The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1870-03-28

constitutional. What is the official term
of the Mayor elected under this Com
stitution? 1t is not to be found in the Con-
stitution. The law of the Legislature must
specify that. If your Honor agrees with
me this is sufficient to validate all the lows
of the GeneratAssembly. They have done
what seemed right to them, and ] have no
right to impute to them corrupt motives.
The Convention, presume, knew that there
must be lapse OF time before the Legisla-
ture could meet and pass laws, as it di-
rected that it should, carrying out the pro-
visions of the Constitution. The very pow
ers of the Mayor are yet to be defined By
the Legislature. need not descant at
length on the 22d section of the Constitu-
tion which expressly gives the Legislature
power to declare where vacancies exist, for
that has been done by counsel preceding me.
Now, how do these parties stand before
this court The Legislature, legally elected
by the people of the State, have passed this
enabling act. 1t has gone to the Governor,
who has signed if, and given it force-for
the Governor, instead Of having his powers
pared down, as said by Mr.. Chandler, has
had them greatly enlarged by the veto
power. The Governor appointed City,
Council who, without resistance, held ses-
sion, and regularly elected kenry K. Ely
son Mayor. No man can deny the validity of
any of these acts unless he also denies the
| validity of the act under which they were
done. Is not the question, then, simply about
the constitutionality of the enabling act.T If
| that act is valid then there is but one Mayor
in this city. II tits uneonstitutional-and
this court can pass on that auestion-still
| there is only one Mayor in the city. 1t is
useless to squabble about the mayors
on distinctions between de .facto and
de jure. If Mr.. Ellyson is in Office
by legal appointment, he is Mayor de
facto and de jure. The law under which
he was elected was passed by o competent
legal body, with competent authority. In
justice to the General Assembly might
say that the Legislature has reported bills
for registration, dividing counties, and
other Important aets.y.t tolT "t E'.s'> ~
The COURT: Mr.. Neeson, do you mean
in your argument to say that de facto
officer can be displaced by strong and
bloody hand by the claimant? ~
| Mr.. NEEsoN I mean to say that if ne
cessary martial law might be declared in
this State to enforce the law. The consti-
tuted authorities of this State and city have
proclaimed anl recognized Mr.. Ellyson as
Mayor of this city, and that to-day
he is in fact the Mayor of the city.
The proof in . this case, and not the
allegations of the bill, are to decide
your Honor's mind in deciding this
case. These proofs show that the Governor
appointed the Council; which met in the
g. | fha nrlx nj s,ubor $1,ax,
could, and there elected Mr.. Ellyson Mayor.
The Clerk of the old Council testifes that
none of the members of it have attempted
to exercise their functions as councilmen.
The new Council supports MIR. Elyson and
pays his appointees. It prescribed where
the Mayors court should be held, and Mr..
Ellyson has been there holding his court
and performing all the other duties of the
office. Mr.. Chahoon is exercising none Of
the functions of the office except to hold q
a room where the Council forbids that any
court shall be held. &.@
Governor WELLS: He has been holding
court every day, and has sent prisoners on
for trial. You think because you have
been holding court that we have not
been holding any. The old Council went
to their old councilsro and found the City
Hall barricaded against them by Ellyson's
police. 1t was not their duty to get their
heads broke or to get put in prison. Here
it was desired that atfidavits should be read
Mr.. NEEsON: Gentlemen, i have moi
time to have these papers read again. You
have three or four days of argument before
you in which they can be read.
Governor WELLS: Five days.
Mr.. NEEsoN (continuing) This court
cannot take jurisdiction to decide whether
q law of the State is constitutional as com
pared with the State Constitution, if there
be no other ground Of Jurisdiction. Here il
n gentleman, lately Mayor Of the city, who
conceiving that the enabling act is uncon
stitutional, proceeds to resist it. If he re
sisted it by an appeal to the law that woult
he commendable. But he does not do this
lie seizes the public property, arms men
and places them on guard over it with DOW.
der and ball. 1t is'a fact that at 4 O'Clock
in the morning Mr.. Chahoon entered q
public building of the city and armed O
force of men to guard it, and thus inaugu.
rates armed resistance and rebellion to the
laws of the city and State. 1t is the duty
of the Governor to put down this rebellion
.
he to stand by passively and allow rebel
to defy and resist law which the Legisla-
ture had passed ..... -.-....-.-......---..
Ex-Governor WISE: Does the gentleman
mean by rebel to reflect on me. [Great
laughter.l r! ..-. &! j" -. ,a'E
Mr.. NELSON: Not you more than others.
say that the Governor of this State could
not tolerate resistance to the laws OF the
State.
The COURT: don't understand that the
Governor has interfered in this matter.
Mr.. NEEsoy: No, except that he recog-
nizes Ellyson as Mayor, and had corre-
spondence with the military commander
disappearing of his military interference.
! In 7th Howard, p. i6-7 (Dorr Rebellion),
the Supreme Court decided that State
had power to declare martial law, and
men acting under authority OF such a
/ declaration are held blaneless for their
acts. The State itself must decide what
amount OF force the crisis demands. blr
Neeson read at length to show the right OF
State to declare martial law, and applied
it to the case to show that it is recognized by
the Supreme Court that the political power
+. of State reside in the executive and ie-
gislative departments and that that being
the case, if they decide law is constitu-
tional, il is to be inferred that it is SO, and
enforcible by arms against forcible resist
ance. .a 80 u I - I. 4 -Eif
Of my client Mr.. Ellyson I need cay
nothing. His standing in this city is 80
high that it is not needed to praise him
certainly not in his presence. OF Mr. Cha
hoon, / have not word to say in dispraise
of his personal or official character. But
he has committed grave error. He will
live to find out that he has made e fatal
mistake, and that he has removed far
from his hand that which was once not far