The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1870-04-21
common law. He cited Kent, 454 -58, 2
Kent, 295 and notes, and 10 Howard, 40, on

W tie SoustiLtltluus nc CiGSu GO SHOW tue
manner in which the judiciary should ap-
prcach such questions the opinion Of Judge
Tucker in the case of Goddin uS. Crump,
Robertson, Grattan, 518, 62223; Nc
Laughlin Us. Bank OF Potomac, ] Grattan,
66s Gilkeson us. The Frederick Justices,
13 Grattan, ST; Commonwealth us. Drew
ry, Is Grattan, /; Commonwealth os. Law
horne, e1 parte, Is Grattan, s.. =.
The attention of the court was called to
the fact that the provision of the Constitu-
ton continuing officers until their success
ors are appointed is prospective, not retro-
spective, and refers therefore to the of1cers
elected or appointed under the new Con-
stitution, not to those existing under the
superseded government. In the case OF
Lawhorne, eI pdrte, cited by the opposing
counsel Yesterday, Governor Pierpolnt
was an officer deriving his official life from
the Constitution. and continued IN ONCE
byit.
Mr.. NELSON then reviewed the circum-
stances which led the Legislature to pass
the enabling act. The vacancies existed,
and there was no way of providing for an
election until the time specified in the Con-
stitution. The legislative power was ample
to provide for this interval of time in which
the Constitution was imperative, and TALL
urc to exercise it would have been culpa-
BILE. A great many questions of importance
arose from this anomalous state of AFFAIRS,
and the people called for solution, Whlcn
no power but the Legislature could give.
1t was therefore their duty, as soon as prac-
ticable, to provide the adequate and appro-
pirate redress, which was done in the ena-
bling act. IF the ofice-holders had no
title to the offices it was the duty OF the
Legislature to fill their places until their
cH hn oh 81
the Constitution. This must he unless
their title was superior to statutory law.
The enabling act only continued the otti-
GERS for whose appointment it provided un-
til the officers provided for in the Constitu-
ton could be elected in exact accordance
with the Constitution.
Mr.. WISE here asked the court whether
his time would be curtailed, in view OF the
fact that Mr.. Neeson had exceeded his al
loWance. -...,
A colloquy ensued between the counsel
and the court, which resulted IN Mr.. Nee
son declining to continue, as the time al
lotted for the argument had expired.
Mr.. WISE then addressed the court.
He said he for one was glad that this qucs-
ton was to be decided by this court. 1t
was State question, and should be decided
by the highest tribunal of our judiciary.
The Judges on the bench were, some might
saw, as clav Just out of the hands of the
potter, and some might say they would
| hesitate to undo the work of the body by
which they were created. He was not,
however, afraid to trust this court, and was
sure they would give the matter an impair
| tial hearing and render just decision. 1t
was his design to discuss this case as 1t was
affected by Virginia law.
Admitting that Chahoon was in in contra
ventioli of State law, that would not make
his acts illegal; for even by the enabling
act those acts were legaliZed. He held that
there were incumbents of the offices under
the old Constitution Of 1S50-'5l or under
the Alexandria Constitution; or under the
orders of General Candy or under the new
Constitution (nody and schedule); or under
the enabling act. There had never been an
interrcgnun.
He then reviewed the action Of Congress
towards Virginia in the reconStructlon
laws, which resulted in the establishment
of a provisional government. He denied
| that the Government of Virginia under the
district commanders was purely military,
but a mongre concern that was worse than
military government. The vitality and
force Of the Constitution were never, dll-
ring nor since the war, destroyed: They
were only suspended, and when the mill
| tary power was withdrawn or relax
| ell it asserted its full powers again.
But when did the effect of the reconstruc-
| ton acts cease in this case? He held that
they were operative in effect long after the
dav on which the State was admitted to re-
presentation in Congress. The civil power
nassed into other hands, but the provisional
bower of the reconstruction acts did not
cease, and those acts nowhere say it should
so cease. But even II not continued by
the reconstruction acts the military APP
pointees were continued by the body and
schedule OF the Constitution. So far as the
Mayor of Richmond is concerned, he was
continued, if i'll no other way, by the clause
of the schedule which continues in force
the charter of incorporation under which
Inc holds office. The order Of General Cam
| by continuing the officers was justitiable as
a means of preventing anarchy, and was
wise and sallltary act, as this court, upon a
| fair view of the circumstances, must deter
mine. 1t might have been supererogatory
but not unnecessary, and it was but fair to
the commanding General to say that it was
| issued with the knowledge and approval of
the Governor of the Commonwealth.
He next argued that, admitting that there
had ever been a vacancy in the offices, the
| Legislature had not the power to fill them
| by comforting the power of appointing the
cOuncilmcn upon the Governor and allow
ing the councilmen thus appointed to elect
Mayor. The Legislature might have con-
tented themselves with continuing these
officers, but instead of that they made con-
fusion worse confounded. The time for the
election was not far off, and they should
have only cleared away the clouds OF doubt.
Where the necessity of creating new vacan-
cics? The provisions of the law were lncon-
sistent with each other.
Governor Wise then stated that he had
tried to show there had been no vacancy IN
the office of Mayor for the following reasons
First, The office was continued by the ne
ceSsaiy operation Of the acts of Congress and
the continuing abnormal relation Of pro-
yisiOnal government to Il new and proVln-
cial constitution OF government. Second,
1t was continued by the body as well rs the
schedule of the new Constitution, operating
tnstanter and even precedent in part to the
cessation of the provisional government.
Third, BY order Of the Provisional Cover
nor approving and sanctioning the rule of
the old law, applied by this court in the
Langhorne case of Governor Pierpoint.
Fourth, If no positive provision of the old
law, the inherent power to prevent what
the Governor abhors-an interregnum.
But, admitting there was an interregnum,
he held that Chahoon was justified in hold
ing over by Governor Walker and General
Candy and the law of the General Assembly.
Governor Wise's argument was not able,
but entertaining, and we regret our ina
bilty to lay before our readers more than
this imperfect sketch of the points made.
lie closed at o'clock.
The court then took the case under con-
sideration, and the decision will not be