The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1857-08-13
DAILY DISPATCH.
Judge for TIL, Seventeenth circuit.
THURSDAy MORNING. -. .ArGIisr !. ,a.:

INC io"o"ing opinion Of the Attorney General
wiz po interesting. not only to the Judicial Circut
10 "hich It's applicable, but to the whole STATE -
'Ae Governor decision coinciies with the oni,io,
'AP'tssod by the Attorney General II ,ov.I
'"'e ahd VIII no doubt attract attention We
'oaDt not TIA" decision is in accordance with ina
ice and The law, and will be promptly aconie.-
lU4 !a.-Eisqs strcg
g. ~ RICHMOND. August 3 IS57
Htf: Tho Secretary Of the Common wealth Ia,
SUBMITTED to me the papers relating to the election
q; "a "1IGe on the I'D uit in the Seventeenth .Ju-
diI'"i tticAit with request that would give an
"pin'o" 10 to the extent and character Of the now
ga NO~Ncu III the LoVsrnor in respect TO the same
1t appears by the certificate of Ure, of the SLpr
'' u 'Ho counties In the Circuit that Mr. FuIkeg-
so'4 las Loen elected-the terms of the certificate
poi1y Substantially IN the language of the return
10. 81 Ny the Act of Asscmbly1Se Acts, 1852:
., 1t 1ppears, by the Certifcation of four of the
SLei1'lS Of the counties of the Circuit, thar MIR
St!As las been elected Judge The forr nf tba
ga til.cato is the same.
mere Is one popularity in each of these certif
"a sateS. III the body of each the names of all the
Suviiils assembled set out az if il wero int.rd
80 All should sign-showng the difference. of ori,,-
''o VI tue eherlns upon the question of return
:, iu9 " tlhctle signed by the four Sherifs to
.no tieotion OF Mr. >tras, has appended To il on
tto same sheet, paper signed by the ssn,n rortis
that Mr.. Rulkersou is elected-if ali tL ~ go
Lve county are 10 he countcd-but that. tbinking
that the polls from seven of tho nrct 30 NJ tile
county, are not legally certi6sd iho, VI .h"'
od and not counted them snd IL, i"'e reject
return to Mr. Stras o'''ii tut
n" objection TO the poll at one OF the nre.inctz
~ thtt II !" not certified by the Conductor tLourb
!" oS the commissioners; and TO those at the
others, that they neither certified bv C",,,c-
tors or Commissioners Upon inspectiny tha ,,au
BOOKS Tor these precincts | find that +ior, -
t"l' Hhu commissioners sworn for each pre-
cihct according 10 law; that the polls are taken in
tle hsnAl form, under suitable cautiop. .ud 49,
the clerk has sworn. fss appears of record thot
tue polls were fairly aud properly taken accnrdim
10 the lst7 made out.
II Is true, that that the law requires the Coudnc-
tors ana commissioners TO certify the correctrr..
"i the poll This must be. IA it has ever has,
as directory, but not essential to the va
iul'9 vi tho poll IL was never designed to defra.
% ,ue p"pu'|t VIII by deficiency i'll formalities
"hich the law only prescribed to secure its mi
rec APIessoA: ana however important these NAV
be- 1t would be monstrous to set aside tho vnica -
tht people, because public officer failed to do hi.
i "o.lii oe 10 put the form before the
substance, to prefer the shadow TO the reality.
am therefore, decidedly of opinion that upon
'e returns o the SherItfs with the facts stated by
the majority and the poll books themselves there
was no ground lor the returning officers to declare
VII S'r"S erected
III the Sheris 10 reject the polls which the Sheriff
OF Lee carried with HIM to their place Of meeting
By carrying them he recognized them as polIs
winch must have been delivered to him by the con
Quoting officers at the precincts. See ch ~. ch
:, D. OF Code Of Virginia
Chapter :, section ! and gives no power to tbe
Sherins to decide upon the validity of poll. but
only power to strt@s from TIE olis am rot, icbcl
"'f Ed'o d"ef" I" bs HrfrasH from the Sum> This is
power u pHFge-not to rt}cct, the poll. The now
ct to do the ono not only does not include tie 9th
cr, but would seem to exclude it,
1t IL true, that if there were no evidence either
on the lac" OF The poil-bo"k, or oitsdr to satisfy
the conducting officer al the Court House that it is
poll, legally taken he may disregard it, hut he nsr
do 50 in the absence of all evidence either adlmcnd
or to be obtained, that it formed part of the ex
preston OF the will of the electors. No i,cAatcol
objection will suffice To project him from, tbr con
sure OF setting aside the public will by his own nat
think, therefore, that the sheriff. thor. 49,,
bled could not dirresard the polls from the pre-
clncts of Lee county, because the Sheriff of that
county authenticated them, by their produrtinn
hnd ne had no sufficient ground to have rejected
them.
