The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1870-04-30
THE MAYORALTY CASE.
The following decision was rendered by
the Court Of Appeals on yesterday

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There are two persons now claiming to
he Mayor of the city of Richmond, and act
ing as such-Gcorge Chahoon and Henry Il.
ElIyson and these two cases Of hd6eaS cor
pus, instituted by persons arrested by the
warrant of these two claimants respec-
lively. have. by an umicable arrangement
between them, been instituted for the pur-
pose of obtaining the opinion of this court
upon the question, Which Of them is lawiul
Mayor of the city!
This is deeply interesting question, not
ONLY to the city of Richmond, but TO the
State at large, and its Importance, and the
necessity of an early decision of 1t, has IN
duced the court to take up the cases LOT
hearing at the earliest possible moment, Id
order that the question involved may be ae-
cided as soon as possible, consistently, with
a proper examination and consideration of
it. We have fully heard the argument OF
the able counsel on both sides OF the ques-
ton, and have given to it all the consldera-
ton of which we are capable. The result OF
our deliberations l will now proceed to an
nounce:
There cannot be two Mayors of the city
of Richmond at one and the same time. III
Chahoon is Mayor, Ellyson is not; or, if
Ellyson is Mayor, Chahoon is not.
Chahoon claims to be Mayor by virtue OF
an appointment as such in 1868 by General
Schofield, then military commander OF the
District of Virginia, acting under what are
called the reconstruction acts; and he also
claims that his authority is confirmed by
what is called the enabling act it
self, which he admits is, to that
extent, constitutional. But he ill.,
sists that that act is unconstitutional SO tar
as it essays to authorize and provide for the
appointment Of another person as Mayor.
On the other hand, Ellyson claims to be
Mayor by virtue of an appointment made
in pursuance of that act.
The whole question, therefore, resolves
itself into this: Is the enabling act, or at
least that part of it under which Eliyson
received his appointment, constltutlonal!
We confine ourselves to that part OF the
act because it is the only part which neces-
sarilv comes under consideration i'll these
cases. There is another part OF the act-to
wit, the provisions in the second section,
which subject any judgment, decree, or
order, made by the Court Of Appeals ut the
term thereof commencing on the 18th day
Of January, 1870, to the supervision and
control Of the Court Of Appeals organized
under the Constitution, upon the question
as to the constitutionality OF which we un-
dcrstand this court will soon be called upon
to decide; and we wish therefore not to
PREJUDICE that question even collatcrally.,
This court undoubtedly has power to de-
clare an act of the Legislature to he uncon-
stitutonal and void; and it is the duty OF
the court to do SO i'll proper case. IL IS,
however, L very delicate power, to be eX-
ercised very carefully and before an act OF
the LEGISLATURE is annulled RS unconstitu-
tional the court should be well satisfied that
it is so. Prian1 fdcie, every act OF the Legs
lature is constitutional, and the burden OF
clearly showing the contrary devolves on
him who asserts it. If the question be
doubtful, it will be solved in favor OF the
validity of the act. The members OF the
Legislature and the Governor arc elected
by The people, and are presumed to be both
intelligent and patriotic. Before entering
upon the discharge Of their duties they
take an oath to support the Constitution of
the State and of the United States; and it
is not to be presumed thatthcy would unite
in passing and approving an act without
being well satisfied that it is constitutional.
The preamble of the enabling act, which
was approved March s, 1870, is i'll these
words:
"Whcreas grave doubts have arisen as to
the right of the civil officers Of the Com
nlonwealth, the Governor, Attorney-Gene-
the General ASSEMBLY excepted, to con-
tinue to hold their offices and to exercise
the powers, perform the duties, and enjoy
the privileges and emoluments appertaln-
ing to the same, and as to the legality OF
their acts as such officers since the adlnls-
sion of the State as one OF the coequal
States of the American Union And where
as the failure to recognize the official acts
Of such officers as legal, and their removal
| from Office ut this time, would cause great
confusion and embarrassment throughout
the State, therefore," &C.
| Then follow the thirteen sections Of the
act and first of which recognized as legal
all such officers described in the preamble
who are eligible to office under the existing
Constitution and laws of Virginia, and who
qualified on or before the Goth of January,
1870, (the day on which the State was ad.
mitted to representation in Congress-; pro.
yided that all officers Of whom bonds are
required by law for the proper discharge OF
their respective duties should give or renew
their bonds with good security within the
time and in the mode therein prescribed
The second section legalizes the acts here
tofore done by such officers and otherwise
lawful, subject to the proyiso in regard to
any Judgment, decree, or order, made by the
late Court of Appeals as before referred to.
The third section relates to the filling of VA
cancies in the office Of justice Of the peace
and constables now existing, or which may
hereafter accrue before an election for such
officers shall be held under the Constitution
The fourth section vacates the Offices ol
circuit and county clerks at the first term Of
their respective courts hereafter held by
judges elected under the present ConStitu.
ton, and authorizes each one Of such
Judges, at the first term Of his court, to ap.
point clerk for said court, to continue in
Office until his successor shall be regularly
elected and qualified vacates tue offices Of
attorneys for the Commonwealth and
sherifs at the first term Of the county court
hereafter held by judges elected under the
present Constitution in their respective
counties, and authorizes such judges then
to appoint attorneys for the Commonwealth
and sherifs for their respective counties, to
continue in Office until their successors are
elected and qualified under the Constitu.
ton; and provides for the execution OF
bonds according to law by the sheriffs and
clerks appointed under this section.
The remaining sections, except the last,
which merely declares the act to be in force
| fromits passage, more imme diately concerns
the question now under consideration, and
will therefore be set out in full. They are
as follows:
Fifth. That for the more efficient gov
eminent of the cities and towns Of the
C Commonwealth, the Governor Of this State
shall. as soon as practicable, appoint as
MANY councilmen or trustees for each city
and town now entitled to trustees or coun-
cilmen as are now provided by law.
Sixth. The councilmen and trustees
now exercising the functions Of such offices
NAV continue in such offices till the coun,
cii,nen and trustees appointed as provided
in the foregoing section shall qualify, and
no longer, and shall I'LL vacancies in Their
respective bodies occurring during their
continuance In office,