The Richmond Mayoralty.

April 8, 1870


Chief Justice Chase begins hearing the case of Ellyson v. Chahoon.


Hon. James Neeson and Judge John A. Meredith, counsel for Mayor Ellyson, members of the Richmond Council, and others, and Hon. Henry A. Wise and Ex-Governor Wells, counsel for Mr. Chahoon, arrived here-the former last night and the latter this morning-to argue the motion of Mr. Ellyson and others before Chief Justice Chase to dissolve the injunction awarded by Judge Underwood. Chief Justice Chase signified his readiness to hear the motion at the adjourning hour (3 o'clock) of the Supreme Court, and at that hour the parties assembled in the Supreme Court-room. Chief Justice Chase inquired of Governor Wells if he had any suggestion to make in reference to the hearing. Governor Wells said he had inquired in Richmond of the clerk, but found no motion filed; but he had received notice on the 5th instant. Chief Justice Chase inquired: What is the case? Governor Wells stated the nature of the motion, and proceeded to give his version of the history of the case, adding that notwithstanding the injunction, Ellyson continued to perform the official duties of Mayor. Chahoon applied for a writ of assistance, and the marshal was ejected by force. They petitioned for an attachment. Acts of resistance were continued, and the motion was fixed for hearing next Saturday. He claimed that Ellyson must purge himself of contempt before he could have a standing in court on the merits of the case. He claimed, further, that the motion to dissolve injunction cannot be heard outside of the district in which the court had jurisdiction. He had no disposition to delay proceedings. Richmond was blessed or cursed, as the case may he, with two mayors and two sets of police. All is peaceable, and quiet reigns. Mr. Meredith said he thought there could be no just complaint of want of notice. A copy had been furnished containing full statements of the grounds upon which the motion could be submitted today. There had been no contempt except in a purely technical sense. Ellyson and others hud been surprised by the award of injunction. They had applied for permission to appeal, and Judge Underwood had heard arguments upon all the questions that could be conceived of in the case, and yet would not permit an appeal to be taken. They then stated that they would decide to obey the order of the court not disrespectfully nor contumaciously, but in order that an arrest might take place, and thus enable them to sue out a writ of habeas corpus. This was decided upon. This refusal to obey was by but one of thirty-one defendants, and that one is the only party, even technically, in contempt. The motion being also on behalf of these thirty-one there is no reason why they should be postponed in this motion to dissolve. Chief Justice Chase asked: Would you be satisfied with an order dissolving as to the thirty names? Judge Meredith said he would not, and held that the judgment of Underwood is a nullity, and therefore there could be no contempt. If the court decides that Mr. Ellyson is in contempt, then the motion could proceed as to the remaining thirty. It was only last night that they had received notice that action would be heard next Saturday at Alexandria, before Judge Underwood, for an attachment for Mr. Ellyson. The motion for dissolution of injunction was first in order. The gentlemen on the other side assume that we are in contempt. We deny it, and maintain that if at all in contempt we are merely technically so. Chief Justice Chase inquired if there were any affidavits. Governor Wells replied there were several. The Chief Justice inquired: Suppose the opinion of the court should be that there is no jurisdiction in the district judge, could there then be a contempt? Governor Wells answered: Yes; if a judgment be entered, it is in force until reversed; and on this we have authorities. Chief Justice: What court was this? Wells: It was the Circuit Court, continued over from November by the district judge sitting in Circuit Court. Mr. Neeson: We controvert that view of it. Chief Justice: You had better argue the question whether the motion be heard whilst the party is in contempt, and whether there is any contempt, as the case stated. Governor Wells then proceeded to read the affidavits and other papers setting forth occurrences, proceedings, trial, application for attachment, distinct acts of alleged contempt, etc., by Ellyson. The others had not been guilty of overt acts of contempt. He claimed that the most serious act of contempt was in the second resistance, ejecting officers, &c. The Chief Justice here interrupted him to say that it was a frequent custom among his brethren of the bench to hear motions out of their districts, and if objections is made to that practice in this case, he would like to hear argument on that point. Governor Wells said he desired it noted that they did object. Judge Underwood advised this course, but we object. Chief Justice: I will note it, and consider it. Mr. Wise said he did not and could not know how the motion would be lodged before the court. It comes up on an interlocutory decree, and without notice. After notice that the injunction would not be obeyed, and after insisting upon arrest, he was as prepared for such a bold demand that this motion be heard. It is, in brief, asking you to aid in casting contempt upon your associate judge. My first objection is to giving countenance to contempt of court. Second. The effect is to evade the necessity of a writ of error or appeal. Third. It evades the onus to make a motion before the judge rendering the interlocutory order. Fourth. It proposes that a judge, in vacation, with chambers out of his circuit, take appellate jurisdiction, which can only be decided by the Supreme Court. There is no attempt to obtain a writ of habeas corpus. They have travelled 150 miles to ask one judge to insult another. Fifth. It is in fraud upon the appellate remedies. Sixth. The party is under notice of contempt, and cited to appear next Saturday to answer why he shall not be imprisoned. Will your Honor snatch him from the penalty? If there is to be any relief, it is by the opinion of the court that adjudged the injunction. An interlocutory decree is conclusive until reversed by a competent appellate court. Seventh. If the court entertains this motion, it is to interfere with the Circuit