Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1870-04-27
THE SHRlEVALTY.
Decision in the Case Of Marcus J.
Wright VS.. A. P. Curry.
Judge Swayne, of the Circuit Court,
Declares General Wright Shsr-
if of Shelby County.

State of Tennessee, upon the relation of
Marcus J. Wright VS.. A. p. Curry;
Application for Injunction restrain
ing defendant from acting as and
exercising the duties Of Sheriff,
and for an order declaring relator
10 be Sheriff, and 20 be entitled TO
the Office; and also for an order tnat ue-
fendant Immediately deliver over TO
relator the books, papers, etc, of said
office, so as completely to place him IN
full possession of the same.
State of Tennessee, upon the relation of
p. Curry VS.. Marcus J. Wright:
Motion TO dissolve Injunction granted
by Judge Anderson, restraining de-
fendant from exercising the duties
Of Sheriff, and from taking possession Of
the books, papers, etc, Of the Office un-
ii final judgment in the contest herein,
or further order Of the court.
Bv consent Of the parties, the spplica-
ton and motion above were heard TO-
gsther. The petitions and answers in
both cases being before me, and
full argument of counsel had.
Very rarely have so great ability and
learning been exhibited, Or earnest zeal
and eloquence displayed as on the part OF
the eminent counsel engaged i1stRese
proceedings on either side, and II y siaIl-
fving to me, snd worthy OF remark that,
whilst the subject matter at this Tune,
and here is the occasion Of much popular
excitement, and, perhaps, lBtemperance,
Of a personal and party character, lnFolN-
ing the fate OF the party champions and
the sympathies Oi tneir respective friends,
none of these eXcssses, or 8Dy form OF I'M
gropriety whatever, have been manifested
or attsmpted by any Of the distinguished
counsel. Not so much as al aliusion has
been made 10 the party, strife or political
4 81, avFa a sN
and its entire conduct, although protraet-
ed. and every part Of the ground unyleId-
Fn.-Iv contested. have been without per-
so1slitY or invective; in a kindly spirit,
and looking alone TO the law IL its appll-
cation TO The facts. Partaking Of this
spirit, and desiring rightly to deter
mine the issues submitted, l have atten-
Eively heard the argument, and carefully
considered the application and motion be-
fore me and now proceed 70 state my de-
termination thereon. and the reasons pro-
ducing it (snd I do this without consult
ing that class Of jurists who, not OF the
bench or bar, have yet in public forms or
otherwise, with great facility, dispatched
Ehe VeEed issues in advance Of TIE Courts
or for the enlightenment thereof:
l. As to the matter Of Wright vs.. Cur
~ being application for 3 restraining
writ. The defendant, by counsel, asking
10 be heard upon the application, fixed
8 day for this purpose iIuesday, 18th
INST. at O'Clock am, al the Circuit
Court room. and caused both parties 10
he notified thereof. Then and there the
defendant offered and was allowed, con-
sistently with equity, practice and prln-
eiples, to read his answer TO the petition,
and, afterward also his amended answer.
Accompanying the answer as eEhlbits
and also offered separately therefrom, and
in support of it, were read the affidavlts
of Cranmer and Beaumont. The TelatOT
excepted to so much Of the answer as
comm ehended, and also moved 70 strike
ont tbe shid affidavits which exception
and motion II was agreed to discuss IN the
general argument 70 be determined Win
the case, and afterw6rli the relator read,
In support of his petition, the stddavit of
Commissioner Shock, subject 10 the IKE
motion on the part Of the defendant, and
To the same disposition. I am of opinion
that the exception and both motions
should be sustained, and therefore strike
out all the afidavits, the case not being
such IS authorizes them for either party.
They are in the nature Of depOsitiCns of
witnesses, in the taking Of which the
opposite parties are reentitled TO and should
cross examine.
