The Mayoralty Case.

April 30, 1870


Chief Justice Chase renders his final decision on the case. Ellyson is the rightful mayor of Richmond.


At 10 o'clock yesterday the Court of Appeals resumed the consideration of the habeas corpus cases of Dyer and Bell. Governor Wells, as the representative of Mr. Chahoon, was the first speaker. He prefaced his argument by the statement that the counsel for Mr. Chahoon supposed it conceded that a de facto officer holds such a title to that office as cannot be determined by a collateral proceeding. If the court decides that the prisoner committed by Mr. Chahoon was committed by an officer de facto he must be remitted to confinement, and then Mr. Ellyson's claim to the office would be a subject of separate inquiry. He would address himself particularly to the validity of Mr. Ellyson's claim, resting as he did solely on the enabling act. He held it to be a self-evident proposition that, any attempt on the part of legislative authority to fill an office created by the Constitution in any other way than that pointed out by the Constitution is null and void. The Constitution requires that the Mayor shall be chosen by the people at a general election, and all officers the manner of whose election is not specially defined shall be elected by the electors of the city, or appointed by such of the officers thereof as the General Assembly may designate. The fifth section of the enabling bill is, therefore, unconstitutional, for it authorizes the Governor to appoint trustees and councilmen. The seventh section is unconstitutional because it authorizes the councilmen and trustees to appoint officers who should be elected by the people. The constitutionality of these provisions of the law can only be sustained by one of two hypo-theses-either that the offices were vacant or, failing in that, that the Legislature by its own act had the power to create vacancies. Was there a vacancy? Mr. Kent and his associates of the Council, and Mr. Chahoon as Mayor, were in the active discharge of their duties on the 16th of March, and prior to that time no question had been raised as to their being the incumbents of the offices. The enabling act itself acknowledges that they were in office by authorizing them to continue in office. There was certainly, then, no vacancy in fact. Now, was there a vacancy in law? The consequences of the adoption of the new Constitution, or the language of that instrument, are the only sources from which a vacancy could be inferred. Section 25 of Article VI. of the Constitution expressly prescribes that all officers under the old regime shall hold over; which must be conclusive unless, by a constrained construction, it is made only to apply to officers elected or appointed under the new Constitution. He cited the ease of Governor Peirpont to show that this principle had been accepted by this very court, it being held that although his term expired January 1, 1868, he was legally exercising the duties of the office of Governor of Virginia several months after, his successor not having been elected. General Wells then expressed the opinion that when Virginia was readmitted to the Union she did not come in as the equal of the original thirteen States. She was admitted upon the fundamental condition that she has done the thing required in good faith and that she shall never amend her Constitution in certain particulars. A fair construction of the enabling act itself continued all officers in office who qualified before a certain time. Neither under the Constitution nor the laws was there a legal vacancy. There was none in law or in fact. This very enabling act provides that officers shall continue in office until their successors are elected and qualified. I have no objection to that portion of the act. In the Constitution of Kansas there was a provision in relation to holding over which was in the same language as that in ours. The Supreme Court of that State held that all officers of the territorial government became state officers. Mr. Neeson: Didn't the Constitution provide that these officers should hold over? Mr. Wells: No, sir-except as I have said. The construction contended for by the opposing counsel would produce anarchy and confusion as a necessary result. I have cited cases to prove that unless specially inhibited the officers hold over. Mr. Neeson: What's the authority for that? Mr. Wells: I will give the cases. There are half a dozen of them. I have prepared a brief of my argument. Now, as there was no vacancy, I will inquire if the Legislature could make a vacancy? The 22d section of Article V. of the Constitution reads: "The manner of conducting and making returns of elections, of determining contested elections, and of tilling vacancies in office, in eases not specially provided for by this Constitution, shall be prescribed by law." Nothing up to this point-not a word as to creating vacancies. That section concludes: "And the General Assembly may declare the cases in which any office shall be deemed vacant where no provision is made for the purpose in this Constitution." They may declare the cases, the circumstances, the facts, which constitute a vacancy. Have they done that? No; but they have undertaken to create a vacancy. How can they fill a vacancy in the Council? The