Year: 1870

party in any stage Of the proceedings; in


deed, the complaint may be made and the
election set aside when there has not been


q candidate except the one whose election


is contested" These remarks were not
obtter, as maintained by the counsel for the
petitioner here. They contained the very
gist of the ground on which the court put


its decision that casts could not be given
to either party in such a proceeding.
Upon familiar principles, the Legislature


of 1870 must be presumed to have known


Of this decision, and to have intended to re-


enact the 9th and 10th sections Of the act OF


1852 In the sense thus put upon them bv this


court, unless contrary intention is plainly


indicated. The only Difference between the


9th and 10th sections of the act Of 1852 and


the Goth section Of the act of 1860 being
the addition at the end of the latter Of the
Icluuse quole1 above, the only question is,


whether an intention to make change in
the law is plainly indicated by the new
clause.


We think this clause has no such effect.


1t does not, in terms, profess to define juris-
diction or to limit the scope of other parts


Of the section as construed by this court.
Those parts Of the section which define the


causes of complaint and the duty and power


of the court remain as before. This clause
prescribes single thing to be done in those


cases where there is decision in favor of


one of several competitors, but says nothing


about the cases where there was but one


person voted for. The purpose was to
give to the successful party certificate.


But there could be no difficulty with


out this clause in furnishing to the sue


cessful competitor copy of the order OF


the court as evidence of his right. This, or


something equivalent, must have been done


under the acts Of 1852 and 1858. SO that this
| clause was not at all essential to the rights
Of the party. Besides, no reason appears
why the Legislature should have nOmina-
ted the jurisdiction in the mode contended


for. And it is obvious that if the law


should be thus construed it would be


wholly inadequate to meet many cases of


90 undue election" or false return.


| 1t was further contended that as the Pc
titioners have qualified and given into pos


session Of their respective Offices they can


only be deprived of them by u Judgment Of


custer upon quo ,cGrranto.
| 1t is true that no express authority Is
given to the court to annul a qualification
| to office and to ouSt the incumbent. And
so no express authority is given to annul
certificate of election where there has been
| no qualification. But the judgment Of the
court that the election under which an in
cumbent holds was invalid, and which
judgment is made by the statute final and
| conclusive against him, is necessarily fatal
| to his title derived from that election. This
| being so, why turn the case over to another
proceeding, which will cause expense and
consume time, and in which nothing can
| be litigated?


| 1t was contcnded by the counsel for Judge
| Guigon that this statutory proceeding in
case of contested elections gives to the
court as ample authority as might be eX-


ercised on the principles of the common
law upon quo tcarra1uo or mGnddnlus, and
| that it is exclusive Of those remedies. He
cited for the latter proposition the case Of


Acknowledgement Garriguez (2s Pennsyl.
| St., Rep. 81, decided upon statute OF Penn
| sylVania, the material parts of which are
| in the very same words rs our statute. We
are not called upon to say what is the
full extent Of the power OF the court
| in eases Of contested election, nor whether
the statutory remedy is exclusive Of the
remedy by quo 1rdlTantO or n2GndQnUS.
| But this we may property say, that the
court may exercise I'LL such power consist
| emily with the rules and principles Of law


as may be necessary TO render its jursdc-
ton citnctual, and that there is no necessity
to resort to any other proceeding to ouSt
an incumbent whose title has been adiudged
bad.


1t was strenuollslv insisted that the
power TO vacatc an election sa dangerous
power, and that the legislation ought not
to lie held TO intend rho hcStowal Of such
power unless the intention is Enthusiastically
expressed. Such power may be undoubt-
cdly abused, and so, too, may the power to
decide between rival candidates. There may
be great temptation to abuse this latter
power in times of high party excitement.
There can be no danger, on the other hand,
in renting the power Of filling an office
to the people to whom it ultimately be-
longs. In Il doubtful case it ought to be
done rather than have the Office filed by the
appointment OF any court. Such Il course
is more consistent with sound policy, more
Just to the voters, more likely to prevent
abuse, and more agreeable to the principles
OF our Government.


Therefore the motion to award Il writ is
denied, and the following order be entered:
son former day of this term, Henry
Il. Ellyson, Mayor o4 the city Of Richmond,
and sundry other officers Of said city, pre-
scnted their petition, duly verified by atii-
dayit, praying this court to award writ of


prohibition to inhibit Alexander Guigon,
Judge of the Hastings Court OF the said
city of Richmond, from enforcing certain
writs of election, heretofore issued by him,
directing the Sergeant Of the said city to
cause All election to be held on the Sth day
of Nov, 1870, for the choice of certain olfi-
GERS of said city mentioned in said writS re-
spcctively, and to inhibit Thos. U. Dudley,
Sergeant Of said city, from obeying and
executing said writs, or any of them, and
therefore moved the court to award rule
against the said A. b. Guigon and Thomas
l.. Dudley to show cause why the said writ
of prohibition should not be issued. The
said Alexander B. Guigon thereupon APP
peared, by counsel, and opposed the grant


ING of said motion, and the said motion was
argued by counsel.


"And now the court, having maturely
considered the said petition and the eXhib-
its fled Herewith, and the arguments Of
counsel, is Of opinion that the petitioners,
upon the case stated in this petition, are
not entitled to a writ Of prohibition; and
the motion for Il rule to show cause why
such writ should not be issued is therefore
oYerruled."


How SAD The State Journal, a Radical
paper published here, has often remarked
that George Chahoon was prosecuted by
the grand jury of the Hastings Court for
political reasons. George W. Smith, the |
Journals candidate for Mayor, was fore
man Of that grand jury.


A STATE BOARD OF MEDICAL EXAMINERS. |
The Medical Society of Virginia, ut its meet |
ing held in this city during the past week, de- !
termined to endaVor to prevail upon the Gem
eral Assembly to institute board Of exam |
iners for persons proposing to engage in |