The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1870-04-20

THE MAYORALTY CASE
BEFORE THE COURT OF APPEALS.
ARGUMENTS OF GENERAL WELLS
AND II. r. DANIEL.

At 10 O'Clock yesterday the Court of Ap.
peals resumed the consideration of the ha
bedS corpus cases Of Dyer and Bell.
Governor WELLS, as the representative
| OF Mr.. Chahoon, was the first speaker. lie
prefaced his argument by the statement that
the counsel for Mr.. Chahoon supposed il
conceded that de .facto officer holds such q
title TO that office as cannot be determined
by collateral proceeding. If the court de.
cldes that the prisoner committed by Mr.
Chahoon was committed by an officer de
Tdcto he must be remitted to confinement,
and then Mr.. Ellyson's claim to the Office
would be q subject of separate inquiry. He
would address himself particularly to the
validity Of Mr.. Ellyson's claim, resting as
he did solely on the enabling act.
lie held it to be self-evident proposition
that any attempt on the part of Legislative
authority to fill an Office created by the Con-
| stitution i'll any other way than that point
ed out by the Constitution is null and void.
The Constitution requires that the Mayor
shall be chosen by the people at general
election, and all officers the manner of
whose election is not specially defined shall
be elected blythe electors of the city, or ap-
pointed by such Of the officers thereof
us the General Assembly may designate.
The fifth section of the enabling bill is,
therefore, unconstitutional, for it autho-
riZcs the Governor to appoint trustees and
councilmcn. The seventh section is uncon-
stitutional because it authorizes the coun-
cilmen and trustees to appoint officers who
should be elected by the people. The con-
stitutionaiity of these provisions of the law
can only be sustained by one Of two hypo-
theses-cither that the offices were vacant
or, falling in that, that the Legislature by
It's own act had the power to create yacan-
cies. Was there vacancyp Mr.. Kent and
his associates of the Council, and MIR. Cha
hoon as Mayor, were in the active dis
charge of their duties on the 10th OF
March, and prior to that time no ques-
tion had been raised as to their be-
ing the incumbcnts of the offices.
Inc enabling act itself acknowledges that
they were in office by authorizing them to
cont'nue in office. There was certainly,
then, llo vacancy III fact. Now, was there
Il vacancy in law? The consequences of
the adoption of the new Constitution, or
the language of that instrument, are the
only sources from which a vacancy could
be inferred. Section % of Article VI. of
the Constitution expressly preScribeS that
all officers underthe old regime shall hold
oycr: which must be conclusive unless, by
Il constrained construction, it is made only
to apply to officers elected or appointed lln-
der the new Constitution. He cited the
case Of Governor Pcirpoint to show that this
principle had been accepted by this very
court, il being held that although his term
expired January /, 1868, he was legally cX-
crciSin. the duties of the Office of Governor
Of Virginia several months after, his sue
ccSSor not having been elected.
General Wells then expressed the opinion
that when Virginia WIS rcadmittcd to the
Union she did not come III rs the equal of
,l IL hi,.tp NJ Shn nd
mitted upon the fundamental condition that
she has done the thing required IN good
fuith and that she shall never amend her
Constitution in certain particulars.
\ fair construction Of the enabling act
itself continued all officers in office who
qualified before 4 certain time. Neither
under the Constitution nor the laws was
there q legal vacancy. There was none in
law or in fact This very enabling act pro-
yidcs that officers shall continue in Office
until their successors are elected and quail
fed. | have no objection to that portion OF
III" act. In the Constitution Of Kansas
there WAS 4 provision in relation to holding
over which was in the same language as
th;.t in ours. The Supreme Court Of that
State held that all officers Of the territorial
| government became State officers.
Mr. NEESDN: Didn't the Constitution
provide that these officers should hold
! over:
Mr. WELLS No. sir-cXcept as I have
said. The construction contendCd for by
the opposing counsel would produce anar-
! civ and confusion as Il necessary result.
have cited cases to prove that unless spe-
cially inhibited the officers hold over.
| Mir. NELSON /: What's the authority for
that:
Mr.. WELLS: ] will give the cases.
There are half q dozen Of them. ] have
prepared Il brief of my argument.
Now, as there was no vacancy, / will in
quire if the Legislature could make va
cancy: The 22d section Of Article V. oil
| the Constitution reads:
"'i'he manner of conducting and making
returns Of elections, of determining con.
| tested elections, and of filling vacancies in
| Office, in cases not specially provided for by
this Constitution, shall be prescribed by
| law"
Nothing up to this point-not word as
| to creating vacancies. That section con.
cludes:
"And the General Assembly may declare
| the. cases in which any Office shall be
deemed vacant where no provision is made
| for the purpose in this Constitution"
They may declare the cases, the circum
stances, the facts, which constitute va
| cancy. Have they done thatt No; but
they have undertaken to create q vacancy
How can they ill Il vacancy in the Council
The Constitution says it must be done by
some city authority. There are but two
cases in the Constitution in which vacancie!
are provided for.
Ii the argument of the gentlemen OH tho
other side Is correct, the Legislature may
yacate every Office in the State. Your
Honors hold your seats by sutferance. The
Governor holds office by sufierlnce. Here
are twenty-four gentlemen calling them
selves councilmen and electlng a Mayor
The moment this Mayor qualities he may
remove every councilman. 1t Is perfectly
monstrous to say that the officer appointed
has the power to remove the appointing
power. Can it be that the Council may
elect Il Mayor to-day and the Mayor may re.
move the Council tomorrow? The Mayor
ranks THE Council because he is elected by
the people.
If the Legislature has the power to ode
clare vacancies" and if "to declare" means
Ito create . q vacancy, then we shall have
anarchy and confusion. Your Honors can
only be removed by impeachment. But
suppose the Legislature cannot get two
thirds vote: Can they vacate your offices
to-day, and tomorrow create a new office,
and put in new men? What means the con-
stitutional provision that there shall be
three departments Of the Goverpment-Ie-
eislatiye, executive, and judicial! 1t is
monstrous to contend that the power "to
declare" is the power "to create vacan-
cies.
Suppose Chahoon dies. There is a vacancy
by the act of God. If he removes his resi-
dence out of the city the Legislature may
declare his Office vacant. The Legislature
has the power to require Of sheritfs new
bonds. and to declare their Offices vacant if
they refuse.to give them. That's what the
twenty-second section means; but not
mower Ia create vacancy in an office which