Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1870-09-20
THE sHRIEvALTY.
Wright Va. Curry, and Curry We. Wright
Decision Of Judge FlIppla In the
Case.

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as follows:
On the first of March, 1868, Curry was
elected sheriff of Shelby county, for the
constitutional period Of two years. On
the 10Th of March, 1868, he was regularly
indicted into Office. On the 18th Of March,
1870, another election was held for same
office, at which Curry and Wright were
On the 2sth of March, 1870, Wright
filed In the Circuit Court a proceeding to
contest the election of Curry. 1t is al
legged that some time before the last Of
March, 1870, s. n. Shock, the Commits
sioner Of Registration, who, by law held
said election, issued a certificate of cleo
ton to Curry, but gave it to one Cranmer,
the clerk of said commissioner, to be de-
hvered to Curry. 1t Is denied that said
certificate was ever in the actual or con-
structive possession of Curry, but that
Immediately after said election, upon an
inaccurate, hurried and erroneous compar-
ison Of The votes cast at said election, q
blank certificate was filed out for said
Curry, but was never delivered, and that
upon a more careful comparison of the
votes it was s~scertained that Wright had
a majority of the legal votes cast at said
election; hat thereupon the certificate of
election was issued TO him under date of
March %, 1870, but not delivered, for rea-
sons hereinafter stated.
On 31st March, 1870, Curry filed his bill
in the Chancery Court of Shelby county
restraining Commissioner Shock from is
suing a certificate of election to Wright.
This injunction, it may as well be re-
marked here, was dissolved on hearing,
by His Homo Chancellor Morgan, on the
18th April, 1875, and thereupon the Com
missioner of Registration issued the GER
~tificste of election, dated March 18th, 1870,
to Wright.
on 9Th April, 1870, Curry, claiming to
have been elected, appeared in County
Court and asked to be indicted into the
office Of Sheriff, but the consideration of
the matter was postponed to the 18th of
April, 1870, and then by the Court refused.
On 18th April Curry filed a petition in
the Circuit Cour for mandamus, praying
that Justices of Shelby county be COM
PEELED to administer oath and induet HIM
into Office of Sheriff, or show cause, etc.
This petition for mandamus has hereto
fore been dismissed by his honor Judge
Swayne, and exception taken to said order
of the court.
On 18th April, 1870, Curry also files in
formation, praying Injunction restraining
Wright from exercising h duties of
Sheriff, and praying that all things be-
suspended until contest proceeding in
stituted by Wright on the 18th of March,
1870, be decided. Wright has since dis
missed said contest proceeding.
On the 10th of April, 1870, Wright files
his information, praying injunction re-
straining Curry from performing the
duties of Sheriff, etc, and that office be
decreed TO relstor Wright.
Answers have beer filed to these infor-
nations, denying the material facts there
in stated, and asking in each a dissolution
of the injunction which had bsen granted
upon the filing of each of said informa-
tions.
1t should have been remarked that
Wright, on the 18th of April, 1870, sp-
pesred in County Court, producing his
certificate of election, took the oath of
Sheriff, gave bond as required by law and
was regularly indicted into said Office.
Motions have heretofore been made in
the informations filed by Curry VS.
Wright and Wright VS. Curry, and
the same were argued before his
Honor Judge Swsyne, to dissolve
the injunctions granted therein, and his
Honor denied the former and granted tho
latter, putting Wright in full exercise of
the functions of the Office and restraining
Curry romAexercising the same. Such in
brief outlines is the history of the mutual
steps taken In these causes u to thepresent
period, and to give which 1 have thought
proper in order to a correct understand |
ing of the motions now before the court.
Upon these informations as they now
stand, ten interlocutory orders are now
asked by the counsel of Curry. No ex-
preston of opinion is given at this time,
the validity of the proceedings, nor
before the enurt as to their appropriate
ness in accomplishing the object sought
TO be attained; this will be done upon
final hearing.
The first motion is to have these causes
no~n-advsnced upon the calendar and
out of their regular order.
The second motion is to require that
Wright give a bond covering gross, in
Of net proceeds as the bond now
stands.
Judge Flippin recited at length the au-
bearing on the first motion, and
said that "in view of the fac S and the
reasOnings Of the Court, we can but con-
clude that the first motion is at this time
prematurely made, and for the present
must be denied" on the ground that ae-
cOrding to Chancery practice it was neces-
sary to give six months notice to make
up the proof, from the term at which the
pleadings were made up. He, however,
it as his opinion that in all cases in
which the right to hold a public office was
involved, should be decided with as little
as possible.
Now, as to the consideration Of the
second motion, that Wright be required
10 give bonds covering the gross, instead
Of net receipts of the office: The theory
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injuries in consequence of the vio-
lation of rights. This is a fundamental
A pecuniary compensation in
lieu Of the rights of which the party has
been deprived. Now, of what alleged
rights has Curry been deprived in this
suit? The receipts of the Office of sheriff,
are being received by Wright. But
S he damaged to the extent of the actual
gross receipts of Office, even if it should
Ultimately be determined hat he is the
IheriH de jaTe? Can he receive more
rom Wright than what he would have
were be now in Office discbargink
IS functions and receiving its emolu-
If SO, he would be getting more
han his actual damages; and this, as we
ave just seen, would be violative of the
fundamental rule that damages are in
ended as a compensation for actual inju- !
les received The court has been re-
erred to the case of the United States VS..
Addison, 8 Wallace, 291, in support of this
econd motion. That was a case where
had been Mayor of the city of {
Washington; ran again for the Office, but
he certificate of election was given to the :
ival candidate, who was indicted into
ifhce. A contest arose, and bond was re- i
Iuired to be given pending b litigation,
or the amount of the salsry. That was ]
light, for there we're no expenses incurred |
in administering that office; its
ntlre receipts were actual damages to the 1
'Srty deprived, who was entitled to the c
anne. But here the case is dissimilar.
'ertaln expenses are neces-
arlly incurred In dlscharging the duties c
I the ONCE, It matters not who may be c
Is incumbent, whether Wright or Curry. g
)educt these reasonable . when &
scertsined, which must be incurred in t
unning h Office, from the gross re- {
eipts, and the remainder must be tbs ac- a
oal damages sustained. This seems to b
court the true criterion of damages in a
asses ike these. One office might incur
sss or more expenses than another-lees 8
r more than was reasonably necessary; O
more, It would not be right that he q