State ex rel. Neely v. Wadkins , 30 S.C.L. 42 ( 1844 )

Curia, ‘per

O’Neall, J.

In this case the court is satisfied with the decision of the Judge below. It is perhaps however necessary to add to the remarks of the Judge below, that by the 5th section of the Act of ’94, 8th Stat. at Large, 486, it is expressly provided “that in case of any contested election, the validity of the same (in the election of field officers,) shall be referred to the Brigadier General of the Brigade, who shall call to his assistance two field officers of some other regiments of his brigade; and in the election of Captains, Lieutenants and Ensigns, shall be referred to the field officers of the Regiment to .which they belong.” From this provision, it appears that the field officers constitute the- court of Inquiry alluded to in the opinion below, having full and final cognizance of the matter, whether a Captain’s commission is properly filled or not.

If the relator has any remedy, it is by applying to the Colonel of the Regiment, to enquire whether Captain Wadkins is rightly in commission or not. On such application he may call his Lieut. Colonel and Major to his aid, and if they should think and decide that he was not elected properly, they may yet order an election. But it is very clear this court has nothing to do with the matter.

The motion is dismissed.

Evans, Butler, Wardlaw and Frost, JJ. concurred.