The weekly Floridian. [volume] (Tallahassee, Fla.) 1867-19??, 1891-10-31

AND A. W. COCKRELL THE REsPON-
DENT-A BRIEF SUMMARY OF THE MAIN
POINTS ARGUED.
Thursday was the day and 10 O'Clock
the hour set by the Supreme court for an
answer to be made to the alternative
writ commanding Secretary of State John
L. Crawford to seal and countersien the
commission Of Hon. r. 81. M. Davidson
to be United States senator from Florida
or to show cause for not having done so.
The case had aroused much interest
and there was a considerably larger
crowd than usual in the court room, sew
eral prominent attorneys from different
parts of the state being among the num-
Der.
The case was docketed as State ex rel.
Francis P. Fleming VS.. John L. Crawford
secretary Of state, the state being rep
resented by Hon. Fred T. Myers and the
respondent by Col. A. w. Cockrell.
Col. Cockrell, attorney for the respon-
dent, filed his anwer, which sets forth in
substance that the court has no iurisdic-
ton under the writ; that neither the De-
TONER nor the state has such interest in
or relation to the specific act sought to
be enforced; that there was no law en-
joining upon the respondent the perform
ance OF the specific act therein sought to
be enforced; that it does not appear that
the performance by this respondent of
the specific act therein sought to be en-
forced is necessary to make effectual said
alleged appointment; that The allegations
set up in the alternative writ are not suffi-
Gent to show that the petitioner or rela-
tor has the right to enforce the aforesaid
specific act.
The answer went on to say that the
OILY evidence the respondent had that the
governor had enquired into whether va
cancy really existed or not, was his ad-
dress to the people giving his reasons FOR
not certifying to the alleged election of
Wilkinson Call, which address the respond
emf filed copy OF as an exhibit.
DE avelred that no vacancy existed, and
filed transcript OF the proceedings of the
joint assembly on the day upon which i,
was alleged that Wilkinson Call had been
elected as ground for such averment He
also filed copies Of the recent correspond
ence between the governor and the attor-
ney- general to back up tue assertion that
the state was not an interested party.
Fred L. Myers, attorney tor relator.
Treating the first six paragraphs of the re-
spOndents demurrer 10 the alternative writ
joined in the demurrer. To the remainder
ofthe answer he ::demurred and said tina,
there was not sufficient facts shown in law
why the peremptory writ should not
issue.
Col. Crockrell, attorney for the respon-
dent, made an elaborate argument of his
side of the case. He contended that the
governor was but the agent of the federal
government and that he had absolute
pow or and discretion as such agent to make
such Apo tment but that aff1xing of the seal
OF the state and countersigning by the score.
tary OF state werer not necessary tn give
forceiand effect to such appointment; that
there was no law and could be none CON-
pelling the secretary Of state to do go. BE-
cause the governor was acting under DOW
era given him by the federal constitution
and not by any state constitutional pro-
vision or statutory mandate.
He held that the court had no right to
act in the matter, because they had no
state authority to do so; that if they en-
tertained the petition they must either
decide that there had been no election |
which they had no right tn do, or else
must declare that it was the duty of the |
secretary of state to seal and counte, sign |
every appointment made by the chief ex-
ecutve, whether there was any law for
making such appointment or not.
He dwelt at length upon the alteration
that Wilkinson Call had been legally
elected, and that therefore there had
been no vacancy to fill, reading from the
made in favor of the passage of
the act of Congress of 1866 rs evidence
hat The alleged election of Wilkinson
Call had been in the manner, etc. pre.
scribed by that act, and citing the con-
test case of Lucas and Faulkner from
West Virginia as case in point. He
I'm lily closed by moving that the petition
for the writ be quashed.
The court then took a recess until 2 |
o'clock.
Mr.. MYERS ARGUMENT.
Upon the reassembling of the court
Hon. Fred T. Myers, attorney for the re-
atOr, began his argument by saving that |
were this the committee of privileges and
elections of the United States senate. the
counsel for the respondent had, in his
opinion, presented as forcible statement /
Of his side of the question as it were pos
sible to make, and, were it such commit |
tee, it woul have been appropriate, but |
such argument did not belong properly
before this court; that the question Of |
the legality of the alleged election had no |
place here; that the right of deciding |
that question rested solely and entirely
with the senate itself, and he called at
tention to the fact that upon two several
occasions, in two several cases, citing
them, this court itself had adjudicated
thai question
He held that the court could not BASS
upon the legality Of such alleged election:
that such question was mol involved, as
laid d'.wn In the text books of man lnmus.
and be read nom high on mAndamus'
actions II and 81, 10 show hat ma ndamus
does not lie to admit to Office.