South Carolina Quo iJarranto Case of State, Colurabia, S.Q. , 18'58 ,vs. Thomas P. i/alker YALE UNIVERSITY LIBRARY P R 0 C B^&S^f^^'^ 5*'**^/' I.\ THE QUO WARRANTO CASE OF [THE STATE EX RELATIONE THE ATTORNEY-GENERAL THOMAS P. WALKER. Oo ^ Catolvti^j 2.^^*?r' Qtsz^s COLUMBIA, S. C: ¦IOHN W . I) i; X >.' Y , S I 4. 'l' K I' li I N T E K . 18()S. THE STATE EX RELATIONE THE ATTORN KY- GENERAL VS. THOMAS P. WALKER. The follo'wing correspondence will shew the origin of this case : OfHCK AtTOBNEY-GeNEKAL SoXTTH C.iUOLIJf.i. C'oLrjini.i., 8. C, August 5, .86.*^. Thomas P. Walher : SiB, : I am informed on undoubted authority that you are assuming to act as Coroner of Richland County, although your successor has been elected, and has been duly qualified and entered upon the duties of his office as Coroner. I hereby notify you to desist from any further assumption of the du ties ofthe office of Coroner of Richland Oounty. In case this notice is disregarded by you, I shall take immediate steps to restrain you from further unlawful assumption of the functions of the office aforesaid. Very respectfully, Your obedient servant, li. H. CHAMBERLAIN, Attorney-General South Carolina. Columbia, S. C, August •"), 1868. D. H. Chamberlain, Esq. : Sie : I have received yours of the 5th instant, purporting to be signed by you as Attorney-General of South Carolina. I do not recognize you as the Attorney-General of South Carolina by any constitutional la-w now in existence or by any military appointment. You are, therefore, neither dejure nor de facto Attorney-General of this State. You direct that I shall desist from any further assumption of the duties of the office of Coroner of Richland County; otherwise you will take immediate steps to restrain me from further unlawful assumption of the functions of the office aforesaid. I do not exercise any such office in any such County, nor do I recognize any such County to exist; but I do exercise the office of Coroner of Richland District, under a constitu tional appointment, and from that office I have never been removed, either by military appointment of a successor or by any constitutional law or appointment whatever. I shall therefore continue to exercise the functions of the said office for Richland District until removed by due process from the civil Courts. I beg to refer you to Mr. James D. Tradewell, my attorney, who will be assisted by Messrs. Fickling & Pope on my behalf. Very respectfully, Your obedient servant, THOMAS P. WALKER, Coroner for Richland District. The next step iu the case was an application by the Attorney-General, D. H. Chamberlain, Esq., in the form of a suggestion nr information in the nature of a quo warro.nto, as follows : STATE OF SOUTH CAROLINA, } RicHL.^^ND County. *) To the Honorable A. J. Willard, one of the Associate Justices of the Supreme Court of the said State : Informing, on the part of the State, showeth unto your Honor, Daniel H. Chamberlain, Attorney-General of the State of South Carolina, that, in accordance with the provisions of a Constitution adopted by a Conven tion of the people of South Carolina, and ratified by the people of said State on the 14th, 15th and 16th days of April, in the year 1868, which Constitution provides, in Section 30, Article 4, thereof, as follows, that is to say : " The qualified electors of each County shall elect a Sheriff and a Coroner for the term of four years, and until their successors are elected and qualified ;" and under authority of the Commanding General of the Second Military District, conferred upon said Commanding Gene ial by the terms of the Acts of the Congress of the United States known as the Reconstruction Acts and the Acts supplementary thereto, an election was ordered and held on the 2d and .3d days of June, in the year 1868 ; that at said election William B. Johnston was duly elected to the office of Coroner for Richland County, in the State aforesaid, which election was duly proclaimed in General Orders No. 122, emanating from the Headquarters of the Second Military District, and dated at Charles ton, in the said State, on the 1st day of July, 1868 ; that subsequently to the order aforesaid, the said William B. Johnston was duly qualified and commissioned as Coroner of the County aforesaid, in the State afore said, and entered upon the duties of his office ; that by the terms of Gen eral Orders No. 120, from the Headquarters of the Second Military District, dated at Charleston, June 30, 1868, Paragraph 7, it is declared that the officers elected at the election held on the 2d and 3d days of June shall, after qualification, perform the duties prescribed for said officers by law, under the existing Provisional Government of the State, until the General Assembly of the State of South Carolina shall other wise prescribe by law ; that nevertheless, notwithstanding the facts above set forth, one Thomas P. Walker, of Richland County, in the said State, claims to exercise, and does usurp and exercise, the office of Coro ner, of the County aforesaid, in violation of law, and in derogation of the rights of the people of the said State, and especially of the rights of the aforesaid William B. Johnston. In consideration whereof, and to the end that justice may be done in the premises, the Attorney-General aforesaid prays your Honor that a writ of quo warranto be directed to be served upon the said Thomas P. Walker, commanding him at a certain day, and under a certain pain therein to be inserted, to be and appear before your Honor, and then and there to show by what authority he claims to exercise the office of Coro ner of Richland Oounty aforesaid, and to answer all and singular the premises, and to stand to, perform and abide such order and judgment therein as to your Honor shall seem meet. (Signed) DANIEL H. CHAMBERLAIN, Attorney-General of South Carolina. STATE OF SOUTH CAROLINA, Richland County. Personally appeared before me, Daniel H. Chamberlain, the Attorney- General mentioned in the foregoing suggestion, who, being first duly sworn, saith that the matters and things therein set forth, as of his own knowledge, are true, and such as are derived from the information of others he believes to be true. (Signed) DANIEL H. CHAMBERLAIN. Sworn to before me this 6th day of August, 1868. (Signed) W. B. NASH, Magistrate. In the matter oe the State ex parte The Attorney-General vs. Thomas P. Walker. On reading the suggestion in the above matter, it is ordered that the said Thomas P. Walker do show cause before me, at Chambers, at Co lumbia, on Friday, the Tth August, 1868, at half-past 9 o'clock A. M., why the writ of quo vjarranto should not issue as in the said informa tion is prayed. Let a copy of the said suggestion accompany this order, and be served on the said Thomas P. Walker. (Signed) A. J. WILLARD, Associate Justice of South Carolina. At Chajibees, Columbia, August 6, 1868. The hearing of the case was opened on Saturday, the Sth instant, at half-past 9 o'clock, A. M., when counsel for respondent appeared and moved a, delay. His Honor granted until Monday the 10th instant. On Monday, the 10th instant, the hearing was resumed, and counsel for respondent presented a plea which they denominated a " Plea to the jurisdiction of the Court," as follows: Ex Relatione The Attorney-General vs. Thomas P. Walkee. And the said Thomas P. Walker, upon whom a notice had been served, signed by one A. J. Willard, naming himself " Associate Justice, South Carolina," from which it is inferred that he meant to style himself one of the Associate Justices of the State of South Carolina, commanding him to show cause, at Chambers, at Columbia, on Friday, the Tth day of August, 1868, at half-past 9 o'clock A. M., wby a writ of cfuo loarranto should not issue as in the said information is prayed, in his proper per son, comes and praya that the said Associate Justice ought not to have or take further cognizance of tbe said supposed information at the rela tion of one