Court in its right to punish for contempt. It is not a question whether the judgment is correct, but whether an unrevoked judgment shall be treated with contempt. It belongs exclusively to the court offended to judge of the contempt against it, and what constitutes that contempt, and no other court can or ought to adjudicate upon another competent jurisdiction. A proceeding for contempt is a distinct act, and is not revisable even by a superior court. Mr. Neeson replied: He said this case grows out of an unfortunate controversy, Chahoon alleging that the act of the Legislature is repugnant to the Constitution, he impeached that action of the framers of the law, and prayed for an injunction. The bill was presented in vacation. Judge Underwood endorsed it at Alexandria, and ordered a hearing in four days thereafter, and that day arrived before the return day of process. The case was not matured at rules. We appeared, and it happened that the Judge was there, but not holding court for our case. We set forth that we were in office by act of the legislative and executive appointments. We rejected every possible proposition suggested by counsel or Judge. Nevertheless, the Judge overruled all the points made by us. Mr. Neeson then recited in detail what followed, and argued that they had not been contumacious, and there being no aggravation, it was purely a technical contempt. The judgment was a palpable oppression. Chief Justice Chase interposed here, saying it was not at this time proper to argue this branch of the case. The points now to be discussed are: Can the judge hear a motion out of his district, and is this a contempt? Mr. Neeson said he had considered it conceded that there was jurisdiction. There is no statutory restricting or limiting on the subject. The power is inherent in the presiding judge to hear, wherever he may be, and the injunction is altogether a matter of discretion with the court. A discussion upon dissolution of injunction is addressed to the discretion of the judge. A party may be denied this dissolution because he is in contempt in this case. The contempt was purely technical. An attempt was made in some mode to get the case appealed and removed to an appellate court, and, finally, the present course was adopted, which worked no injury to the other party. Is this not a case for an order of dissolution? Had the court, jurisdiction; and if not, how can this be even a mere technical contempt? He replied as to the charge that they had come a hundred and fifty miles to have this motion heard; that the Chief Justice was here, engaged laboriously, and his presence in Richmond uncertain. On the 5th instant notice was given that this motion would be heard. Ellyson was not then in contempt, and there was no process issued to put him in contempt. After this motion has been made, Chahoon's counsel procure affidavits and give notice that an attachment writ will be asked for next Saturday, so that the motion to dissolve was brought before any notice was given of proceedings for contempt. Judge Meredith argued that the Chief Justice is at chambers, and it was merely a matter of personal convenience the order that is to be made is sent down to the clerk at Richmond. If the Judge were in New York it would be the same, he could hear the arguments, consult his books, send his order down to his clerk, and until the order entered the journal it would not be operative. This objection is purely technical. The Judge can say when the chamber shall decide. If serious objection is made as to territorial limits or jurisdiction, it can all be arranged pleasantly, and the Judge and counsel can take a little ride down to Alexandria, only a few miles distant. The argument of the other side is so refined that it would be unprofitable to pursue it. As to getting rid of contempt before the hearing can be had on dissolution of injunction, it should be borne in mind that twenty-five out of the thirty-one defendants are members of the Council; and if they had not been restrained they could, if necessary, have set aside Mr. Ellyson and elected another in his stead. The main parties to be affected by this injunction are members of the Council, and they are not in contempt. Suppose Ellyson is in direct contempt, and suppose he is committed, would you refuse him habeas corpus? And if you find there was no jurisdiction, would you not discharge him? Are you not bound to consider the question of jurisdiction? It is the foundation upon which the whole superstructure stands, and here it is said jurisdiction cannot be considered. The real question is, Had that court jurisdiction? If you decide that there is contempt, we must purge ourselves. If the judgment is to be considered as a nullity, it be so treated, and all that flows from it must be wiped out. Every mode of obtaining an appeal or rehearing has been sought, but all has failed, and arrest was sought to lay the foundation for habeas corpus. As to the fraud upon other remodies, why, we are hung up and not allowed any of the other remedies. A man is not to obey a decree in which the court has no jurisdiction. Chief Justice inquired: Can the presiding judge dissolve an injunction ordered by the district judge? Mr. Meredith: Judge Underwood can, and you have concurrent jurisdiction. At least your Honor is higher in position; and we have appealed to you because we know what Judge Underwood will do. Mr. Wise said, had he been judge he would have committed Ellyson and his counsel under the circumstances-would have put them in biting chains. The contempt, though not meant, had been a venomous sting, and that sting has been death. The Chief Justice asked, with some impatience, Are these not questions upon the merits, if we ever get to them? Mr. Wise: Yes, sir; there is something stronger in it. There is the law of decorum, of delicacy, of propriety; which is higher than any law of Virginia-the necessity to sustain the dignity of the court. He concluded by saying he had been engaged twelve days trying the Chahoon-Ellyson case in Richmond, and he hoped the court would not allow that work to go for nothing. Let us remain where we are. Chief Justice Chase said he would communicate to counsel to-morrow the hour when and where he would decide the points raised.
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Charles Simmonds




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