The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1870-04-01

nal narties, their respective elaims to the
Office of Mayor of thisscity, the origin nnd
cause of the late riot, and the jurisdiction
of this court over the parties and subject
matter involved. 7 E.kf.t -.
A glance ut the main. points in contro
versy will be taken as statement OF tht
case. = .4sT s%fs,t ~,
|hoon, was appointed early in April, 1861
Mayor Of this city by General Schoheld
then General commanding Military Dlstrlc
No. ]. under the reconstruction laws OF the
United States, and that he quietly held saio
office and performed all its duties, without
challenge or question from any source, VI
to the 18th of March, 1870.
eft Is also admitted that on the 9th day
of January, 1870, General Candy, the sue.
cessor of General schofeld in command Of
| District No. ], issued the following order
"The term of Office of MI officers OF the
provisional government of the state OF VIZ
einia. whether holding by original election
or appointmcnt, under the laws OF the
State or by appointment or detail under
the laws of the United States, Will expire
when successors elected or appointed I'M
dor the new Constitution shall have duly
qualified" o.. :,
The schedule of the State Constitution Of
v;roin;, onproved by the Congress and
| President of the United States January &c
1870, declares rs follows:
| "Thc several courts, except as herein
otherwise provided, shall continue with the
like powers and jurisdiction, both in law
and equity, rs if this Constitution had not
been adopted, until the organization of the
| judicial department of this Constitution. -
| And in the body of the Constitution (article
9th, section 25th) We find this provision :
" Judges and I'LL other officers elected or
| appointed shall continue to discharge the
duties of their Offices after the terms of
service have expired until their successors
have qualified"
| Under these circumstances there would
seem to be no doubt that the complainant
was, on the 18th of March instant, at least
de ,facto Mayor, and entitled to hold the
office until his successor had been elected
under the State Constitution and had duly
qualified, and that lie could only be re-
moved by any claimant of his said Office by
due process of law. On that day, how
ever, it is admitted that defendant, Ellyson,
| addressed letter to complainant claiming
to have been elected to the same office, and
demanding the books and papers thereto
belonging, and on the refusal of the COM
plainaut to surrender the same, the said
Ellyson attempted to obtain them by force
| and arms, and by confirming the complain
ant in his office without food, gas, or water,
until he should yield to his said demands.
In justification Of this force defendant,
Ellvson, asserts that he had been elected
the previous night Mayor by persons calling
| themselves the Common Council OF the city
of Richmond, and claiming their authority
| by appointment Of the Governor of Virginia
| in pursuance of an act of the General AS
sembly passed the 9Th day of March in
slant. Defendant, Ellyson, also asserts that
complainant, ChaEoon, was disqualified from
holding the Office of Mayor under an old
law of Virginia because he held the Office
| of United States Circuit Court Commissioner
at this time.
1t is one of the most trying and disagree
able duties of a Judge to declare an act
passed by legislative body void for I'M
constitutionality. Twice only in the dis
position Of more than nine thousand cases
| has this duty deyolvch uron me first, in
| 1863, when ! Was forced by my convictions
to declare against the law OF the United
States eScludin. from the privilege Of pro-
yiding bread for their families. by the
practice of their professions, al lawyers
who coul! not take tic prescribed oath:
commonly called iron-clad. This decision
| was very offensive to my friends Of the Ad-
ministration. and brought upon ME severe
l,,t fo,, Of VI ND J.
Gated by the Supreme Court of the United
States and by the profession lit large.
Again, IN 1866, | decided against the stay
law of the General Assembly of the State
of Virginia. This was equally offensive to
the debtor portion Of the opponents of the
Administration, yet this decision is now
generally approved, as far MS know, by
the best ju,sts of the country. In neither
Of those cases were my convictions OF uncon-
stitutionality so clear as in the case of the
so-called enabling act Of the Virginia Legis-
lature of the 9th March instant, whose effect
is to change elective officers into appointecs
| Of the Governor, and, under the ayowcd pur-
pose of declaring when vacancies exist,
| would create innumcrahle vacancies by
wholesale removal or dccapitation.
| \ very little examination Of this enabling
| act of the General Assembly OF Virginia,
out of which this case and the recent riot
in our streets hare been but the natural
and legitimate outgrowth, and COMPARE
son of its provisions with those Of the State
Constitution recently adopted by our pco-
pie and by a law of the United States, will
demonstrate the truth, quite apparent tc
those who framed the last-named instru-
ment, of the utter incompatibility OF the
act and the Constitution.
While the Constitution entirely rejects
the theory Of personal government and
gives no appointing power to the Governor
except in cases Of occurring vacancies lol
a limited period, dcvolying this great re,
sponsibility wholly upon the people and
| their immediate representatives Of the
General Assembly, the self-styled enabling
act, in violation of this great theory o.
popular sovereignty. would sweep thou
sands of established officers from then
places, derived and secured by solemn law:
of the United States, and would enable tht
Governor to exercise tremendous power
of appointment, denied by the Constitution
he has Just sworn to preserve and obey
I speak only of the effect of this act, no
imputing any improper motives to those WIZ
made it.
It's proper to say that its title is alto
gether just and fair, aud the same may be
said of the greater part of the body of tht
act itself. Only those provisions not re
ferred to in the title, and go Inconsistent
with the title that their insertion seem!
wonderful, are declared void. These pro
visions may have found their way into the
| hill ,rithont the nniicn or knnMledrp O.