Daniel H. Chamberlain, styling himself Attorney-General of South Carolina, because he says that tlie said Daniel H. Chamberlain is not the Attorney-General of the State of Soulh Carolina, in whose name and at whose relation only such information can be made in behalf of the said State ; and that Isaac W. Hayne, Esq., is such Attorney-Gene ral, under the Constitution and laws of the State of South Carolina, and under the Constitution of the United States. And because he says that the said A. J. Willard is not an Associate Justice of the State of South Carolina, before whom such information could be preferred, and that the Hon. Benjamin F. Dunkin is the Chief Justice of the said State, and the Hon. David L. Wardlaw and John A. Inglis are Associate Justices of said State, and the Hon. Thomas N. Dawkins, Alfred P. Aldrich and Franklin J. Moses, (if the last named has not accepted a disqualifying office,) are the Judges of the Court pf Common Pleas and General Ses sions of the said State, under the Constitution and laws of the State of South Carolina and under the Constitution of the United States, one of whom only is legally authorized and empowered to hear such informa tion, and sign a rule to show cause under the writ of cj^uo warranto aforesaid. That the said ground of information, if any such grounds of information have accrued to the said so-called Attorney- General of South Carolina, accrued to the said so-called Attorney-General out of the jurisdiction of the said supposed Court, that is, to say, at Columbia, in the District of Kichland, and not at Columbia, in the County of Rich land, or elsewhere, in the jurisdiction of the said supposed Court. And this the said defendant is ready to verify. Whereof he prays judgment whether the so-called Associate Justice can or will take further cogni zance of the action aforesaid. JAMES D. TRADEWELL, FICKLING & POPE, Respondent's Attorneys. Immediately upon the reading of this so-called plea, the Attorney- General moved that it be peremptorily overruled, on the ground that the plea contradicted itself, being entitled " A plea to the jurisdiction of the Court," while by its averments it denied the official existence of His Honor Judge Willard, and thus sought to introduce a matter which could not so much as be entertained by the Judge before whom it was brought. After argument heard, His Honor sustained the motion of the Attorney-General, and the plea was overruled and declared inad missible. The respondent, by his counsel, next moved that time be granted to prepare a proper answer to the original information of the Attorney- General, and the further hearing of the case was postponed until 10 o'clock A. M. on the 10th instant. On resuming the case, on the 10th instant, the respondent, by his counsel, presented a petition to remove the case from the jurisdiction of the State Court to that of the United States, as follows ; Ex Relatione the ATi0Rit to provide for the more efficient government of the rebel States." This Act declares in explicit terms, that no legal ~tate governments now exist in certain States, and among these in South Carolina; and proceeds to declare in what manner the several States specified sball be governed and upon what conditions they shall finally be restored to the Union, and specially enacts that " until such States are by law admitted to representation in the Congress of the United State.-?, any civil govern ment which may exist therein shall be deemed provisional only, and in all respects subject to the paramount authority of the United States at any time to abolish, modify, control or supersede the same." This, may it please your Honor, I contend, is a strict legal statement of the condition of South Carolina when that Act was passed. It as serts precisely what the President had previously asserted when he first commenced the work of reconstruction in this State. It claims no more authority for the Government of the United States over the lately rebel lious States, than the President claimed in 1865. It commences and pro ceeds upon precisely the same hypothesis, upon the same legal founda tion, to wit : That the rebellion had destroyed the State governments which existed during the rebellion, and that no governments nor laws therein could have any legal force or effect until or unless approved, sanctioned or permitted by the paramount authority of the United States. If the authority existed for the President to fix one single condition of restoration to the Union, then the same authority existed for fixing other conditions. I am not speaking of the wisdom or expediency of any plan of reconstruction. I leave all that out of view ; and I say that if, at the close of the rebellion, the legal relations of South Carolina to the Union were such as to give to the President the right to fix one condition to the restoration of South Carolina to civil government, then the same right existed for Congress to fix other conditions ; just s^uch conditions, just so many conditions as might seem to the government to be 'wise, prudent or desirable. Grant the right to maintain military rule in South Caro lina until the Constitutional Amendment abolishing Slavery should be adopted, and you grant the right to maintain military rule until any other proposed. Amendment, or any other action on the part of the people of the State should be adopted. Outside of this, it is merely a political question; a question of prudence, of statesmanship, of public policy. I am not here to-day, as I have already said, to maintain or to deny the wis dom of any plan of reconstruction ; but I am here to discuss the Ica^ relations of South Carolina to the General Government, and the powers of the general government to fix the conditions of a restoration of the people of the State to civil government and to the Union. And I confi- 19 dently lay down the proposition here now, before your Honor, that un der any theory or plan of reconstruction, it has been admitted and claimed by both the branches of the General Govemment which have differed most widely in their views of the question as one of public policy, that legally and constitutionally the general government has com plete and unrestricted power over the whole question. The President in his plan of reconstruction, claimed and exercised such power ; Congress, in its plan of reconstruction, has claimed and exercised the same power. And all this is but the necessary legal result of the relations which existed between the conquered rebellious State of South Carolina and the conquering Government of the United States. We have discovered, therefore, may it please your Honor, I think, the legal, constitutional grounds upon which any plan of reconstruotion must rest and proceed. It results from the fact that South Carolina attempted to set up here a government, alien, foreign and hostile to the Government of the United States ; that as the result of the conflict which ensued, South Carohna with her pretended government was conqucrnl, conquered by the irresistible arms of the military power of the United States. That victory of the arms of the Union left South Carolina, as a neces sary consequence, luidiout gover'nment ; and no State government could ever originate or gain the least legal validity except by the sanction of the General Government. The law-making power of the government refused its sanction to the government set up in accordance with the Presidential plan of recon struction, and as a result, South Carolina was still without any legal or valid State government. In fact, may it please your Honor,'it was never asserted or claimed by the Executive that his power alone, extended to the validation of the State governments set up under his advice and direction, or that any thing short of the formal sanction of the work of reconstruction by Con gress, could entitle a State to restoration to the Union. Congress in the exercise of its discretion, and in the exercise of the same