The Greenville times. [volume] (Greenville, Miss.) 1868-1917, 1889-05-11

TGlobe-Demoerat.l

Judge Valiant yesterday disposed
of the injunction proceeding commeae-
ed by City Marshal Neiser against
Marshal-elect Emile Thomas and the
Recorder of Voters, by sustaining de-
murrer to the petition on the ground
that injunction is not the proper rem-
edy in such cases. Mr.. Neiser sought
to enjoin the Recorder of Voters from
issuing an election certificate to
Thomas on the ground that the latter
was Ineligible to the position. being in
arrears to the city for taxes and licen-
ses at the time of his election. The
Judge reviews in an interesting man.
ner all the preliminary questions in-
volyed, and comes to the following
general conclusion:
So far as the writs of quo warranto
and mandamus may be rightfully en-
ployed as affecting ones right or title
to an office, the law courts have juris-
diction: for there are not only conf
mon law writs, but the powers that
may be exercised under them are ex-
pressly recognized in the Constitution
as embraced in the general powers of
the judicial department, but they do
not cover the power that the plaintiff
here invokes. This Court is now ask
ed to lay its hands on an election Off
Ger and restrain him from issuing
certificate of election to a candidate
who, presumably, has received the
highest number of votes at the cleo
tion. 1t is insisted that the Court has
the power to do this, not because there
is any provision in the Constitution or
statutes comforting such power, but
rather that the power is inherent in
the Court because of the absence of
any such provision comforting il on any
other tribunal.
The Court is asked to determine not
only that it is a power which ought to
belong to the Court, but also that the
absence of any express grant of the
power is to be attributed to the fact
that it was understood to be power
inherent in the Court in its nature,
rather than to- the fact the trainers Of
the Constitution did not intend to con-
fer it. This is only municipal office
now in dispute, but If the power exists
with reference to this office 1t exists
with reference to every elective office
in the State. If this power exists,
then any judge of circuit court, sit
ting as a chancellor, may arrest the
election returns in the hands of the
election officers as to members of the
General Assembly or the Governor of
the State, and thus practically exercise
dominion over both the legislative and
executive departments of the Govern
ment, Among all the authorities cited
by counsel IN this case ! have not been
referred to single decision OF court
of last resort which holds such doc
trine. Within my own limited read
ing remember but one case in which
such power was exercised, and that
was in Louisiana In 1875, when a
Judge, sitting as q chancellor, decided
as to which of certain claimants were
entitled to certificates of election to
the Legislature, the Legislature in that
State having the same right to judge
of the qualification and election of lis
members as IN Missouri. In that case
the effect of the judges decree was to
turn out the existing administration OF
one party and set up that of another
That case is, perhaps, now never quo
ted as an authority, and | refer to il
rather for illustration than for prece-
dent. The power which is claimed to
exist IN this case now is the very pow.
er which was assumed to exist in that
case then. 1t is a dangerous power
and one which, in my judgment, the
Ipeople of this State has never conferred
on any one man.
The decision of the Court, however
does not put Mr.. Thomas into posses
sion of the office in dispute, as Neiscr
by counsel Immediately took an appea
to the State Supreme Court, executing
a bond in the sum of $4,000, will
Adam Depenbach and Chas. Sebastian
as bondsmen. 1t is said, however
lthat Thomas counsel win endeavor t.
circumvent the delay that will ensu
should the case take its regular cours
, in the Supreme Court, and will appl
to that tribunal for writ Of manda
mus directing the Recorder of Voter
to issue a certificate of election t
Thomas.