The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1870-04-07
tons, rss-4o. Where the right Of the com.

nlainant Is clear, as against an lieSai tos
%eSsion, nadnddmus in the name ci Tue W.
vernn,cnt will lie. commanding thc lnausi
ION of the rightrul claimant-Ansel ana
smas. 1876 lien. and Nj. V. 3, y. l. No
remedy is an adequate or proper one WliiSh
,Iocs not try the title to the Office d,rectiS' |
nv n nrocecdinc to which the alleged lntru-
iar q a marty. and by which he Will De
,,,s.cd Il not entitled Blackwell on taH
tiles, az. and cases cited, city of plymouth
40 painter, II, con-, So. This suit, II sue
.essf,ll, while it. would enjoin Ellyson IRON
exercising the powers OF the Office, Wouio
cavc him in possession OF IL, chlo!.as i.s
nrofits. In Caesar Gritiin's case the attempt
yas made to release 4 prisoner sentenced lor
,alory bv Judge shelley on h0dedS corpus,
hccai,sc the Judge, when he tried him, was
disabled from holding OF exercising tie
nfi;ce Of Judge by the third section Of the
fourteenth amendment. But Judge Chase
treated the remedy, even il the interpretation
existed, as inappropriate ; because While II
:clevei the prisoner it did not remove the
Judge. There beng " a plain. adequate, and
complete remedy at law in this case
equity jurisdiction is excluded 10y statute.
Passing to the question OF title, he m
sisted that the complainant, seeking reliei
by the affirmative action OF the court, must
show himself entitled. Until nc does t'iis
terial and he commended:
First. That the complainant was origi-
aallv appointed by military authority to Il
stale Office, and had taken the official oatliS
prescribed bv the law of the state, ana fiad
proceeded to administer the state laws. i!e
,xamined the reconstruction aciS 10 snow
this. The Government of Virginia III CHS
led as an organized Government unuer tl'Hc
arIs-provisional. it is true: that l., subject
Ior its continuance to the will OF the Unlled
States but il had never been c!llnScd III us
structure, though the OF election ana
appointment had been vested IN the lnlileaF!
authority.
Second. That by the act of Congress of
eth of january, 1870 the state, having com,
plied with I'LL the prescribed conditions. and
elected her rcprcscntatiresi in Congress, was
distinctly and expressly declared to be en-
titled to representation in Congress; and
upon this event, by force Of the fifth section
of the reconstruction act OF Marcn "a,
1867, all the provisions Of the act when de-
clared her Government provisional became
inoperatiye and void. She was thcncetorth
and is now state III the Union, with 1uil
control over her OWN affairs. ms was ac-
knowlcdgcd by General Candy III his order
turning over the state to the state authori-
ties. The offices OF the state, no matter
who are entitled to fill them. are now re-
mittcd to Stare authority and the co9nl-
zance of the State courts, which shows fur
Their the want of authority in this court to
interfere in the present instance. General
CANDY had no right afterwards to make the
order continuing in Office officers who had
been appointed to State offices under the
Provisional Government, its provisional cha
ractcr having ceased. Here was the origin
the seminal principle OF all the mischief we
nave had to deplorc. But for this unau.
thoriZed and much to be regretted act oil
the military commander the complainant
would never have been encouraged IN the
course of conduct he has pursued. lie re-
ferred to the construction Congress placed
on the acts in this respect, when 1t voted
down the proposition of the Reconstruction
Committee to embrace in the act admitting
he State II provision that persons holding
office by appointment or authority OF the
district commander should continue III
office "until their Successors under the
state Constitution had been duly chosen or
appointed and qualified" lie quoted Mr..
Bin chants language in That debate, when he
asked when was such folly ever at
tempted before in the forms q law since God
made heaven and earth: Where does that
ind ANY parallel III your legislation, to con-
iinue officials, executive. administrative,
and judicial. in Virginia appointed 10y 4
military commander under Il former ACT OF
Congress, and TO allow them 10 exercise Tue
functions of their offices in Virginia alter
>he shall have been admitted TO representa-
lion in Congress, ana III inc mean tlhle
strip the state of the Legislature alto
gether:" Some reliance has been placed
on the " fundamental conditions" sought
to be imposed on the state by the act oil ad-
mission, rs showing that the state Is not yet
fully in the Union. Grant it. and yet the
consequence argued for does not follow.
The admission TO representation l. the
event on which the reconstruction acts be-
came inoperatiyc, and not the full admission
of the State into the Union. il there hc any
difference between the tW"thingS. No ease
is made under these fundamental condi-
tons, nur--shuuld such = case ever occur
could it be made Il case of equity jul
risdiction. Those conditions were not
prescribed to the people OF the State
is the terms of admission they had TO
adopt, and did adopt; but were Su-
per;ddcd after the people had acted. The
people have never been asked or allowed TO
treated them Is futile and imperative. but
acUlieSccd in them rather than delay the
measure Of admission by opposition. Their
fate will depend much un the illcluatlGn OF
parties. Their authors will enforce them il |
they can. while, should they lose power. they |
will probably &c repealed Qr di>rcgarded.
The terms of General Canby'> order con-
tinuing the military appointccS in Office de-
serve attention. They are continued until
their successors shall be "clcctcd or ap-
poi2.tcd" under the new Constitution.
Now, the defendants have been zap
pointed " to Office under the new ConStitu-
ton. Whether the law by which it was
done is in accordance with that instrument,
he would never have undertaken to decide.
And again. the order i in general terms. |
Had his attention been called to the fact Of
the compartments incapacity, by reason of
his holding Il Federal Office, most probably |
he would have been excepted from those
terms.
Third. That the offices of The State having,
rs shown, become vacant by The cessation
OF the power which filed them, and the Con-
vcnton which framed the Constitution
having failed to provide for this emergency,
ii was the right and duty Of the LcgcSll-
ture, BOTH in virtue Of it> sovereign power
to take care of the State and an express
grant in the Constitution, to declare and
provide for the vacancy. One notion l.
much harped upon: That the office Of
Mayor having been made elective by the
people, there Sno power to till it byappohlt- |
Inent. But what office: Not that which the
complainant claims now TO hold by former
appointment, nut TIC olicc 10 De newly
created under the Constitution, many Ofthe |
duties of which, and the mode Of perform
ing them, and the salary, have yet to be pre-
scribed by law. so the Offices ofCity Council |
men, filled under the enabling act, are those |
now existing, and recently held by military |
appointces not those which have yet to be |
created under the Constitution. No such |
body yet exists; none such is mentioned in |
that instrument rs existing. 1t will be ere |
ated by a charter yet to be passed. The