general powers which the President had invoked in taking thefirst steps of reconstruction in 1865, passed the Act of March 2, 1867. It is true that this Act failed to receive the Executive approval, but it was passed in the constitutional manner over the Executive veto. I as sume, may it please your Honor, that no one will pretend that that Aet possesses any less legal validity and force on account of the fact that it was passed over a veto. That Act of March 2, 1867, and the supple mentary Acts of March 23, and of July 19, of the same year, and of March 11, 1868, were all constitutionally passed by a vote of two-thirds of each House of Congress over the Executive veto. 20 Those Acts, one and all, are la.ws of the law/, unrepealed, constitution ally enacted. They have never been pronounced unconstitutional by the judicial branch of the general government. They have been of full force and validitjr from the date of their passage until to-day. It is true that the Executive has pronounced them unconstitutional, and that he still maintains that position, but I do not think that any one will claim ; I do not think that the learned counsel for the respondent will claim, that the opinion of the Executive, however often proclaimed or honestly enter tained, can affect the validity of an Act of Congress duly and constitu tionally passed. It is true, too, that many, private citizens of distinguished ability and influence, among them I suppose my learned friends, the counsel for the respondent, hold that these Acts are unconstitutional. But I do not think that my learned frienda will claim that any opinions of diatin guished citizeni!, however eminent or patriotic, not even the opinions of an entire political party, can destroy the force or validity of theae Acts. No, may it please your Honor, whatever men may say or think, what ever the learned counsel for the respondent, whatever you or I may think or say, these Acts are law to-day. Every man owes obedience to them, from the Chief Executive of the nation, down to the humblest man within our borders. Future legislators may repeal them ; the Judicial tribunal of the country may declare them unconstitutional ; but until repealed by the same power which enacted them or set aside by deci aion of the constitutional tribunal of the Supreme Court of the United States, they are laws ; lawa to be respected, to be obeyed ; aye, may it please your Honor, to be enforced, to be executed. And now, may it pleaae your Honor, we have arrived at this point in the progress of our argument ; we have seen that the Acts of Congress, under and by virtue of which this proceeding and cause which we are diacuaaing to-day has arisen, were passed in pursuance of a clear and unquestionable right on the part of the Government of the United States, to fix such conditions of re- admission for South Carolina as should be deemed expedient or desirable, and that, tried by every legal test, they are constitutional laws Now, may it please your Honor,- the Acts of Congress of which I have spoken, mainly prescribe certain conditions of re- admission to the Union, having reference mainly to the claases of peraona entitled to vote on questions arising prior to the re- admission, and to the mode and manner of conducting the elections rendered necessary by the conditions of re- admission. I do not think it necessary for me to occupy any time, may it please your Honor, in proving that the present Constitution of thia State has 31 been framed in strict conformity to the Reconstruction Acts of Congress. I shall content myself upon that point with challenging any one to point -out any deviation from the strict letter of the law. The present Consti tution is the legitimate result of the Reconstruction Acts of Congress, It has been submitted to the scrutiny of the Congress of the United States ; has been by them approved. South Carolina Ijas been again admitted to representation in the Congress of the United States, and to a full share in all the rights, privileges and immunities of a State of this Union. Here, then, may it please your Honor, we take our stand. We have received a rule of conduct to guide us in our way to a restoration to the Union. We have foUowed that rule. Our action has been accepted and approved, and upon a valid constitutional and legal basis we take our place again in the great sisterhood of American Statea. Old things have passed away; the lost has been restored; the rebellious has become loyal ; the provisional has become permanent. The iron hand of mili tary rule has been withdrawn, and laws long silent amidst arms again resume their mild aild peaceful sway. So may it be ! So lel it be .' I am aware, may it please your Honor, that I have occupied consider able time in the discussion of a branch of the subject which I stated at tho outset, I did not consider aa directly or necessarily involved in the decision of the issue now raised. But as the preliminaries of this pro ceeding had indicated to me that our right — your right and mine, in our official stations, and the right of the entire people of the State, acting under our present Constitution — was to be drawn in question, I desired to present somewhat fully, and with as much clearness as I was able, the exact legal status of the present government of this State ; the grounds of law upon which we propose to stand and to act. Taking, then, our present State Constitution as a starting point, I have already shown you, by the proper documentary evidence, that the claim of William B. Johnston to the office of Coroner of Richland County is perfect and complete. There is but one other branch of the discussion to which I desire to direct your further attention. By the terms of General Orders No. 120, published from the Head quarters of the Second Military District, and dated June 30, 1868, it is directed that " all officers of the States of North Carolina and South Carolina, duly elected and qualified under the Constitutions thereof, and not prohibited from holding office in said States by the third Section of the proposed amendment to the Constitution of the United Statea, known as Article XIV, will, upon the ratification of the said amendment by the 2g Legislature, be inaugurated without delay, taking the oath of office pre scribed by the Constitutions of tiie States in which they have been elected, and otherwise qualifying in conformity with the laws of the said States." By the terms of Section 7 of the same order, it is further di rected that " until the General Assembly of the State of South Carolina shall expressly prescribe by law the duties of the Sheriffs, Coroners and Clerks of Courts chosen, or authorized to be chosen, at the election held in said State on the 2d and 3d of June, 1868, the officers so elected shall, after qualification, perform the duties prescribed for aaid officera by law under the existing Provisional Government of the State." This order, dated and published prior to the date of re-admission of the State to the Union, directs the doing and prescribes the manner of doing certain Acts and things after the State ahall have been restored to the Union and to civil rule, and afte- the new State Constitution shall have become operative and the General Assembly shall have met. This question, therefore, arises : can such a military order be of force after the rule of civil law has been reatored ? And this question fairly arises upon the record of this case. , For it was in conformity to this order of the military commander that William B. Johnston qualified and entered upon the duties of hia office as Coroner. I have already stated in a former part of thia argument, that I held that under and along with the present Constitution of this State, a.l ex isting statutory enactments of the State, not previously abrogated or modified by the military authority of the United States, and all existing orders of the military commanders of the State not inconsistent -with the