Year: 1870

could not be used ugainst him nor could
manddmus be used, for that is only direct
ed to incumbents. 1t could be used to re-
store attorneys to their places, for they
were bound to serve any man. and the
speaker would call the attention Of those
who found fault with his appearing in this
case to that fact-that an attorney was
bound to serve any man. The complain
ants were referred to the State courts for
redress. Isn't it well-known feet that
when this occurrence took place that the
majority of the judges were candidates be-
fore the Legislature for election. Would
it have been fair to have put these men in
the position of having to offend the very
Legislature from which they hoped for cleo
ton That thing ought to be considered in
this matter. None of the writs referred to
by the defence were as applicable to the
case of the complainant as many other
older writs of Eng glish law which had long
fallen into disuse.


Congress is the receptacle Of legislative
power, and the courts the receptacle of the
judiciary power, and that power repre-
sents the sovereignty of the country as
much in equity as it does in law. II this





mon law, had it not an equal right to issue
one in equity to accomplish the same OBJ
ject. The defence ridiculed a writ in
chancery, but they did so because of their
own error. They had committed the error
of contending that the matter was simply
struggle for the mayoralty, and the
further error of claiming that Ellyson was
in and did not appear in this court as the
claimant. They are wrong, the struggle
here is not for the mayoralty, but that the
United States shall maintain one of its off,
GERS in Office to perform the duties assigned
him in the induction of the State, and re-
main there until duly relieved by the pro-
cess of legal election.


He then went On to prove that Mr.. Cha
hoon is the de .factO Mayor had "color OF
Office by provisional appointment; was
recognized by Mr.. Ellyson as such when be
applied for the books and papers; he has
been exercising the duties of Mayor uHdis-
turbed until his Office was assaulted, and
is still exercising them; and he was recog-
nized by the judges as Mayor. He is the
incumbent, and if this case were decided
against him he is still in; and when be
appeals he still remains in office till that
appeal is decided. He cannot be ousted by
the State courts. 1t is frank to say that he
can appeal and delay till after May, and
that he would do it. He has not been re-
moved from Office by quo ararranto, the
only way it could be done, and there has
been no judgment of court evcting him.
Governor Wise went on here to show that
there was no vacancy in the office; that If
there had been it could be filled only by
election Of the people. The speaker incl
dentally went into the case of the appoint
ment and election of Lieutenant Governor
Marye, declaring that he should have been
elected by the people, and does not
now legally preside over the Senate,
seeing that the Constitution contem-
plated that the Legislature should have
provided for filling the vacancy by popular
election, and not have assumed the power
to itself of filing it. The Legislature, un-
der the Constitution; has no right to pre-
scribe any other mode of filling m Office
when the mode is already indicated in that
Instrument. In the cases Of cities and
towns the Constitution has plainly pre-
scribcd that the officers ARE to be elected by
the people. The Constitution also provides
that the Legislature shall pass general laws
for an election, and no special law, unless
the object cannot be accomplished under
the general law. This enabling act was {
special act, without any necessity for it. L
was q pap law, patronage law, ven
geance law.


At this point the court adjourned until II
o'clock this morning.