II appeared to him and to them all that a con
ducsor ana commissioners were sworn to do their
dHty' II WAS to b" presumed that the sworn duty
was performed until the contrary was show,.
The oath Of the clerk, who recorded the votes IA
Ken, that they were regularly taken, and the c4r.
tifcatc OF the Justice. to the afdavits of coudu(
tor, commissioners and clerk, afforded the strong
est evidence that these polls were legal thouoh not
certified n the law directs.
The facts are agreed by all the shefiff. that Mr..
etraS Is elected only by rejecting large number of
legal voters who, II counted, would give the cIer-
ton to Mr. tulkerson.
Shall I'll" uoVernor commission Mr.. Stras? am
decidedly Of the opinion that he is not bo,pd to do
so-and that lie has no rtgit TO do 80.
lst. lie Is not bound To do 30.
lhe return Is not given to Mr. Stras. according to
law doubt very much If majority of the She
riffs can give the return, under the circumstances
of this case. But even il they they have given
1t, subject 10 the law upon the facts agreed--and
II must be taken III that way-and if 50, a. have
Indicated, the law IL against Mr.. StraS' claim TO
the Office.
I'd. lie has no right TO commission him. "For
rach circuit Judge shall be ciects8 by the rioters
hfFe?f, Const OF Va, Art. 81 q. Upon the facts
certhed by the SheriftS favorable to him, 1t cunot
t> sdd U1t nc has been ccced 6y the r0tcrS Of tn, ca
cmt.
judges shall be conmiSS'oned by the Governor"
Cohht' ol "a, Afto, ii. 'Commssions and grants
snail run IN the name ot the Commonwealth, and
0c dtlcSted ty tie t"tfTi'Or.' Id. Art. l. Z.
commission, - the delegation of official trust
commission 10 hr StTa5 would be the delegation
by the commonwealth OF Judicial power, to him
as the elect OF the voters OF the circuit The COM
mission Is the result ol the election The election
Is the Srouhd oi tie commission. How can
nave delegation ol judicial power from State
whose constitution ueCIareS nm not entitled un-
,eas II DC ootaiheu ny pItach oI trust awarded III
nel KANT .! MN whose "tt"statioh alone gives her
ooalini9sloh Oh It's loree "nu 'aildlty'
10 me "o'eInoI MAS pteh entrusted the power To
sl'it St toiIo9ol' III Ht'eStlh9 IT, Inc duty Is
iipoSea upon ni, 10 SEE 'n;'t ne VINO cialms ts
cnt'e' u - uel tio utlol ana laws OF the
5iS t''e Nc I'uiIIt 10 "tt5S.' ana unless
NC 10 ~ tnc h"hute ol the re-
turn 1i 'e tn' 70 reiuse TO DO So
s. ~ I"t' p0".l " J""se up"h lhe fATpIiet!
VI k'ntins ,t ti.e vo'l'i'Sion u MN VINO mas re-
eeareu an ~ lotUin ..
This wa. the EXTENT Of the no,rcr of ~ .har;gs
IArTs IS52, cb o571S. REFERRING r. Coie af Vir.
ginis ch & yiviugIiks nower in tSa t,yl, rasns -
The never 70 cnnmission inclnd,s tL. no,y.r n
ar, ,In,n tba vslidt, Of :, csrt,in rstnr,, W.
:, - n,ic.r,ain and drnhtf,I II incInda. po,.nr -
I'D mo-" tb f.rtsstatad mr. .ddnrad T., rasnott ~
" =, i r,ti', onfrrad h tb C.,I,t;
NOT prascribed nv law nor merely Dti,ist,1I in oha
dirnc. to the return of the sherifs in p1i,
The (iovarnor sEalitrL care at he if,c. be fr;I
III 80