Alexandria gazette. [volume] (Alexandria, D.C.) 1834-1974, 1874-05-12
Especial Dispatch to the Gazatte.
The RetrOcessiOn Argum ent.

VS.. Phillips came up to-day on certificate from
the Circuit Court for hearing in the first 10.
stance before all the judges sitting 10 general
term. Chief Justice Cartier and Associate
Justices Wylie, DIN, Humphreys and Mac
Arthur sat at the trial of the cause.
Westel Willoughby appeared for the plain
tiff, but there was no appearance tor the de-
PENDANT. it being understood that the Attorney
General of Virginia holds that the retroccsSlon
question is not properly involved in this suit.
Judge Willuugnby submitted an argument
for the plaintiff, substantially as follows:
This is an actiou in assuupsit brought for
| the uurpose of recovering IL sum OF money,
which the plaintiff cIai,us was illegally e1actcd
from him by the defendant, who, under color
of law, appears to be collector of taxes for
the State of Virginia, in the couoty OF Aexau-
dria. The parties are both residents OF said
county, and the taxes were assessed under color
of the assessment laws Of the State OF Virginia.
The plaintiff paid such taxes uudvr protest
denying the jurisdiction OF the State OF flr-
ginia over the said county, and her right to en-
force her laws therein, claiming such county to
be 10 the District OF Columbia; and that the
act OF Congress, purportlng to retrocede such
territory to Virginia is unconstitutional and
void.
The action is brought 10 the usual form that
actions are brought to test the validity and
legality of a tax.
The declaration sets out the grounds OF COM
plant alleging the unconstltutlonallty OF the
several acts by which the retrocesslon was at
tempted, and the consequent illegality OF legls-
la,ion depending thereon aud the payment, un-
der protest, of the sum sought to be recovered
To this declaration . demurrer has been inter-
posed, and issue joined upon such demurrer.
After review of the history of the fOrma-
ton of the District of Columbia, and after
granting the act of retrvcessloD, the counsel tor
the plaintiff proceeds TO say that 'iu accordance
with this act, Commissioners were appointed,
an election was had, according to which, there
were 1853 votes in favor of accepting the pro-
visions of the act, to 222 against 1t, resulting IN
= majority of SAL; proclamation of the fact was
made by the President and thereupon, with.
out further action Of Congress, Virginia passed
an act, assuming jurisdiction over the county,
decariup il to have been reauucxed TO the
Commonwealth; and has since continued to
exercise such assumed jurisdiction. This act
Of Congress of 1916, and all Legislation depend
ing thereupoD, We contend to be uoconstltu'
topal and void.
before entering upon the discussion of this
question of consttu,ioDallty, it may DC proper
| to advert TO some questions OF preliminary
character.
''The suggestion has been made, that this
court has not jurisdiction of the subject OF In
curry because, it is OF political nature, and that
tie court cannot determine political questions
In the case OF Rhode Island VS.. Massachu-
sets, II Peters 500, the question was one OF
boundaries; which State had jurisdiction over
certain territory. The court sustained the
Jurisdiction, because the rights OF property were
concerned.
Now it cannot be questioned, that this case
is one involving private rights, and Is therefore
cOgDzable by the court.
Another suggestion is, that the authority over
the county 10 Question,is such detucto authori-
y,that the court cannot question It's acts. But
a SLIGHT consideration will show that this is not
a case in which any such principle can be ap-
piled. This 10 the first place, is not case involv
ing the validity of some past transaction, which
had taken place With reference to such authorl-
ty, without objection and without protest. 1t
is o case directly made between person, who
claims to act by virtue, of the authority Ut the
assumed power, and one VINO reslsts or disputes
his authority, on the precise question OF the
legality of the assumed authority. 1t is not a
collateral proceeding, but a direct one. The
proceedings of defacto court may no be ques-
toned collaterally, but they cau IL direct pro-
ceeding brought for the purpose OF testing their
legality. But the acts Of officers or assumed
officers do not stand upon as high ground as
judicial proceedings. We have made the Off
GER himself party, aud be Is In court to de-
fend. if he can the authority for doing the act
of which we complain.
"But one more objection has been made to in
ouiry upon this subject; and that is, that il bus
been recognized, aud acted upon, and acquIesccd
in, SO long, that it ought not now to be disput-
ed In other words the proposition, is that,
although the act uay be utterly void, when
done, as it is, if unconstitutional, yet, that it
has acquired legality by such acquescence and
recognition. The answer to this, IS, that it has
never been recognized or acquiesced 10, by any
persons or body huvug authority TO recOgulze
It. or acuuiesce in it. IfCougress had no power
to enact ouch law originally, it can have no
power to give it force, by acqulescence In 1t, or
recognition of it. 1t is lu both cases question
of power. The repetition OF an unauthorized
act. hundred tunes does not render it lawful,
or more lawful than at FIRST.
"Having thus as We believe disposed of the
objections, to the inquiry as to the validity
and consttutionallty OF the act OF Congress OF
1916, we contend, first, that the power given
| 10 Congress, to establish a seat OF government,
has been fully executed, and is therefore ex
hausted. Congress, 10 so doing, has acted as
the agent of the people.
1T was authorized to accept the district for
the people, for particular purpose. Jurlsdic
ton, and control, then, belongs to Congress;
but jurisdiction is one thing, and the act of ae-
| $3.50 :, onotbor fan IF ha said that from
the word acceptance, can be necessarily i'm
Piled the power of REIMBURSEMENT We say
not
'tLet us analyze the clause of the constitution
to see what powers are thereby conferred upon
Congress- both in relation to the district, and
to the other places mentioned: Thshrst duty
to be performed by Congress, is to accept dis
trict, which may be ceded by particular States.
This is a distinct act, and one which may be
performed by virtue of the power implied by
the fact that such district is described as one,