Constitution says it must be done by some city authority. There are but two cases in the Constitution in which vacancies are provided for. If the argument of the gentlemen on the other side is correct, the Legislature may vacate every office in the State. Your Honors hold your seats by sufferance. The Governor holds office by sufferance. Here are twenty-four gentlemen calling themselves councilmen and electing a Mayor. The moment this Mayor qualifies he may remove every councilman. It is perfectly monstrous to say that the officer appointed has the power to remove the appointing power. Can it be that the Council may elect a Mayor to-day and the Mayor may remove the Council to-morrow? The Mayor ranks the Council because he is elected by the people. If the Legislature has the power to "declare vacancies," and if "to declare" means "to create" a vacancy, then we shall have anarchy and confusion. Your Honors can only be removed by impeachment. But, suppose the Legislature cannot get a twothirds vote: Can they vacate your offices to-day, and to-morrow create a new office, and put in new men? What means the constitutional provision that there shall be three departments of the Government- legislative, executive, and judicial? It is monstrous to contend that the power "to declare" is the power "to create" vacancies. Suppose Chahoon dies. There is a vacancy by the act of God. If he removes his residence out of the city the Legislature may declare his office vacant. The Legislature has the power to require of sheriffs new bonds, and to declare their offices vacant if they refuse to give them. That's what the twenty-second section means; but not power to create a vacancy in an office which the Constitution says shall be filled by election by the people. Judge Joynes: Let me ask if I understand you as to this twenty-second section. (Judge Joynes here read it.) Now, suppose there is an admitted vacancy in the office of a clerk of a court, which is an elective office except in this court. Do I understand you to say that the Legislature cannot authorize the office to be filled temporarily by appointment? Mr. Wells: No, sir. They can do that. Judge Joynes: Yet you say that the office of Mayor could not be filled temporarily by the Legislature? Mr. Wells: If there were a vacancy the Legislature might authorize the duties to be performed temporarily by another person-as by the Recorder. I don't understand that they can authorize a Mayor to be elected in any other way than that provided in the Constitution. Mr. Wells referred to a case in New York where the Legislature was unwilling to trust the court, and undertook to create a new office and transfer, the duties to it. It was held that the Legislature exceeded its powers in attempting to do indirectly what it had not power to do directly. Mr. Wells continued at some length upon this point. Mr. Daniel next rose to address the court. Judge Moncure: Have you a brief, Mr. Daniel? Mr. Daniel: No, sir. But I'll be brief. If your Honor desires it, however, we will prepare a brief. Mr. Daniel said he would first refer to the form in which this case is presented before the court. It has been said that this court has no right to try the title to office in this manner-that this is no writ of quo warranto, upon which judgment of ouster can be pronounced. He conceded this. Yet it is a case in which the court may pass upon the validity of the title. The prisoner will be remanded or discharged. If the court find that Chahoon is Mayor, the commitment is valid. If not, not. So as to Ellyson. Incidentally the title to office will be tried. And it was more appropriate in the agitated and disturbed condition of the public mind to avoid double litigation-a case in the court below to be brought here upon appeal. It was dictated by a desire for peace. And although you may not oust the intruder, your decision will give peace, order, and harmony to the community. The case agreed applies to both parties. Apply the agreed facts to Chahoon's case or Ellvson's, and you can decide upon one as well as both, and you will in effect decide who is Mayor. I will take up these cases in order. I shall not imitate my predecessor in abandoning his client-in passing from Chahoon's side to devote his whole attention to Ellyson. Perhaps it is here as it is in military affairs-posts are sometimes abandoned because they cannot be held. Mr. Wells: I argued the question of the unconstitutionality of the enabling act. Mr. Daniel: Exactly. Which involves Ellyson's and not Chahoon's case. Now, sir, what are the facts of the case? Mr. Chahoon was appointed, under an act of Congress, by military authority. I am not going to dispute the validity of his acts in the office as long as the State was under military rule. I admit that for the first time in the history of this country, into a community in apathetic repose, engaged in restoring their shattered fortunes, there came a set of people who took up arms just after the war was over and engaged in social war. Under the act of March 2d, 1868, General Schofield appointed Chahoon-not Mayor, for that was not his policy,-but to perform the duties of the Mayor's office. If your Honors will examine this act of Congress you will see that the General commanding was authorized to detail officers