New-York tribune., 1876-11-24

reeved nv said gentlemen or some Of them and that
would be replied to- that the following lsa true copy Vi
as PAsCo, esq-sIR: Referring to the inquiries made
OF me by you and other gentlemen last evening. nav
say that shall be very happy to receive 1fom yu n
writing any suggestions you may desire TO make as 10 e
question whether the Governor or the state M h
vote for Presidential electors" - ,o,,,
"i7"'i'0"' Wv" ' NJ. l.. STEARSs
Mr.. Ranev opened the case for the Democratic
electors arguing first, that the Governor had no
mower 70 canvass the votes under the law of 1S47,
but that the electors are State officers under the law
of 1872 and next that this court has jurisdiction 10
enoin the Governor because in giving certlhcates 10
the electors under the law of Congress, he mas ho
discretion and exercises only minlsterlai uu'y
that it was not question as to how the Governor
should execute law. but whether he should ac'
under an alleged law not in force because repeaied
GEN. BARLow's ARGUMENT.
Gen Barlow's opening was long, candid, impress
sive and fully sustained by authorities lie demon
srated first that the court had no jurisdiction 10
entertain bill in equity against the Chlei ENecue
of n State TO restrain him from doing an act not
merely ministerial nor from from the exercise Oh
political or executive power. The principal case
cited was that of the State of Mississippi against
President johnson, to restrain him from executing
the Reconstruction acts of Congress, where the su-
pree Court of the United States refused even to leu
the bill in equity be filed, characterzing 1t as an
attempt to induce an encroachment Of the judicial
ON the Executive Department of the Government; !;
the court could have no possible power OF enforc-
ing that if it should attempt it, Gen. Barlow
declared second, that the act here sought TO DE
restrained is not purely ministerial, but IL per-
formed involves the discretion to determine whch
of two statutes that OF 1917 or that
of 1S72-is in force. In this connection was
cited Decatur agt. Spaulding, Ii Peters, where the
Secretary of the Navy had the discretion 10
decide whether an act or q resolution ot Congress
was in force, and could not be subjected TO man
damus proceedings The third point was that the
want of power the part of the court 10 interfere
with the executive department is jurisdlctoriai ahu
renders any proceedings absolutely null and Noid'
On this point was cited Walton agt DevlnS, I'll
Illinois, 2O1, where proceedings to enjoin election
officers were held null and void and to be dsrcgarded
by every one.
Gen. Barlow continued that the only cases in
which public officers have been sub
iected TO proceedings in equity are where
they have come into the position of trustees to
funds or property, and are engaged in committing
waste or in some way injuring property. This posi-
ton was supported by People agt. Canal Board,
So n. Y..l59O; Mumford agt. Green Rhode Island; /;
also by decision of Chancellor Kent to the effect
that there is no case in the whole history OF English
Chancery Jurisprudence where an equity court has
undertaken to interfere with the merely political
duties of public officer not affecting the rights oi
property 1t was then argued that there is no such
thing as property in political Office as regards the
person elected, least of all as respects the
office of Presidential elector which has no
emoluments, and especially when, as in this
case the perhon does not aver that he was
elected but only that votes were cast for him
there is 10 equity in the BILL because there is an a
propriate legal remedy for the electors by quo war
ranto and It is answer to this 20 say that there
will not be time for that proceeding. The mere
want Of time TO pursue the legal remedy Is no fonn
dation for interference People agt Galesburg ~ l
4S5) Further, the plaintiffs have no right To bring
this suit either citizens OF candidates for electors
they had no interest in the offices except in common
with all citizens; the people only can act in such
case Doolittle agt. Supervisors Is Ncw-York) even
if they are elected they cannot bring thsbil il does
not appear how the Governors action, as charged,
could injure them in any way, and 1t does
not appear that the Governor has threatened or in
tends 10 canvass the votes under the law Of 1917.
Gen. Barlow declared that the contrary it ap-
pears that he is only considering the subject, and
has offered the plaintiffs requested, an oppor-
tunity to submit arguments on the subject; mere
apprehension will not warrant an injunction. tSee
People agt. Canal Board, 50 New-York 3S0l
With reference TO the canyassers Gen. Barlow
said the mandamus cannot issue against the can
vassing board to compel it to go and canvass the
Presidential vote the law does not allow the board
to go on till 80 days have elapsed. un-
less all the returns are in; tho applica-
ton on its face shows that they not all in, and,
therefore that the board cannot go if they may
90 on when some of the returns in, il is matter
of discretion for them to determine when and in what
manner they will proceed. The court cannot excr-
else discretion belonging TO the board aud compel
them to go on United States agt. Seaman II
Howard, 10; the court, being one of seven
inferior circuit courts has no Jurisdiction of man
damus cases except in aid of its special limited uris
diction, which does not include election cases nor
the counting Of votes cast at any election, and
therefore its action will be wholly null and void.
general power to issue the high prcrogative wrts of
mandamus, certorari, prohibition, quo warranto,
and habeas corpus, while the circuit courts are
limited by Section of the Constitution to the use
of those writs only in aid of their special juris-
dictiOn.
sUBJKCT FOR EMINENT NORTHERN JURISTS.
In the course Of his argument Gen. Barlow said
Various gentlemen here myself included, have been
invoked by teegans from the North 10 give upon their
honors candid and honest opinion OF the situation In
Florida II they needed TO be appealed to in this sng
lar way. I should like in view of the fatal defects,
errors, omissions and egalities OF this b and the
proposed proceedings, TO submit them TO the candid
opinion OF that great Democratic lawyer the first law
yer in the land Mr. Charles OConor; 10 that Democratic
ChefJustice Of Mr. Tildens State, Sanford f. Church.
In view Of the have cited decided in his court and
lastly TO that able Democratic lawyer Samuel j. Tiden
himself. would Ike TO ask them whether, II by the
proceedings here initiated injunction should be