Both cases being heard together, the
facts. so far as necessary to the decision,
are briefly these: On the first Saturday
Of March, 1868, Curry was elected TO, and
Quoted into and invested with the Office
Of sheriff of Shelby county. On the 2oth
day Of March, 1870, another election for
Sheriff was held by the Commissioner OF
Registration, who, after comparing the
returns OF the judges and clerks Of cleo
ttEu within ten days thereafter, executed
A cesIi iticate of election in favor of Curry,
and Dissed il in the hands Of Cranmer,
nis deputy, dated about the last Of March,
1870. which certificate did not come into
the hands CT Curry actually, nor, IL is
commended, constrUctiYelY. Afterward,
on the 18th day OF April, 1870, upon a
re-examfnS ton Of election returns, and 1
after the dissolution of the Injunction
below mentioned by His Honor Chan
ceTor Morgan, the Commissioner deeming
or claiming that his former certificate WAS
contrary 10 the facts, and illegally exc
cuted issued and delivered another, but
now to Wright instead of Curry, under
sections S64 and s74 of the code. The ro-
gurns were made and filed according 10
law. on the 3Ist day of March, 1870,
Curry filed his bill in the Chancery Court,
upon which was the hat Of His Honor
Judge Hudson, OF that date, granting an
Injunction. which was issued the same
dsv, restraining the Commissioner from
fssuin0 gnV certificate OF election to
WRIGHT. eud Wright from receiving such
certitcate. Shlch injunction was after
ward. on the 18th Of april, 1870, dissolved
bv His Honor the Cbancellor when the
foregoing certificate TO Wright was issued;
who then, on the 18th day OF April 1870,
exhibiting his said certificate was IN form
inducted into and invested With the otnce
of Sheriff by the County Court Of Shelby,
executing the bonds and taking The oaths
required by law; therefore, on the sth
ct April, Curry, having appeared ia
said Court with his securities, rendered his
bond and moved to be inducted, which
motion was then refused, and its cOnsid-
5rstiou most tpOned TO the 18th, and the
same has been thereafter refused. Al
Lodging these facts, and, further, that
said certificate % Wright was false la
fact and fraudulently corrupt, and by
bribery Issued by the Commissioner,
Curry filed his petition 10 the Circuit
gourt on the 18th April, praying an in
iunetiOn restraining Wright from further
exercising or attempting to exercise the
duties of the Office of Sheriff, and from
taking possession Of the same, or records,
or hooks or papers thereof, until final
Judgment in the contest herein, or the
9arther order of the court; and His Honor
Judge Anderson granted said prayer and
the Injunction was issued, the motion TO
dissolve which is the second matter above
named and now before me.
On the 2sth of March, Wright
instituted q proceeding regularly con-
testing said election in the Circuit
Court, and obtained an I'M junction therein
froa His Honor Judge Anderson, which
said proceeding, pending the argument Of
counsel upon the matter now before nae,
was or has been dismissed, and Is so IN
derstoOd 70 be. II contained and was "the
contest " alluded TO in the petition Of
Curry next above named, and in the in
junction issued therein.
Under this state of facts, shall the in
faction prayed for by Wright be granted,
yrsSt- ming Curry from acting as and ex-
9s-t.- he duties of Sheriff? II Is con-
'5n.,,aI r. - ., unset, and the law is, that
he - validity o. the election y cannot be
tried under the pr. ceedlngs now before
me Code. 1929; that l. only can De trleo
by q proceeding expressly pioRlue9 ioL
that purpose, as the one dis -usseo oy
Wright, and that the PriB1G '"cts 5
title only can be cOnsiderp,'
here. Counsel, however, in argument
have gone further back than the law, as
consented TO by them, seems TO warrant.
They have discussed the questions in re-
lstion TO the voting places and number
thereof, and the validity Of the returns,
the proceeding in the nature OF pro lrdr-
-1gto. the extent OF the official term OF
-tbe sheriff. and, In fact, all the questions,
Snarbans on which the validity Of the
election rests: whereas, the statute evil
dentlv coutemplates, in these proceed
inVs. merely the primG fGcte title or
color oftitle, intending ITO prevent the
usurpation Of Office" There is confess
edlv no power under the proceedings be-
fors me, TO 90 beyond this and consider
the validity OF the election, or matters
inVoIginp the same. To grant this IN
inne,ion Restraining Curry from acting as
md exerQising the duties OF
60 as IooEfug to this effect