or to appoint persons not officers to perform the duties of civil officers. It was thus that Chahoon was appointed. Examine the act of July 1867. The language is as follows: "Upon such suspension or removal such commander...shall have power to provide from time to time for the performance of the duties of such the detail of some competent officer or soldier of the army, or by the appointment of some other person to perform the same," &c. There is the source of his appointment. Here is Chahoon's life or he has no life. He is not a constitutional officer at all, but was appointed merely to perform the duties of the office. That s all. I concede that he had power to perform these duties at any time before the admission of the State to representation in Congress. But I maintain from absolute conviction that when the State resumed control of her own affairs, and the Legislature, clothed with inherent power, passed this law authorizing the Governor to appoint a Council, who should elect a Mayor, then this superstructure -this hideous superstructure of military government-was touched by the spear of Ithuriel and shivered into fragments, and existed no longer. According to the 5th section of the act of March, 1867, when the State should have taken all the necessary steps and established a government republican in form, as the mocking language of the act is-that is a republican government forced upon her by the bayonet-then the act of Congress became inoperative. From that time there was no officer appointed by the military who did not go out of office. His robes were stripped from him. I do not know whether we are in the Union now or not; but whether we are or not, we are in the exact condition in which the act of Congress was by its own terms to cease to operate. Is Chahoon a military officer? Then he exists by the breath of military authority. The military system of which he is part has fallen to the ground, and he fell with it. If he still exists by military authority, if General Canby has continued him in office, then he lives, moves, and has his being, by the fiat of military authority, and he is not accountable to any civil authority. But the General commanding rather retreated when called upon to enforce this authority. Why does he come here? He is not responsible to any court. He is the creature of military authority, military law, and not amenable to you. He overrides the Constitution. In rerum naturae there is no other check upon his existence. On the 26th January Congress passed the act admitting Virginia to representation in that body. The next day General Canby resigned all prisoners, all authority to the civil power of the State, but accompanied the surrender by one of the most singular orders ever issued-namely, that the terms of office of his appointees would expire only when their successors were elected or appointed under the new Constitution. Now, sir, isn't this a solecism? -an absurdity in terms? Why, sir, to show how the artificers of this system regarded this matter I will read a portion of Mr. Bingham's speech made in Congress. When the Reconstruction Committee reported their bill, which was superseded by Mr. Bingham's joint resolution, an attempt was made to introduce General Canby's very order. Mr. Bingham said: "To complete and crown this folly, it is proposed to fill the offices of the State by act of Congress, thus doing away with the Legislature. When was such folly ever attempted to be enacted into the form of law since God made heaven and earth." etc. This is the clause of which Mr. Bingham spoke: "All persons shall continue to discharge the duties of their several offices until their successors are duly chosen and qualified." It was derided and voted down without division. If these military appointees now hold office by a constitutional tenure they are in for life, and the Legislature would have no power to touch a hair of their heads. But this doctrine was denounced and scouted from Congress by the framers of the act under which Chahoon claims to hold office. General Canby had no power to issue the order I have alluded to. But if he did on the 27th of January, he on the following day laid it down, abdicated, and issued an order stating, amongst other things, that "Whereas the State of Virginia is by law entitled to representation in the Congress of the United States, and her representatives have been admitted, having taken the oaths provided by law," &c., now, therefore, "all authority conferred upon the commander of the district by act of Congress is hereby remitted to the appropriate civil authorities of the State." &c. If he had had the power, here he laid it down. I say, therefore, that Chahoon's first proposition -that he is continued in office by military authority-fails. Perhaps it has been abandoned. Mr. Wise: What's the point. Mr. Daniel: Was Chahoon continued in office by military authority? Mr. Wise : Not abandoned. Mr. Daniel: I turn the point over to Mr. Bingham. He scouts it as a folly. Mr. Chahoon also claims to hold office by virtue of the 25th section of article 6, which provides: "Judges and all other officers elected or appointed shall continue to discharge the duties of their offices after their terms of service have expired until their successors have qualified." This