existing Constitution of the State, continued of force and validity, and possessed to-day force and validity, unless they have since been modified or repealed by the legislative power of the State. In support of this position, I desire to direct your Honor's attention to a very satisfactory case which is found in the 20 Howard, 176 ; the case of Leitensdorfer et al. vs. Webb, in which the principle of law which I have laid down finds illustration and statement. This was a case which was brought up by writ of error, from the Su preme Court of the Territory of New Mexico. I quote from the opinion of the Court, as delivered by Mr. Justice Daniel. "Upon the acquisition in the year 1846, by the arma of the United States, of the Territory of New Mexico, the civil government of this Territory having been overthrown, the officer, General Kearney, holding possession for the United States, in virtue of the power of con quest and occupancy, and in obedience to the duty, of maintaining the security of the inhabitants in their persons and property, ordained un der the sanction and authority of the United States, a provisional or tem- porary government for the acquired Territory. By this substitution -of a new supremacy, although the former political relations of the inhabi tants were dissolved, their private relations, their rights vested under the government of their former allegiance, or those arising from contract or usage, remairied in full force nnd unchanged except so far as they were, in their nature and diaraeter, foun,/ to he in coriflici witli the Constitu tion and laws of th'- Unit d States, < r -wth 'iny 7 i-gulatioyis whieh the conquering and occupying authoiity should ordain. Amongst the con sequences which would be necessarily incident to the change of sover eignty, would be the appointment or control of the agents by whom and the modes in which the government of tk.e occupant shall be adminis tered — this result being indispensable in order to secure the object for whieh such a government is usually established. This is the principle of the law of nations, as expounded by the highest authorities." Again, the Court say in the same case, "of the validity of the Ordi nances of the Provisional Government there is made rio question with respect to the period during which the territory was held by the United States as occupying conqueror; and it would seem to admit of no doubt that during the period of 'heir valid existence and operation, these Ordi nances must have displaced and superseded every previous institution of the vanquished or depoaed political power which was incompatible with them. But it has been contended that whatever may have been the rights of the occupying conqueror as such, these have all terminated by the termination ofthe belligerent at'itude ofthe parties, and that -with the close of the contest every institution which had been overthrown or suspended would be revived and re-established. The fallacy of this pre tension is exposed by the fact that the territory never was relinquished by the conqueror, nor restored to its original condition or allegiance, but was retained by the occupant until possession waa matured into abso lute, permanent dominion and sovereignty, and this, too, under the set tled purpose of the United States never to relinquish the posaeasion ac quired by arma. We conclude, therefore, that the Ordinancea and insti tutions of the Provisional Government would be revoked or modified by the United Sratea alone, either by direct legislation on the part of Con gress, or by that ofthe Territorial Government in the exercise of pow ers delegated by Congress ; that no power whatever, incompatible with the Constitution or laws of the United States, or with the authority of the Provisional Government, was retained by the Mexican Government, or was revived under that Government, from the period at which the poaaession passed to the authorities of the United States." This case, may it please your Honor, I hold to be, mutatis mutandis. 24 strictly applicable to the present condition of our State, and to fully sup port the doctrine which I have advanced in this case. Upon the restoration of civil rule in this State, all previously-existing liws of the Provisional Government, whether existing in ihe form of the previous statutes of the State or of military orders afiecting the rights of person or property, continued in force, and can only Vie repealed or abrogated by the direct action ofi the Legislature of this State The Order of June 30, 1868, from the military commander of this .^-^tate, so far as it is now applic.ible, and not inconsistent with the present Consti tution of the State, is in force this day ; and so far as it affected the man ner of qualification of the Coroner of Richland County, or so far as it affects his duties and powers as Coroner to-day, is in full force. In con forming, therefore, to the Order of June 30, 1868, the newly-elected Coroner of Richland County completed, in a legal manner, his right and title to the office. May it please your Honor, I am not aware that there is anything fur ther which I ought to urge on behalf of the State, in this proceeding. I do not forget that I have made no reply to the greater part of the re marks, I cannot say arguments, which have been addressed to j'ou by the learned counsel for the respondent. However complete the answer which might be made to the political atpersions which have been ao openly and persistently cast in this discussion upon those who are con nected with the present State Government of South Carolina ; however strong the temptation may be to follow the style and course of remark which the learned counsel opposed to me have adopted, I shall not yield to it for one moment If there be honor or fame in degrading a judi cial issue and a judicial tribunal into an occasion for indulging in lan guage and reflections appropriate to a discussion of the issues of a politi cal campaign, I do not seek it. I am not now at the hustings nor on the stump ; but I am in a judicial presence, and I will not so far forget the teachings of my youth, my own convictions of propriety, or the dignity of my official station, as to allow myself to be led into the utterance of a single word which shall tend to introduce into this discussion those politi cal feeling? which ought to be silenced when grave legal issues aro ex amined. I bid the learned counsel for the respondent, therefore, wel come to all the glory whioh can be derived from an attempt to degrade and embitter these discussions to-day by considerations which appeal only to the political prejudices and divisions of the hour. I have endeavored, may it please your Honor, to show you, Ist. That the remedy for the wrongful usurpation of the office of Cor. oner of Richland County, by Thomas P. Walker, is correctly and appro priately sought in the proceedings which we have here instituted on be- 25 half of the State, by an information or sugirestion in the nature of a quo warranto. 2d. That your Honor, as Associate Justice of the Supremo Court of this State, has authority, sitting in Chambers, to hear and give judg ment, on thia proceeding. 3d. That agreeably to the provisions of the Constitution of this State and the orders of the commanding General, William B. Johnston was duly elected Coroner of Richland County; that the said William B. Johnston duly qualified in accordance with existing laws and in con formity to the orders of the commanding General ; that the said Wil liam B. Johnston received a commission in due form from the Governor of the State ; that the said William B. Johnston made due demand upon the then Coroner of Richland County, Thomas P. Walker, to surrender to him the said office, together with his " Books of Inquests ; " that the said Thomas P. Walker then refused and has since continued to refuse to surrender and vacate the office of Coroner, or to turn over to his suc cessor in office the property of the office. 