause
of which Mr.. Bingham spoke:
"All persons shall continue to discharge
tho d1ties of their several offices until their