is at least as old as the Constitution of 1850. It is prospective. It is intended to prevent an interregnum. But if this section continued anybody in office it didn't continue these military appointees. They had no existence in 1867. The government of the State was in the hands of officers elected under the Alexandria Constitution. They were abhorred by the powers of the Constitution, who were conspiring against the body-politic as it then existed. That convention never intended to keep them in office. This provision of the Constitution is prospective; provides for cases of resignation, removal, or death; and prevents interregnums. It is in tolidem verbis in the Constitution of 1850, and in the Alexandria Constitution, and is copied literally into this Constitution. (I don't know what to call it.) In the next place, it is contended that Chahoon is continued in office by the enabling act. Why, sir, he is not included in its terms. The first four sections of that act refer to county officers. The latter sections give full and complete control as to city officers to the Governor, who appoints all councilmen, etc. Chahoon was practically disabled. He did not qualify "according to the Constitution and laws of Virginia." From the time of his appointment down to January 26th he was an officer of the United States. The enabling act only legalizes the acts of such officers as are "eligible to office under the existing Constitution and laws of Virginia." The Code of Virginia, page 100, citing Hening's Statutes at Large, shows that Chahoon was ineligible to office. And this on account of the incompatibility of holding these two offices together. In the case of a justice of the peace it was adjudged by the Court of Appeals that in accepting Federal office his tenure of office ended, and that his resignation did not restore his capacity to continue to hold the State office. So far from coming within the terms of the enabling act, Chahoon is just the person who cannot claim to hold under it. It denounces him. If there were no other, that would be sufficient ground for removing him. The new Constitution, as at first framed, disqualified all persons holding office and made no provision for filling the offices. It declared that every incumbent should be forever incapable of holding office. It called a roll, and left out all provision for continuing in office military appointees. They hadn't these in their eyes at all. They intended to meet here and declare who should hold office and who shouldn't: they purposed saving the offices for themselves. As to the personnel-the persons-they were to be driven out and not even allowed to vote. They could not continue military appointees, because these were beyond their reach. Chahoon can derive no aid or comfort here. But the idea is broached that there was some State or social necessity which continued Chahoon in office, and notwithstanding the Legislature has stepped in, Chahoon still holds de facto. I am not concerned as to the time between the admission of the State to representation in Congress and the passage of the enabling act. If the Legislature had power to provide tor the appointment of councilmen, who should elect a successor to Chahoon, what becomes of his de facto authority? He is nothing more than a usurper. He can't be de facto and de jure both; and he can't be a de facto Mayor if there is a de jure Mayor. When a man is in office by color of title, by reputation, or by irregular appointment, and his acts are acquiesced in by the sovereign authority, then his acts as to third persons are valid; he is de facto in office. But if he attempts to justify himself, he is a party to the proceedings, and the court has power to decide upon his pretensions. If a wrong is done, and persons attempt to shelter themselves under his authority, the court has the right to pass upon his title. Here is a man who calls himself de jure Mayor. When a person whom he has wronged lays hold upon the horns of the alter of justice is it to be endured that he shall come here and say "I am a de facto Mayor"? If he had merely taken an acknowledgment of a deed his title might pass unquestioned. But when he comes here as he does, he lays himself open to inspection and dissection, though the subject is too rotten for the knife. He has no de facto character. But suppose he had. Suppose that between the two periods-the admission of the State to representation and the appointment of Eilyson-he was de facto Mayor; all these several grounds now fail him. Concede that the de facto officer is the one claiming the office up to that time, how is it after the State has acted and appointed Ellyson? One is Mayor de facto. Is it Chahoon? He was disarmed and destroyed by the State, which never acquiesced in his claim. Therefore he cannot be de facto Mayor. But, conceding that he was a de facto officer, the most enterprising of our opponents will not contend that he survived if the Legislature had power to pass the enabling act. Had the Legislature that power? Was there a vacancy? I have attempted to show that there was. You must hold this, or else that the reconstruction acts are still in full force, are a Greek-fire, which, set ablaze, can never be extinguished. Does the authority of Congress still survive? They are monstrous