The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1870-06-30
THE CONTESTED ELECTION.

MIR. NELSON'S ARGUMENT FOR THE
RESPONDENTS.
The time Of the court yesterday was oe.
cupied by the clear and convincing argu-
ment of Mr. james Neeson for the respond
ents. -
Mr.. Neeson commenced his argument BY
a brief survey of the posture of the con-
| tested election case at this time. He spoke
| of the Conservative candidates as the in
| cumbents, and of the Republican candi-
dates as the contestants. The incumbents
were in possession Of duly.arithenticated
| certificates of election, and some, having
duly qualified and given bond, were ready to
enter upon the discharge of their duties.
Suffrage he held to be the basis of all
power in a representative government, and
| means are provided for ascertaining the
choice of the people and of authenticating
| that choice. None but those described in
the Constitution of our country can on any
preteXt exercise that right. The General
Assembly did not conceive it possible to in
wade the constitutional rights of the voter,
and 1t Is not to be supposed that they would
pass any law to effect THAT result: They
had no power to confer upon the judges of
election the right to receive any votes ex-
ccpt from persons collstitutionally qualified
to exercise the right of suffrage. 1t would
be preSumptuous to impute such treason
able purpose to that body. Nor has the
General Assembly attempted to do so, III
| though the purpose has been imputed to
them by the gentlemen on the other side,
in claiming that the judges were clothed with
these extraordinary functions and that
their decision was final.
He then inquired what authority this
court has in the case. Under 4 special sta
tutc it had right to try this cause, but had
not co11lIfiofi law Jurisdiction. BY tlio
common law, any one having claims for re-
dress Of civil injury brings suit or action in
tue proper court, and al appropriate or ex.
elusive remedy Is prescribed by law. AL
ways the party resorting to the court has q
legal right to invoke the judgment of tile
court in his favor, and no party is enter
tained unless he has the legal right. There
arc other proceedings where rights are cre-
ated by statute and prescribed by statute.
The party aggrieved then comes into court
and claims that his right under particular
statute has been invaded, and inYokcs tile
remedy prescribed by the statute. This
latter is the kind of proceeding now under
consideration, and outside Of the Goth Sec
ton of the general election law none of these
fifteen complainants have any right or RENE
dy whatever. lie then showed what under
| the statute was the right, and what the
remedy. Outside of this statute no voter
has q right to complain Of this election or
any part of it in any court, and certainly
not in this court. Here they may CON.
l nloin of urIuuu election or 1alsc
return. The difference between these
two was the difference between substance
and shadow. A false return no more inya-
lidatcs an election than Il false certificate i'll
yalidates q marriage. Complaint having
| been made of either, this court is required
| to try the contest on its merits, and to de-
| eide finally concerning the same, according
| to the Constitution and laws of this Com
monwcath. What does "according to the
Constitution mean? 1t means that the
! Constitution must furnish you with the cvi-
| dence of the qualification and privileges OF
the voters. II the argument Of the other
| side be true, the Constitution cannot be
honored or consulted in the inquiry as to
the qualification of voters, because they
| say the Judges of the election are the sole
and final arbters. What does "merits' u
mean? The merits have reference to tho
4 Justice Of the case irrespective of techni-
L
commanded to proceed.
| 1t is to this contest we respond. The in.
cumbents have been duly elected. They
saw in response to the complaint, we have
| been elected by Il majority of the law
| fully qualified voters, and are prepared tc
prove it; that our opponents received &
large number of legal vote~htsnd are pre-
parcd to prove it; and that Yt were justly
entitled to the certificates, ana are prepared
to prove that. Criticism has been made
upon the response, as if this was trial o
wits in q case Of special pleading, whcrca:
the law docs not require special pleading OF
any pleading in q contested election, lit
maintained that the response covered tl(
whole ground at issue.
| Mr.. Nceson then urged the right of the
respondents to call upon the complainants
rs a matter of primary right, to prove thcil
qualification to complain. lst Grccnlcaf
"A and 1871 They should be required tt
establish the fact Of their being qualitlct
voters of the district. He then considered
the motion to strike out certain parts of TIT
response Us not specific enough. Lie clalmct
that it was Ucry specific. The frauds ar'
enumerated, showing the number in th'
whole city, in each ward, and i'll each pre-
cinct. The rules of pleading do not require
nor permit evidence to be introduced i'll th'
allegation. When the proper time arrives
the evidence will be forthcoming, unde
| such regulations as the court may prescribe
| The learned counsel next addressed him
self to the consideration Of the position
taken by Mr.. Ould, that they need not con
! fine themselves to the Goth section Of thi
law, but might treat the proceeding Us il
| the nature OF quo rGTTant0 or mGnltdnlnS
or both combined, Us they might see proper
| Obviously this position was taken now be
cause they had found the argument tlla
| the ballot could not be scrutinizcd untena.
| BILE.
The Court It is proper that l should
say that by recent statute the Legislature
has given to this court jurisdiction in quo
ardrranto and nsandamGs proceedings.
Mr.. NeeSon BY recent statute bu,
| that does not affect my argument.
Resuming, he urged the view that The
| complainants could not obtain q n1dntlaD,u:
in any court for the purpose sought here
| They had no rights in the premises, though
possibly the defeated candidates might
| Further, the applicant for 4 nadndamus mus
be destitute OF other legal remedies, ant
must make affidavit of all the material fact
| in the case, complete and full, and the wri
must be granted only In the discretion o
the Judge. [Angcll 81 Ames on Corpora
tlons, G9S, ITO; 2 Grattan, 505 !; I'd Leigh
1861 Our election law has prescribed
specific remedy for case Of this kind.
| Nor have these parties any better claim Il
the quo a1arrdnto. 1t is q high prerogatlyt
writ, grantablc on discretion, whose sols
purpose is to cha.i" &c the title to an offlc!
| which some one is exercising whom it is de
sirable to expcl. 1t is not the right OF any
individual to obtain this writ (though it L
| oil Itrt 10