748 



VIRGINIA. 



a hostile collision, until the courts could settle the 

 questions involved in the controversy. 



Meanwhile Chahoon had applied to Judge 

 Underwood, of the United States Circuit Court, 

 for an injunction against Ellyson, and on the 

 18th of March obtained an order to \show 

 cause, on the 23d, why an injunction should 

 not issue. Ellyson claimed, among other things, 

 in opposition to the motion, that the United 

 States Courts had no jurisdiction of the case; 

 that, if they had, there was a complete remedy 

 at law, and no injunction could issue, and that 

 his own election was legal. The argument, 

 which was elaborate on both sides, occupied 

 several days. Judge Underwood held that 

 those sections of the enabling act under which 

 Ellyson claimed to have been elected were un- 

 constitutional, and that Chahoon, as the de 

 facto if not the de jure mayor, could not be 

 removed by the proceedings instituted by 

 Ellyson. In closing his opinion, the judge 

 says : 



On the subject of the jurisdiction of the court. I 

 have only time now to say that the length and breadth, 

 the height and depthj of equity jurisdiction, as exer- 

 cised by the greatest judges in England, was so great 

 as to embrace almost all rights not clearly secured 

 by the courts of law. The student of English juris- 

 prudence will be filled with wonder at the power of 

 the English chancellors, and with admiration of the 

 wisdom and beneficence with which that power was 

 generally exercised. There was hardly a fraud they 

 did not expose, a wrong they did not redress, or a 

 right they did not secure. 



And when we reflect that these powers of the 

 English chancellors, in all those cases m which a law 

 of the United States is involved, have been conferred 

 upon the Circuit Court of the United States, there can 

 be no reasonable doubt that the court has authority 

 sufficient to reach the necessities of this case ; author- 

 ity sufficient to protect from wrong and outrage every 

 public officer appointed and acting under a law of the 

 United States, as long as he shall DC so acting and in 

 the faithful discharge of his duty. 



It is, therefore, ordered that the defendant Ellyson 

 shall no longer assume to perform the functions of 

 mayor of this city under color of a void and unconsti- 

 tutional act. That defendant Euker and his associates 

 of the fictitious council shall no longer play their 

 game of pretended authority, and that defendant Poe 

 and his confederates shall no longer impose upon 

 this community as lawful police. In the interest of 

 peace and of public order, the injunction, as prayed 

 for in the complainant's bill, is awarded. 



In the name and words of the President of the 

 United States " Let us ?iave peace." 



After the decision was rendered, the counsel 

 for Ellyson announced that, for the purpose of 

 getting the question before the Supreme Court 

 of the United States as speedily as possible, 

 they should advise their client to disobey the 

 injunction, and, when arrested, to apply to 

 Chief- Justice Chase for a writ of habeas corpus, 

 to try the right of the arrest. Subsequently, 

 a motion was made before the Chief Justice 

 and Justice Nelson to dissolve the injunction, 

 but, before the decision of this motion, an agree- 

 ment was made by the parties, by which the 

 question was brought before the Supreme Court 

 of Appeals of the State. On the llth of April 

 Mr. Chahoon addressed a note to Mr. Ellyson, 



deprecating the results that had followed from 

 their contest, in the non-payment of the police, 

 the school-teachers, laborers on the streets, 

 etc., and proposing that they should both cease 

 to exercise the duties of mayor, and leave the 

 recorder or senior alderman to act as though 

 there were a vacancy in the mayor's office. 

 This proposition Mr. Ellyson declined, but sub- 

 milted the following : 



Participating in your desire for a speedy settlement 

 of the matters in controversy, I propose the follow- 

 ing : That we bring before a full bench of the Supreme 

 Court of Appeals of Virginia (which meets to-mor- 

 row), by writs of habeas corpus sued out by a person 

 you have confined in jail and by a person I have con- 

 fined in jail, the question of the constitutionality of 

 the law o_f the State known as the "enabling act," 

 under which I hold office. Let us both waive all 

 technical questions, and ask the judgment of the 

 court on the main issue. If the court decides the 

 law to be unconstitutional I will at once withdraw 

 all claims to the office of mayor, and cease to exercise 

 its duties. If the court declares the law constitu- 

 tional, you are to dismiss all proceedings in the Cir- 

 cuit Court of the United States, and give up all 

 claims to the office. 



Mr. Chahoon having agreed to "this proposi- 

 tion, Archibald Dyer, held in custody by order 

 of Mr. Ellyson, and John Henry Bell, im- 

 prisoned by order of Mr. Chahoon, were 

 brought before the Court of Appeals on writs 

 of habeas corpus, and the question of the con- 

 stitutionality of the enabling act was elabo- 

 rately argued. The court decided those sections 

 of the act, in pursuance of which Ellyson had 

 been elected, constitutional. The judges, in 

 their opinion, after declaring that there is 

 nothing in the Constitution of the United 

 States, or of the State, which the act con- 

 travenes, say : 



We have now, we believe, noticed all the grounds 

 taken in the argument by the counsel in this case, 

 unless it be the ground that, by reason of what are 

 called "the fundamental conditions" on which the 

 State was admitted to representation in Congress, wo 

 have only advanced from a provisional to &promndal 

 State, and have not yet gotten back to our original 

 position as one of the sovereign States of the Union. 

 What may be the meaning and effect of these condi- 

 tions is a question which does not arise in this case, 

 as we have endeavored to show that the right of the 

 old incumbents to continue to hold offices is not 

 made one of those conditions. It may not, however, 

 be out of place to say that we regard V irginia as one 

 of the sovereign States of the Union, and as the co- 

 equal in every respect of Massachusetts, New York, 

 Pennsylvania, or any of the old thirteen. 



"We have delivered a very long opinion in these 

 cases, not because we have had any doubt or difficulty 

 in deciding them, but because of the great importance 

 of the question involved,_ the ability and earnestness 

 with which it has been discussed, and the excitement 

 which it has produced. If our decision shall have 

 the effect of settling the question and restoring peace 

 and quiet to the city of 1 Eichmond, we will rejoice to 

 have had an agency in bringing about so desirable 

 an end. 



In obedience to this decision, Chahoon sur- 

 rendered the office of mayor to Ellyson. 



In the following table is given the Federal 

 census of the State, by counties, for the years 

 1860 and 1870: 