4th. That the office of (!oroner of Richland County is an office estab lished by the Constitution of thia State, adopted in conformity to the Re- conatruction Acts of Oongreas. 5th. That the Reconstruction Acts of the Congress of the United States were constitutional and valid Acta, of full legal force and efi'ect until they became inapplicable by their own limitation. 6th. That all the conditions prescribed by the Reconstruction Acts for the re-admisaion of South Carolina to the Union, have been satisfied by the people of the State ; and that her Constitution having been approved by the Congress of the United States and her Representatives admitted to seats in Congress, her present State government is, in all respects, a constitutional and valid government of the State of South Carolina. 7th. That the General Order of June 30, 1868, prescribing the mode of qualification of Coroners and other officers, and the- duties of such officers, is valid and legal as a part of the laws of South Carolina, until auch time as the same shall be abrogated, modified or repealed by the action of the General Assembly of the State. Sth. That William B. Johnston, having been duly elected, qualified and commissioned as Coroner of Richland County has a complete legal claim and title to the office aforesaid. 9th. That the term of office of Thomas P. Walker having expired by the constitutional election and qualification of his successor, his further holding of the office and assumption of its duties, is a wrongful usurpa tion, in violation of law ; and in derogation of the rights of the people of 26 this State, and especially of the riglits of William B. Johnston, his law ful successor. This, may it please your Honor, is the ease which we present on be half of the State, against this respondent ; and when we consider the issues whieh we have found to be involved, moro or less directly, this proceeding loses ita aeeming inaignificance, and is seen to be an iaaue which deeply affects the peace of this community, the validity and force of our laws, and the permanence and dignity of our government. Viewed in this light, it is an issue which touches the validity, the stability, the success and the permanence of every step taken, from the day when Lee and Johnston furled their banners, those hateful symbols of an unhal lowed rebellion, down to the present hour. Decide for this Respondent, may it please your Honor, and you put the seal of yonr condemnation upon that great system of laws which has been developed in order to obliterate and repair the cruel wastes of war, to bind up the wounds inflicted by rebellion, and to ordain and establish Peace, Justice and good will in South Carohna. Decide for this Respondent, and you brand aa a usurper every man who now holds position in virtue of the present Constitution of this State ; and you brand the Conatitution under which we now act as an illegiti mate, unlawful and revolutionary work. Aye, may it pleaae your Honor, decide for this Respondent, and you break down the Bench itself on which you now sit. May it please yonr Honor, in the name of the State we ask judgment againat thia respondent We aak it for the peace of our community, for the dignity of our government, for the aupremacy of our laws It only remains for me, therefore, to move your Honor that a writ of ouster do issue against this respondent, Thomas P. Walker, commanding him, the aaid Thomaa P. Walker, to vacate forthwith, and under an ap propriate penalty therein to be inserted, the office of Coroner of Rich land County ; to surrender the property of that office to William B Johnaton, hia lawful successor, and henceforth to abstain from doing and performing, or assuming or pretending to do or perform, any and al. acts pertaining to the said office. OPINION OP THE COUET. Chambers Supreme Couet, Columbia, Auguat, 15, 1868. The State ex Rel. The Attorney-General vs. Thomas P. Walkee. Willard, Associate Justice. The Attomey-General, in behalf of the State, has filed a suggestion and obtained a rule to show cause for the^ purpose of ousting the respond ent from the office of Coroner of Richland County. The respondent has 27 appeared and made claim to exercise and enjoy the office in question, under an appointment to that office made by the Govemor of the State, and has produced a commission therefor, bearing date the 2l8t day of December, 1864. He claims that by the tenure under which he holds said office his term will not expire until the 2l9t day of December, 1868. On the other hand, it is claimed in behalf of the State, that William B. Johnston is the lawful I oroner of Richland County, and holds under commission from the present Governor, and has duly qualified, and has demanded of the respondent possession of all matters ,ippertaining to said office, and that the respondent has refu.sed to de iver the same to said Johnston. The question at issue ia the right of the respondent to hold aud ex ercise the office of I'oroner. According to the ca.se presented, in behalf of the State, the termination of the right of the respondent to hold the offiee in question depends upon the due election or appointment, as the case may be, of Johnston, and hia having qualified therefor under tbe provisions of the ( 'onstitution of the State. The title by which Johnston claims the office in question having arisen while the State was under military government, in pursuance of the au thority of the Acts of <'ongrea.s commonly known as the Acts of Recon struction, it ia contended by the courispl for the respondent that such title is nugatory and void, the authority by iwhich such military government acted being in derogation of thi- rights of South Carolina as a State under the Constitution of the United States. The precise question pre sented before the Court, as involving the merits of the preaent contro versy, is whether the supreme authority invested under the Acts of Con gress with powers of military government over persons and property within the State of South t'arolina, regarded as a part of the Second Military District, could rightfully terminate the right of the respondent to hold the office in question, and vest in the claimant, Johnston, a right and title to said office, which can be recognized under the existing ' on stitution and laws of the Stat^^ It is not denied that ( ongress aought to confer such power, and that the commanding officer representing the military authority within such Military District has assumed its exercise. The practice established under the statutes of the State authurizes a Judge I'f the Appellate Court to hear and determine, at chambers, ques tions of this character, and to award such judgment as the nature ofthe case may demand. The grounds of this jurisdiction need not be stated, as they were not the subject of contest in this case. The issue involved in this case is ono of momentous importance, both as affecting the validity of acta of public authority, to which legal inter ests of great magnitude, both public and private, have become conformed, and as the first appeal to the Judiciary, under the present Constitution of the State, upon grounds that have formed the subject of exciting forensic discussion, and which can only command acquiescence when fairly brought to the test of established principles of constitutional and statutory construction. In view of the present nature of the question at issue, it is due that the position assumed by the respondent's counsel should be succinctly stated. The foundation of the title of the respondent is claimed to be the Constitution of this State, adopted June 3, 1790, and the amend- 28 ments thereof, and the statutes passed in pursuance of such authonty.