Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1870-04-27


these proceedings, protects him from the
charge of usuTpation, as INTENDED py
the statute to be understood; and,
coupled with his actual possession OF the
Office by virtue Of his former election and
induction. however mistaken in his rights
under the proceedings relieving him from
that character Of usurper that authorizes
this proceeding under the code. In order
to injunction prayed for the contrary tact
and position Of usurper should manifest
lv appear But, on the ground OF the
public policy and peace Of the eommu-
nifty, and because both parties cannot ex-
ercise the office together, and the relatoT
might bring in Office by the forms Of law,
and so far as the present proceedings au-
thorize me to determine, whether so en-
titled or not, under another form Of pro-
ceeding allowing that inquiry, l must
grant the application for the Injunction
prayed for. Let ii issue,
2. As to the matter Of Curry VS.. Wright,
being motion to dissolve the Injunction
restraining the defendant Wright from
exercising the duties of Sheriff, etc,
''until final Judgment in the contest here
in (meaning the dismissed proceedings
aforesaid), or further order of the court"
Had the contest" proceeding not been
dismissed 1t is doubtful If the Injunction
could be properly and fairly dissolved,
because the relator, being in actual pos
session of the office, whatever the P7TDld
fdcie right against him, it would have
been contrary to law and good conscience
to displace him and put in the adverse
claimant pending the contest in which
alone the rights of the parties were fully
triable and completely cOmprehended.
r. Hill, 259; "a Barb, 205; 13 Ind, 54S; 81
Barb, 55: do. 254: II Ind, 554; IL Md.
3Og: II La, and 30 C.l By the dismissal
of that proceeding, however, the office
and object OF the Injunction have been
removed. No such CONTEST is now
pending, to await which the injunction
was Obtained. To retain and continue
in force the injunction for the
purpose now of subserving an
than that intended in the petition, and
fiat would be improper. It would be to
change the proceeding to suit the con-
venience of the hour and of the party, and
in disregard of the existing facts as before
recited, that the defendant had received
his certificate of election from the Com
missioner, duly appointed such by the
Governor, and was, by the proper tri-
bunal acting in its ministerial or judicial
capacity, inducted into and invested with
the Office according to the practice in sHch
cases AID the law; and / cannot assent to
the argument that the authorized certih-
cate is without material significance. 1t
would be 70 make the law meaningless
and idle. What was its intentiOnf Ger
Iainly that for which 1t was, in this case,
as in all cases. used by the parties holding
it as persons elect to office, a paper upon
which, as evidence, investiture ofoffice is
had, and as in several instances is also by
express words of statute provided, and,
furthermore tc a considerable extent, the
same reasoning applies here as in the
matter Of Wright VS.. Curry, in regard to
the forbidden investigation, in this pro-
ceeding, of the validity of the election.
It is not likely nor creditable, nor hope
ful, for our institutions, If true, that
fraud and corruption, as alleged by both
parties in the course of these proceedings,
have been practiced in this election. The
political atmosphere as infected by
partisans, mag be, indeed, sadly taint-
ed, aye, fetid with fFaJ.d end corruption
when the civil elections, contrary to the
intention and provision of the fundamen-
tai law OF the State, are involved in the
passions, ascerbities, iHtsmperance and
madness of partisan strife, whether in
this county or any other, or in this State
or any other. It may or may not be true
that colonel Curry was IN fact elected,
that the certid0ats was or was not by
fraud and bribery given TO General
Wright, and that the amendment of his
statement of the vote (which the Com
missioner EaQ the right 10 Idht II uouo
in good faith), DID or did not express
the truth, and that all behind or beneath
the forms that, in this proceeding iE law,
sutitle the defendant to dissolution OF
the injunction and the present posses
sion OF the ofice, is or is not in favor of
the relator. These things under the law
in these proceedings cannot determine.
or consider they belong to anoth ehand
different proceeding, which the Cod iis-
closes to the parties, TO be res2rsed 10 In
their pleasure. ] must, therefore, dis
solve the injuncti5n in this behalf.
The effect Of these rulings is 70 refer
the parties 20 a contest proceeding in
which the validity of the election
and all the facts involving the rights
of the parties may be tried and deter
mined, but leaving thsm at present and
under the facts, so far as the facts may be
considered now, where the law and the
forms Of the law have placed them.
The relstGrs will pay the costs of their
several proceedings.
J. T. SWAYNE, Judge.
April, 1870.