The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1876-12-05
From the New York Tribunel
The Pith of the South Carolina Dispute.

They are trying to force into the House men
who may or. may not be legally elected, but
who certainly have not as yet any legal proof
of it in the shape of a certificate of election
which the Clerk of the Assembly can recog-
nize. Precisely here is the pth of the whole
matter, and it is most deplorable that the blun-
dering about troops should be permitted to OBJ
scure the real ISSUE 1t was substantial justice
which the interference of the troops secured,
although it ought not to have been secured in
that way.
But. it is said, the proper certificates of cleo
ton were fraudulenty denied to those Edge
field claimants, in defiance of tine fact that they
had been duly elected and that the Supreme
Court has remedisd the difficulty. Now the
constitution and laws of South Carolina dis
tinctly provide that certain officials shall can
vass the votes for members of the Legislature,
and, if they find that any were unlawfully cast
or returned, shall throw out such returns. The
Judicial power is clearly given, and there is no
rule of law more thoroughly established than
this, that where discretionary power is intrust-
ed to certain body or officer, no other branch
of the Government can interfere with the exer.
else OF tnat discretion. 1t is claimed that the
court, and not the board of canvassers, had
power to decide and the court attempted to do
80 by writ of mandamus. But the Supre me
Court of the United States has repeatedly held
that in such case no court has power to inter-
fere by that writ. Thus in Uuited States act.
Guthrie az Howard, 3O4), the court says:
"The only acts to which the power of the
courts by mandamus extends are snch as are
purely ministerial, and with regard to which
nothing like Judgment or discretion!in the per-
Torrance of his duties is left to the officer; but
wherever tho right of judgment or discretion ex-
lists in him. it is he, and not the courts, who
can regulate its exercise"
So, in the case of Decatur agt Paulding
when court of the District Columbia attempt
ed by mandamus to compel the Secretary Of
the Navy to perform an act not merely minis
terlal, the Supreme Court declared;
"The Court Icould not entertain an appeal
from the decision of one of the Secretaries, nor
revise his judgment in any case where the law
authorized him to exercise discretion or judg
ment Nor can it by mandamus act directly
upon the officer and guide and control his
Judgment or discretion in the matters CO M
united to his care, in the ordinary discharge of
his official duties."-[14 Peters, 524
1t is therefore clear that the court had no
power to direct the board of cauvassers 10 the
exercise OF the discretionary power intrusted to
it, and any writ of that nature was void. The
whole act of the court was fragrant usurpa-
ton, and we believe there will be found few
lawyers OF ony party hardy enough to defend
1t. But if it mere not it happens that no such
writ was served upon the board. There is not a
shadow of proof that the board knew that any
order had been made by the court, nor is there
any proof whatever that the board, which met
at 10 .. M, and adjourned at p. M, had not
issaed its certificates before the court, which
met later in the day, had issued any order.
Thus, all that appears thus far respecting the
validity OF the certificates issued, is that they
were duly given by the only body constitution
ally empowered to canvass the votes and de-
eide as to the validity of returns, and were
given in the absence of any order, void or val
Id, from any court whatever, calling tor a Diff
terent decision. The members who were re-
fused certificates, on the ground that they were
not legally elected, demanded seats by virtue
OF the undelivered order of the court requiring
the board 10 give them certificates. But that
very court had empaatioaIly refused to give
certificates to those persons, holding that this
power belonged to and could only be properly
exercised by the board of canvasse1s.
Now, 1t is the right of these ron-certifiei
persons that is in dispute, they are contestants.
But their admission as members would have
given to them the power to decide their own
Case in favor of themselves That is what
Gen. Hampton and U. S Senator Gordon de-
mand; it is what the clerk of the late Assem-
bly, resisted. Do fair minded men, of what
ever party, think he was wrong to resist?