^ It is contended that he is entitled to the enjoyment of the full term ot four years from his appointment and commission, on the grounds : First. that by the tenure of his office, he has an indefeasible right or property in the same for the full term originally created, as against any public authority whatsoever ; and, seoond, that no rightful authority existed, or could exist, under any Act of Congress, competent to terminate the term of office created by and uuder the Constitution and laws of South Carolina. It is argued that South Carolina Is, and has been, from a time earlier than the Constitution of the United States, a sovereign ; that, by a dele gation of express powers, incapable, bf its terms, of b"ing enlarged by implication, she parted with to the United States no righta in derogation of her sovereignty ; that her ancient Constitution and laws ever have been, and are, the only tests of validity and legality in relation to all matters of internal government, and affor-l the only electoral basis upon which rightful authority can stand within the State ; that, as a State, ahe is, and always has been, unaffected in her legal rights and immunities, both as sovereign and under the Constitution of the United States, by the recent rebellion and its legal and political results and consequences ; that the rebellion was a^ matter between the citizens of the State and the Federal authority that did not concern or affect her rights as a State ; that the only consequence that could rightfully follow the successful arms of the United States, was the arrest and punishment of the individuals engaged in rebellion, under the Constitution of the United States, as in dividual offenders ; thatthe constitutional relations of the State to the United States remaining unchanged, notwithatanding the war, it was not competent for Congress to prescribe the calling of a Convention to frame for U9 a Constitution and form of government, nor to prescribe and de fine an electoral basis unknown to her Constitution, in furtherance of such purpose. It waa also contended that the Constitution of 1865, and the terma of adjuatment impoaed by the Preaident of the United Statea, were accepted under a dureaa of circumstances, leaving the State without freedom to accept or reject them. Considering the first ground presented by the argument, namely : That the tenure of the office of Coroner was unalterably placed beyond the power of the State to destroy or diminish it, it is clearly a misconception of the nature of an office, as existing under our system of government. The office in question was not an estate held by grant or patent, but a power held by commission of, and from, the people for whose sake it was enjoyed, upon certain prescribed terms and conditions, and by whom the authority delegated could be withdrawn, whenever the public wel fare — the suprema, lex — demanded its withdrawal. The remaining ground of argument must be examined by the light of the powers conferred upon Congress, and inhibited to the States by the Constitution of the United States, and gives rise to two questions : First whether the State, as such, became, by the existence of the war of re bellion, subjected to the war powers lodged in the Government of the United Statea ; and, second, whether by the terma and proper effect of 29 that instrument, those powers were so limited as to place beyond their sphere the rights and immunities claimed for South Carolina in this case. Could, therefore, the war powers of the United i^tates be properly di rected against a State as such ? These powers, as they are vested in Congress, relate to declaring war, granting lettors-of-marque and re prisal, and making rules concerning captures on land and water ; (Article I, Section 8), raising and supporting armies, providing and maintaining a navy, making rules for the Government and regulation of tlie land and naval forces, provding for calling forth the militia to execute the laws of the Union, suppress insurrection and repel invasion, providing for or ganizing, arming and disciplining the militia, and for governing such part of them as might be employed in the service of the United States, with certain reservations to the States as to the appointment of militia officers and training the militia when not in the service of the United States, suspending the writ of habeas corpus in cases of rebellion and insurrection, when the public safety might require it. (Section 9.) The powers, as vested in the President of the Uni'ed States, are that he shall be Commander-in-Chief of the army and navy of the United States, and of the militia of the several States, when called into the actual service ofthe United States (Article IV, Section 4.) In addition to these is the general grant of power, applicable alike to its civil and military func tions, implied by the declaration of the objects of the establishment of the Union — namely, to establish justice, insure domestic tranquility, provide for the common defence, promote the general welfare, and se cure the blessings of liberty to the nation. (Preamble.) To this should be added the right to make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested by the Constitution in the Government of the United States, or in any department or officer thereof. (Article I, Section 8.) This ample charter of war powers, as full and complete as that enjoyed by any Government recognized as possessing national attributes, confers upon tbe Federal Government power to determine as to the causes and condi tions upon which these powers should be put in exercise, the ends to wards which they should be addressed, and the means appropriate to the attainment of those ends, so long as they belong to the class known as war powers. -The question then arises, can a State become the proper subject of the exercise of these war powers ? The general proposition bearing upon this subject is that any organized community, capable of ci eating and wielding military power, can be both actor and subject in relation to the exercise of such powers. The States of the Union having at their com mand organized militia, capable of raising, arming and maintaining troops, and procuring munitions and supplies of war, are clearly compe tent to engage in war, except so far as that competency is interfered •mth. by the Constitution of the United States. That instrument acts only upon their legal capacity to make war, not upon ^ their power to maintain war when once lawfully made. It recognizes, in certain cases, the right of a State to defend itself by means belonging to war, when placed in jeopardy, and time is not allowed to invoke the military aid of the United States. In a word, if any case can arise under the Consti tution where the Government of the nation would be justified in bring- 30 ing the constitutional powers of the Government to bear upon the State for the accomplishment of a lawful end, resisted by the State, the neces sity of a resort to arms would arise from the very fact that the subject of these powers in the given case was an organized community, possessed inherentlj' of military powers. Turning, then, to the Constitution, we find that such a case may arise, but is most likely to occur under the provisions inhibiting certain powers to the States, namely : that to enter into any treaty alliance, or confed'ration, or grant letters of marque and reprisal, (Article 1, Section 10.) It is not enough to say that the Con stitution executea itself by instantly annulling such transactions, for the prohibited alliance or confederation might exist for the very purpose of destroying that ("onstitution — aa waa the case in the war of rebellion ; nor would the legal invalidity of letteri- of marque and reprisal accom plish that protection to commerce intended to be secured by the consti tutional provision under consideration. It is, therefore, free from doubt that a State may, consistently with the Constitution, place herself in such a position as to become rightfully subject to the war powera of the na tion. This leads to the inquiry whether the State of South Carolina occu pied such an attitude to the Government of the United States. She passed as a State, an ordinance of