Staunton spectator. [volume] (Staunton, Va.) 1849-1896, 1870-04-05
Judge Underwoods Decision in the Cha
hoon-Ellyson Decentralization As
sumed and Injunction Granted-the right
of Appeal DisalloWed

of Appeal Disallowed
Judge Underwood read the following opin-
ion in the Richmond municipal war case, on
last Thursday morning:
United States Circuit Court-In Equity
George Chahoon VS. Henry K. Ellyson and
others. s@ m
The prayer to the court on this motion of the
complainant is for an injunction to restrain the
defendants from disturbing the complainants
In the discharge of his duty as mayor OF the
city of Richmond, an Office derived, as averred
| in the bill, from United States military ap-
pointment, and confirmed by both military Or
ders and the constitution of the State OF Vlr-
| ginia which has been sanctioned by law OF
| the United States. ser.s
! The deep interest in this case felt by the peo-
| pie of this city and State, and manifested by
| the crowds that have filled the courthouse du-
ring the past ten days; the breathless silence
which has attended the discussion of the issues
| presented the blood that was shed in attempt
| ing to settle the question by violence the pas
sions thus excited and still raging-al remind
us of the duty now devolving upon the court of
declaring the law without fear or favor of men,
but with the fear and reverence of the God of
peace and concord. A case more lamentable
in its origin and consequences thus far, was
never presented TO my considerations. The
good order of society should certainly never be
| disturbed by resort to brute force and the
strong hand when the object. however lawful
and proper can be accomplished by appealing
to the judicial tribunals of the country, relying
upon that law whose seat is the bosom of God,
and whose voice is the harmony of the world. =
We have to lament that riot has held carnival
around u.s. such as has never before disgraced
the annals of this city or State
Two of the victims have already taken their
causes up to the Court Of the Qmniscient Judge
whose whitening glance is now upon the guilty
authors wherever they may be, responsible for
this sad havoc, so timely stopped in its incep-
ton by the good and great general PLACED here
by benifcent government to restrain the mad
ness of partisan feeling and ambition when
they break out into open boodshed The dis
cussion of counsel has taken wide range over
all the relations of the principal parties. their
respective claims to the Office of mayor Of this
city, the origin and cause of the late riot and
| the jurisdiction of this court over the parties
ard subject matter involved.
| A glance at the main points in controversy
| will be taken as statement of the case.
| It is admitted that the complainant Ghahoon
was appointed early in April, 1865, mayor OF
| this city by General Sehofeld, then general
commanding military district No /, under the
reconstruction laws Of the United States, and
that he quietly held said Office and performed
all its duties, without challenge or question
| from any source, up to the 18th Of March 1870.
| 1t is also admitted that Oh the g7!h day Of
January, 1870, General Candy, the successor
OF General Sohofeid in command of district No
l, issued the following orders: s'Fhe term of
office ofall officers of the provisional govern
ment Of the State Of s,irgia:a, whether mold
en- by original election Of appointment under
the laws Of the State. or hy appointment or de-
tail under the laws OF che United States, will
expire when successors elected or appointed un-
s s re ne" cons '''o''0' snan nave a''y guam
The schedule of the State constitution of yfr-
GINA, approved by the Congress and President
Of the United States, January 20. 1870, de-
clares as follows;
1.-THE several courts, e%cept as herein other
wise provided, shall continue with the like pow
ers and Jurisdiction, both in law and equity, as
if this constitution had not been adopted, until
the organization of the judicial department Of
this constitution :" and in the body of tbs Cons
stitution, article 9th, section 18th, we find this
provision Judges and all other officers, elect
ed Or appointed, shall continue to discharge
the duties of their Offices after the terms gf SER
vice, have expired qatil- sreir successors have
qualified.
Under these circumstances there would seem
the 18th OF March, instant, at least de Jdcto
MAYOR, and entitled to hold the Office until his
successor had been elected under the State con
stitution and had duly qualified, and tnat be
could only be removed BY any claimant of his
| said Office by due course of law. TN that Day,
however. il is admitted that defendant Eilyson
addressed note TO the complainant claiming
to have been elected to the same Office and de-
handing the books and papers thereto belong
ing, and on the refusal Of the compliment 10
surrender the same, the said Ellyson attempt
ed to obtain them by force and arms, and by
combining the compliment ln hls. Office, without
| food, gas, or water until ae should yield to
bis SAID demands
In justification of this force defendant Ejlyson
asserts that he had been elected the previous
night, mayor, hy paraons ealing themselves the
| common council of tie city OF kiehIhond, and
claiming their authority By appointment OF the
Governor OF Virginia, IN pursuance o! an act O.
| the General Assembly passed the 8 day OF
! March. instant. Defendant Eilyson also asserts
that the com lainant Chahooh was disqualified
from holding the Office OF mayor under On Ole
| law of Virginia, because he held the Office o.
United States circuit court commissioner a
this time.
It is one of the most trying and disagreeabit
duties Of a judge to declare an act passed by
legislative DOQy VOlu lOE ACKNOWLEDGEMENTS
| Twice only, 10 The disposition OF More thar
nine thousand cases, has this duty devolVed up
on me first in 1868, when | was forced by M.
convictions to declare against the law OF th'
United States, excluding from the privilege O
| providing bread for their families, by the prac
tice Of their professions, ali lawyers who coult
not take the prescribed cath, commonly calico
iron-clad This decision was very offensive L
nv friends of the administration, and brough
upon me severe CRITICISM, bur was few year
after, indicated by the Supreme court OF tn
United States, and By the profession at large
Again, in 1866 decided against the stay
law OF the General Assembly OF the State Q
/ Virginia This was equally offensive to tn
debtor portion OF the opponents OF the admin
: stration yet this DECISION is now gensraily ap
proved, as far as know, by the best jurlsts g
the country. Ia neither OF those cases WeFt
my convictions OF unc0Hstltutlonallty so ciea
as In the case Of the so-called enabling act o.
the Virginia Legislature OF the 9th OF March
instant, whose effect is to change elective Off
GERS into appointees of the Governor, and unde
the avowed purpose Of declaring when yacan
cies exist would create innumerabe yaeancle
by wholesale removal or decapisatlon.
A very little examination of this enabling
act of the General Assembly of Virginia, out 0
which this case and the recent riot In our street
have hsen but the natural and legitimate out
growth, and Comparison OF Its provision
with those of the State constitution recent.
adopted by our people, and by law OF tn
! United States, will demonstrate the truth, quit
apparent to those who framed the last namet
instrument, OF the utter lneompatabiilty OF tn
act and the constitution.