Richmond planet. [volume] (Richmond, Va.) 1883-1938, 1908-11-14

United states Court.-A Side-step-
ping Decision.
Judge Nathan Con handed down
an opinion in the United States cir
cult court Of appeals this morning in
the case Of John +. BrickhOuse a
gainst c. 7. Brooks and William Jes-
sop, in which the validity OF the
present constitution OF Virginia was
attacked. on account Of the failure
OF the members Of the constitutional
convention 10 take an oath 20 uphold
the constitution Of the United States
and the constitution OF the State Of
Virginia before entering upon the
work OF the convention.
The opinion holds that the conten-
tion presented by Brickhouse was
without merit and that as the consti-
tuition had been declared valid by the
legislature OF Virginia and the Gov
ernor Of Virginia, IL was in fact the
constitution OF Virginia.
The suit brought by Brickhouse
has been under the consideration Of
Judge Con FOR more than a year and
before delivering the opinion he a.
pologized 10 Major Anderson. who
with r. G. Marshall and the late
Frank W Christian was attorney
for the defense, for the delay. but
said that he had been an for a great
er part of the time and unable 20 give
the matter the proper consideration.
The case has been in the State and
Federal courts for several years and
has been holly contested by attorneys
on both sides. John 5. Wise AID
Carter and Hayes were counsel for
the plaintin. The opinion rendered
this morning marks a signal legal
victory for Major Anderson and his
assocfa ties.
The suit arose out OF the refusal
OF JessOp and Brooks 20 allow Brick
house 70 vote in a congressional cleo
ton held in Norfolk county, Novem-
Der 4. 1902. on account of HIS not
being registered on the books for
the Huntersville precinct Of that coun
~. IL seems that Greenhouses name
on the registration books under the
old constitution had been obliterated
by having bottle OF ink spilled over
the page on which Il was written.
When the list OF registered voters
was made up under the new consti-
tuition, Brickhouse's name was not
carried on the new books. because the
ink completely copcealed It on the
old.
When Brickhouse came 70 vote
on the day Of election his name was
not on the list OF registered voters.
and Brooks and Jessop. who were
the judges OF the election in that
precinct. refused 20 allow him to vote
shortly after the refusal. Brickhouse
br aght suit through his attorneys
and claimed $4,000 damages. be-
cause OF the loss OF his vote.
Brickhouse took his case 10 the
United States Court OF the Eastern
district OF Virginia. claiming. under
section 1879 OF the revised statutes
OF the United States. that he had
been deprived OF "a right which was
guaranteed 10 him under the consti-
tuition OF the United States. and that
the parties who so deprived him OF
his right should be liable to DANA
ges. lie retained Wise. Carter AMI
Hayes as counsel. and one OF the
hercest legal battles in years was
begun.
Brickhouse claimed that his name
was upon the registration books for
that precinct which were ia force
prior 20 July 10. 1902, and that his
name should have been on the subse-
Quent books which we're gotten m
under a certain alleged" constltu-
ton which the defendants claim to
have taken effect July 10, 1902. but
which Brickhouse alleged were. to-
gether with the registration books.
null and void and which In no wise
affected his right 10 vote.
In support OF his contention that
the constitution under which the Sc
cond set OF registration books were
gotten up. was null and void Brick
house declared that when the consti-
tutional convention convened 10 form
a new constitution for the State OF
virginia the members OF the con-
venuon failed TO take the oath to
support the constitution OF the u
nited States and the constitution Of
Virginia and therefore, without tax
ing the oath, could not qualify AZ
ofiicers OF the State. thereby losing
all right to form a new constitution
or 70 amend the old.
The defendants on the other hand
claimed that IL was not necessary for
the members OF the constitutional
convention to take the oath mention
ed by the plaintiff and that having
been duly elected by the voters of
the State 10 form the new constitu-
ton they had the right TO do so.
The defendants claimed further
that as the legislature of Virginia.
the governor OF Virginia and all the
judicial, legislative and executive Of
hcers OF the State had declared the
new constitution the constitution Of
the State OF Virginia and had taken
an oath TO uphold the constitution Of
the United States and the new con-
stitution OF the State OF Virginia. this
new constitution was the constitution
OF the State OF Virginia and no other
was in force after July 10, 1902.
Judge Con, in rendering his opin-
Ion stated: Whether or not this
constitution OF Virginia is consistent
with the requirements OF the Federal
constitution. relating TO a republican
form OF government. is a question to
be determined by the legislative and
executive departments OF the govern
ment OF the United States. In re-
gard TO such matters the courts will
not take the initiative. but will await
the action OF the departments men
TONED. and when they have acted
Will be bound by tho conclusions they
have reached. II such action has