consequences indeed if this pretender can survive the action of the Legislature, of the Governor, and of the Council which elected Ellyson. Mr. Daniel elaborated this point somewhat, but our space begins to fail. Mr. Daniel contended that the Legislature may declare vacancies. Here [in the Code] is a whole chapter of such. For fighting a duel-for selling his office-for holding a United States appointment-the Code vacated office. But it is said that this office must be filled as the Constitution prescribes. The offices under the new Constitution are to be evoked into life under a charter yet to be enacted. It is enough to advert to the difference between the powers of a State Legislature and of Congress. The latter derives all its powers from a written Constitution. It can exercise no powers not specially granted to it. The former has sovereign power, except where limited by the State or the Federal Constitution. Every body-politic is absolute, as contradistinguished from the organization of the body-politic. Salus populi suprema est lex. And if there was a vacancy, as we hold that there was, were we to sit down and wait and look at the State Constitution? But that Constitution does say that all legislative power is vested in the Legislature. It was an unnecessary declaration. The power is inherent. I suppose that "all legislative power" embraces all legislative power, and I hold that the Legislature can take care of all the interests of the State. If then, there was a vacancy, and the Legislature had power to fill it, the means of filling it was within the competency of the Legislature. It might have authorized it to be filled by the Governor, or by the Council, or in any other way. Look at these military judges. You are now re-hearing by authority of the Legislature the very cases in which they have pronounced judgment. Mr. Daniel continued at some length, quoting authorities, and clearing up difficulties on this point. He then recapitulated the points he had made, and closed. We cut short our report of his speech for want of room. Mr. Chandler next spoke. He said that whilst not complaining of the restriction as to time imposed by the court, few things were more embarrassing to counsel not accustomed to restrictions. He should make not a regular but a desultory argument. He was not vain enough to suppose that he could present any new arguments. If the office or Mayor was vacant, all offices were vacant. Chaos had come again. I deny the proposition that they were all vacant. I say there is in the great mass of the people the same right to protect themselves that Parliaments or Legislatures have. There are rules written down by God's own finger which entitle men to defend their lives. If a State has this power, each individual a fortiori has it. But suppose I am wrong. It makes no difference. This Constitution itself provides for contingencies in such a way that there is no such vacancy as the opposing counsel speak of. Mr. Chandler here read the whole of the schedule of the new Constitution. He continued: And yet if the proposition of the gentlemen are true, there was no court-we had a saturnalia of thieves, robbers, and murderers, as soon as Virginia was admitted to representation. From the 26th of January to the 5th of March there was in operation--"That good old rule and simple plan that they should take who have the power, and they should keep who can." He argued that it was unreasonable to maintain that the constitutional provision continuing the office did not also continue the officer, and quoted Webster's Dictionary and Shakspeare to show that the court is not the bench but the judges. The final clause of the schedule also authorized Chahoon to continue in office by providing that all crimes and misdemeanors and penal actions shall be tried, punished, and prosecuted, as though no change had taken place, until otherwise provided by law. This was certainly a warrant for the continuance of the Mayor's court. Judge Staples here suggested to Mr. Chandler that the schedule attached to the Constitutions of 1829 and 1851 provided not only for the continuance of the courts, but of the officers. Mr. Chandler said that the intent and effect of the schedule attached to the Constitution of 1868 was the same. A law continuing the court without the officers would have been a mere brutum fulmen. Judge Staples: What becomes of the officers who do not appertain to the courts? Mr. Chandler thought this question was hardly relevant, but would answer it if his Honor thought otherwise. Judge Staples explained that his question was suggested by the remark of one of the counsel that the Mayor's court did not come within the purview of the provision of the Constitution continuing the courts. Mr. Chandler replied that he thought it was one of the courts referred to. He was inclined to think it a court of record. Judge Joynes shook his head at this expression of opinion, and Mr. Neeson exclaimed "Oh no!" Mr. Chandler, resuming, addressed himself particularly to the argument of Judge Meredith, denying that Chahoon's holding a Federal office incapacitated him from holding a State office. The court then adjourned until 10 o'clock this morning. Mr. Neeson and Governor Wise will speak to-day.
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