secession that was the immediate cause of the war ; she made an alliance and confederacy with certain other States, in violation of the express prohibition of the Constitution. With her confederates, she made war, in the fullest sense, against the nation ; raised, armed and maintained, at the public cost, armies and a navy, to oppose the military power of the United States. She put in commission officers to command her armies and navies, and imposed taxes for the maintenance of a State of war. All this was done by the State as an individual, and as a member of a confederation of States ; and thus assumed an attitude that rendered it necessary that the United States should relinquish the Uuion and the Constitution, or put in opera tion all her rights and energies as a sovereign, capable of making and maintaining war. Having this right, the next question that arises is, Did she exercise it '? AU the departments of the government have, each in its proper sphere, recognized the fact that the war of rebellion waa carried on against Statea and not against the individuals composing those States, exclusive of the participation of the States themselves. President Lincoln, by his proclamation of August 16, 1861, declares that an insurrection against the laws, Constitution and Govemment of the United States had broken out in certain States, including South Caro lina ; that he had called forth the mihtia, under the Act of February 28, 1795, to suppress such insurrection, and to cause the laws to be exe cuted, and that the insurgents had failed to disperse ; that other States had since become involved therein. He states : " And whereas, the in surgents in all the said Statea claim to act under the authority ' thereof and auch claim ia not disclaimed or repudiated by the persons exercising the functions of government in such State or States, or in the part or parts thereof, inlwhich such combination exist ; nor has such insurrec tion been suppressed by said States," he, therefore, declares that the in habitants of said States, excepting West Virginia, are in a state of in- 31 surrecti'on against the United States, and that all commercial intercourse between them and other parts of the United States is unlawful, and cer tain property was declared subject to forfeiture. This was an Executive declaration, recognizing the fact that the rebellion had developed itself as a rebellion of certain States as organized communities ; hence he does not distinguish, in dealing with them, between citizens of those States who were implicated personally in the rebellion and those which ab stained from such action ; but treats all inhabitants alike, as necessarily was the case where the State of which they were members had assumed the attitude of war. The same general conclusions were embraced in the joint resolution of the Senate and House of Representatives, adopted July 22, 1861. The rebellion was there characterized as a war directed against the Constitu tion and Government of the United States, and the object of that war, on the part of the United States, was declared to be to defend and main tain the supremacy of the Constitution, and to preserve the Union, with all the dignity, equality and rights of the several States unimpaired, and that as soon as these objects were accomplished, the war ought to cease. The Supreme Court had the question of the status of the rebellion be fore them in 2 Black, 635, and regarded the war as formal and justified by the circumstances, as adequately declared under the provisions of the Act of July 13, 1861, and as a war against States organized in rebellion, and held that the laws of war relative to capture and condemnation were operative. Thus it will be seen that the State of South Carolina, capa ble of being placed in such a relation to the General Government as to involve herself in the consequences and effects of war with that power, actually occupied that position aa the consequence of her own action ; that the Government put in exerciae its constitutional powers, and con tinued to exercise the same until ahe re-entered the Union, under her present Constitution, having complied with the terms and conditions ex acted by the war power of the government, as essential to the accom plishment of the objects for which the war waa waged. It is not within the competency of a State tribunal to declare that the objects sought in the war were not legitimate and the means without the Constitution, ao long aa they properly belong to the class of war powers. The United States having entered and reduced the State in the right of conquerors, succeeded, by the laws of war, to the local powers of government displaced by martial authority, and while so invested with as full and legitimate local authority, under the laws of war, as the State had enjoyed under the Constitution previous to the war, and a termina tion not having been put to the state of war by the concurrent action of the constitutional powers, to whom belonged the restoration of peace and the stipulation of the terms and conditions on which it should de pend, passed certain ordinances — among which was one providing for the calling of a Convention of the people to re-frame the government of the State — and prescribing the electoral basis upon -which such govern ment should exist. With the policy and necessity of such legislation, this Court has no concern, nor can it rightfully determine whether the other conditiona of pacification were necessary or appropriate. It can look no farther than to see that the powers exercised are of the class con- ¦~2-S. 2 2,. ferred upon the United States ; nor can it find any ground to affirm that Congress has travelled beyond the scope of these powers. The election of Johnston, being conformable to the authority derived from the Acts of Reconstruction, was valid, and the declaration of the result completed a title to the office in question, subject to an act to be performed by himself, namely : the taking of the oath of qualification. It was competent for him to demand, under the Constitution of the State, the possession of the office upon the principles laid down by the Supreme Court of the United States, in the case of Litensdorfer vs. Webb, 20 Howard, 176. The State is entitled to judgment of ouster against the respondent. Upon the delivery of the foregoing opinion of His Honor Judge Wil lard, the Attorney-General moved that judgment be issued against the Respondent in the following form, which motion was immediately granted. JUDGMENT. the state ex EELATIONE THE ATTORNEY- GENEEAL VS. THOMAS P. WALKER. Chambers of Supreme Couet, S. C, Auguat 17, 1868. Upon hearing the arguments in the above-named proceeding, and upon mature consideration thereof, it is ordered, that the respondent, Thomas P. Walker, do forthwith, and upon pain of contempt of this (."ourt, va cate the office of Coroner of Richland (bounty ; that he, the said Thomas P. Walker, do forthwith deliver to WiUiam B. Johnston, of the County aforesaid, all and singular the books and property of the said office of Coroner of the County aforesaid, and that henceforth, he, the said Thomas 1'. Walker, do abstain from doing or performing, or assuming or pretending to do or perform, any act or acta whatsoever, in any man ner pertaining to the office of Coroner aa aforeaaid. Let a copy of this judgment be served upon the said respondent, Thomas P. Walker. Witneaa, my hand, this 17th day of August, 1868. A J. WILLARD, A. J., Supreme Court of the State of South CaroUna. Upon the conclusion of the delivery of the foregoing opinion, counsel for the respondent gave notice of an appeal from the decision of His Honor Judge Willard to the Supreme Court of the State. On the 21at inatant the Attorney- General applied for a Rule on the re- apondent to show cause why a writ of attachment for contempt should not issue againat him in virtue of the foregoing judgment. The Rule was granted and made returnable on the 22d inatant. The