Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1884-08-09
SATURDAY. .......AUGUsT 0. 1884.
Tho Opinion.


The opinion Of the supreme Court OF
AppeaIsi IN the case Of WISE Us. BIGGER and
DvRa, ~ It appeared in the DispateA Of
yesterday. contained several typographical
errors. The word "mlgsiory" ought to
have been "nuestory." This was not q
material error; but 70 make the Court say
= msndamus will "be" instead OF will
"Ic,v or say "imparts absolute unity"
instead Of "imports absolute verify" was
inexcusable. The correct phrase last
quoted had over and over again been used
BY us in discussing the parts involved In
the case.
The opinion u not candid one. II
gives = strained construction 10 tho Ian
gusge OF the courts in other cases assumed
to be similar 70, but which were entirely
different from, the case Of WISE Us. BIcoER
and DFnR, in order to justify this court In
taking Jurisdiction In this last-named case.
Nobody ever denied the right Of the court
to decide whether laws are - appears from
their face constitutional or unconstitu-
ticnal. Therefore all that the Court Of
Appeals says 40 10 tbst right was OF the
question, and calculated TO mislesd the
public. All that the Court OF Appeals had
a right TO do Is set forth in the following
ext>nct from its opinion:
"Tbe mandamus will lie TO compel tho
performance Of duties purely ministerial IN
their nature. and 80 clear and specific that
no element OF discretion Is left in their
performance. The application OF the rule
IL universal. and Its illustrations are as
multiform rs are applications for the aid OF
the extraordinary remedy. 1t Is obvious
that II relates only to the enforcement OF
Duties incumbent by law upon the person
or body against whom the coercive power
Of the court Is invoked. 1t must in all cases
clearly appear that the officer against whom
the jurisdiction by mandGmws Is invoked
IL actually In default OF performance OF
some act which the law specially enj0ins as
a duty resting upon her officers, and
when substantial doubt exists as to the
duty whose performance 1t Is sought to Co
cree, or - to the right or power OF the off,
Ger 10 perform the duty, the relief will be
attached with the granting OF the writ"
I'VE cannot correct all that by guesses.]
Every Judge Of the Court OF Appeals
must have seen tbs moment Mr.. WIsR's ps-
ution ior . mdn1omss was presented 10
him that that petition asked the oourt 70
compel NJ. BIosBs 10 perform m sct which
was not duty "purely ministerial In ias
nature, and 70 clear and specific that ne
element Of discretion was LEFT In " par
Torrance" Every fudge Of that court
must have sssn that Mr.. BLOOM Wa not "ae-
tnally In default Of performance u any
such act - that language describes. What
the court was asked - compel Mr.. Bleoss
TO do was not "a slsax and specific +" duty.
On the contrary, y Wa not his duty u oil,
70 the court Itself decided. The 49, which
BIo0ER to perform wss not . duty On
BY hv" upon him, but the very
reverse. II was an act which the law for.
lids him to pesfsFm. II IVES net ~ 80
which the law specifically snjoins - q
Duty" but On act which the court says be
bas no right 70 perform. Nay, tho court
tsclf says u has no right 70 authorize him
o perform II
Now, all These things being true accord.
ne to the opinion Of all the judges OF the
upreme Court Of Appeals, the court ought
o have refused TO take jurisdiction in the
sse. An inspection Of the petition itself
'ught to have satisfied the judges that the
'ase was not such q one o. 10 described in
be extract given above from their opin-
lon, and therefore that "msndamus would |
hot he." In word, 1t seems TO us that
he Court OF Appeals, when 1t de-
dared that IL would not "trench on
The legislative prerogative" had already
u trencbed on" II. For this reason, we
protest against the act OF the court In as
,uming Jurisdiction In the ease at all. 1t
vas bad precedent. II the court had q |
night 10 "hsar and determine" the case, II |
had right to decide either way. II 1t had
| right to hear arguments to show that the
Journal Of the Senate Old not import abso-
ute verify, II had right 70 decide accord.
nely. II the Judges had right TO impsssh
hat Journal by entertaining petition ask.
ing Il to be iupsschsd, 1t had right TO 70
further.
We hope that nothing We have said will
,onvict us Of "spsahins evil q disui,a-
Hes" We did nos mean 70 Do this.
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