State ex Relatione the Attorney-General vs. Thomas P. Walker. Chambbe Supeeme Couet of State of South Caeolina, '21at August, 1868. Upon motion of the Attorney- General, aupported by due evidence, a 33 Rule is now granted, directing the respondent, Thomas P. Walker, to appear before me on to-morrow, the 22d day of August, 1868, to shew cause why a writ of attachment for contempt of this fourt should not issue against him, the said Thomas P. Walker, in virtue of a judgment of this Court, rendered on the 17th day of August, 1868. A. J. WILLARD, AssociatL' Justice Supreme Court of State of South Carolina. On the 22d, the respondent appeared by counsel and made the follow ing return to the Rule : Thomas P. Walkee ads. the State ex eelatione the Attoeney-Geneeal The respondent, Thonias P. Walker, upon whom a Rule to show cause why he should not be attached for contempt in not obeying the mandate of the Court in the above stated case, has been aerved, for cause shows that he has served the Judge and the Attorney-General with notice of appeal from the decision of Hia Honor Judge Willard, and he respectfully submits that such notice of appeal operates as a su persedeas or suspends the execution of the judgment until the hearing of the appeal, and that the respondent is not in contempt. (Signed) THOMAS P. WALKEfi. Counsel for the respondent also presented the following GROUNDS OF APPEAL. Thomas P. Walkee ads. the State ex Relatione the Attoeney-Gen eeal. At (Jhambees, Columbia. The respondent, Thomas P. Walker, hereby gives notice that he ap peals from the judgment of ouster in this case, rendered by His Honor A. J. Willard, Associate Justice, on the 17th day of August instant, and will move the Supreme Court of the State of South Carolina, at their next sittings in Columbia, to reverse the aame on the foUowing grounda : 1. Because it is respectfully submitted that the said Thomas P. Walker is Coroner of Richland District under the Constitution of the State of South Carolina, ordained and estabUshed by the people thereof on the 3d day of June, Anno Domini 1790, and the amendments thereto subsequently ordained and established, and in pursuance of the Acts of the Legislature of the said State, passed and ratified under the authority of the said Constitution, and the amendments thereto, which said Con stitution and amendments and Acts of Assembly are in accordance with the authority of the Constitution of the United States. 2. Because the said Thomas P. Walker having been duly appointed as aforeaaid to hold the office of Coroner for four years, and until his suc cessor should be appointed (which term has not expired;, that the said WilUam B. Johnston has not been lawfuUy appointed auch auccessor, having been elected under an instrument purporting to be the Conatitu tion of the aaid State of South Carolina, which said supposed Constitu tion is in conflict with the provisions of the Constitution of the United States, and is, therefore, to all intents and purposes null and void, and 6 34 the election of the said William B. Johnston under the same ie alao null and void. (Signed) JAMES D. TRADEWELL, (Signed) FICKLING & POPE, Attorneya for Respondent. August 19th, 1868. The question raised of the effect of the appeal taken was argued on the 22d instant, by Messrs. Fickling & Pope on the part of the respond ent, and the Attorney-General on behalf of the State. On the 25th instant, His Honor Judge Willard, rendered the following OPINION. The State ex Rel. Attoeney-General vs. Thomas P. Walkee. A. J. WiLLAEB, Associate Justice. The Attomey-General has appUed for an attachment against the re spondent for contempt, alleging a refusal on his part to comply with th? terms of the judgment of ouster heretofore rendered against him for usurping and unlawfully exercising the office of Coroner of Richland County. The only question raised on the argument was whether the appeal which has been taken from the judgment operates as a supt^se- deas in reference to the remedial action sought in the present proceed ing. The remedy afforded under the laws of this State in cases in the na ture of quo warranto is based upon the Statute of 9 Anne C. 20, made of force by Sec. 11 of the Act of December 12, 1712, settUng the mode of pleading, and of disposing of iaauea of fact arising, and the form of judgment appropriate to the case. It authorizes a judgment of oustee and also the imposition of a fine for the usurpation, as well as costs to the prevaiUng party. The right of granting the writs of prohibition, manda-mus and quo warranto, was conferred upon the Judges of the Court of General Ses sions and Common Pleas at their Chambers, in the same manner and with the same effect aa if done in open Court, and the right of appeal to the constitutional Court of Appeals was secured by Act of 1818, (Stat, at Large Vol. 7, p. 321.) The exact queation raised, appears not to have been authoritatively decided in this State, but a question depending on the same general principles was presented in Pinckney vs. Henegan, (2 Strob., 251), where it was decided that an appeal from a peremptory mandamus was not a supersedeas, but that the writ must be obeyed notwithstanding such appeal. The Court places its decision on the authority of the case of the Dean and Chapter of Dublin vs. Dowgatt, 1 P. WiUs, 349, ap proving the grounds of decision afforded by the report of that case. ' The case of the Dean and Chapter of Dublin vs. Dowgatt arose shortly after the passage of the Act of 9 Anne, and is an authority bear ing upon the present question, so far as it is influenced by the terms of that statute. The question before the Court waa, whether the pendency of a writ of error to bring up a peremptory mandamus was a supersedeas 83 of the writ. It was held not to be a super sedeoM, " for that such a con struction would quite defeat the end of the statute, and prevent the of ficer who waa choaen annually from having any fruit of the maiidamus," Thia expression must be regarded as a quaUfied statement of the more general doctrine, readily recognized, that the subjects of controversy ordinarily involved in cases of mandamus are of such a nature that de lay in affording a remedy is equivalent to its denial. Such must also be the understanding of the general observations as to the effect of refusing a supersedeas made by the leamed Judge who delivered the opinion of the Court in Pinckney vs. Henegan. The basis of decision thus laid down in reference to the case of man damus is still more forcible in its application to cases of quo warranto. The former case concerns only aome one official act to be performed, while the latter involves the capacity of performing any official act what ever. In both cases the public have the primary interest involved, and the respondent but a secondary. So, in tnandamus, the extent of that interest is limited to the performance of a single act of duty, while in the case of quo warranto that interest is commensurate with the import ance of the very office itself. Apart herein from any consideration of the intimate relationship ex isting between the two remedies under consideration growing out of their remedial uses, they are brought into pecuUar relation, both by the Act of 9 Anne and that of 1818. They are treated in both Acts as part and parcel of the same system of remedial means, while in the latter Act they are invaUd in reference to the very right of appeal itself. The inference is irresistible that the effect of such appeal must be the same as to both methods of procedure. The authority of Pinckney vs. Henegan, must, therefore, be regarded as embracing the determination ol the present question. The question, whether the proper remedy in the present case is by attachment, was not argued, but will properly arise on the return of the attachment. The rule to show cause will be made absolute. (Signed) A. J. WILLARD, Associate Justice Supreme Court of South Carolina. YALE YALE UNIVERSITY L