Richmond enquirer. [volume] (Richmond, Va.) 1815-1867, 1857-08-14

presetd ny Tue ATTORNEY i-Ile;hi, ~ Is NV
and will no doubt attract attention. We!7uht IL" Tie
iecison in Accordance will, justice and the law n
sill b- promptly acqriesced in.
RICHMOND, August =, 1871
.Sn The Secretary o! the Commonwealth mas eue
nitted 10 Tic tho papers relating 10 the election W
lucy- on the III ut. in the Seventeenth Jun'c'a'
Cucuit with request that would give an opinion
10 III" -xfent and character of the powers fe7'eu
in the Governor in respect to the same. -,
II sppe srs by the certificate of hrr' OF the S1ei'a
If tn- cuu.us Ia the Circuit. that Mr.. fuhtfs"
has been rl.rted- the terms IF the certificate he's
substantially IN the language Ut herrnrn requiem ny
h- Act # A-sernhly-tS-s. Acrs 1857; cb. ~. W.,
1t app.arS by the Certificate of tOrr III the Shefh'
=, The counties of the Circuit. that Mr.. Stras has
been elected Judge. The form OF III. certificate L.
the same. -.
There is one peculiarly in each Of ihese cer;,h
natea. In the body Of eac the names oi all lh1
Sh-ritls assembled are stt out IL it were intended
al should signshowing the difference Of opinion "f
.hr Sherfs upon the Question OF retHrn.
The certificate signed, by the four Sheriff., TO the
.lrciion of Mr.. Stras, has appended 10 it, on the
-sme sheet, paper signed by the same parties ma
Mr. Fulkerson is elected-if all the polls from Lee
comfy nr- To be conned-but that thinking that the
polls from seven oil the precincts OF that county, are
NOT legally certified, they have rejected and not count
ed them, and thus have given tho return TO Mr. Stras
The objection Ia tne poll at one OF The precincts IL,
by the Commissioners; and to thoss at the Others,
,het they are neither certified by Conductors Com
nissionrrs Upon inspecting the poll books for these
precincts find that there We're Conductors and Com
mssioners sworn for each precinct, according TO a"
that the polls taken in the usual FORM under
suitable caption; and thai The clerk has sworn, tas
appears of record) that The polls fairly and pro
perry taken according to the lsts made out.
II il true, that the law requires the Conductors and
Commissioners 10 Certify the correctness Of the poll
This must be- il haa been, construed dIrec
tory but not essential to tn, validity Of the pull II
was never designed Ia delent ihe popular will by II
deficiency IN turms!ities which the law only pre-
scribed secure lis full and free expression; aud
however important these msy b., i, would be- mon.
strOus 10 act aside the Voice Of the people because
public officer failed 10 d. his duty. This would be
10 put the form before the substance, 10 prefer the
shadow tn the reality.
an, therefore, decidedly Of opinion, that upon
the returns Of the SberlTs, with the facts stated by
The majority and the pc books themselves, there
was no ground for the returning officers to decIare
Mr. St.ae elected.
Nor was there, in NY opinion, my power vested
in III. Sherifls 20 ject the polls. which the SherG :"
Ire carried with him 10 their place Of meeting. BY
curryn, le,n lie recognized them ~ polls wh,ci
nusi have bsen delivered 10 him by III, conducting
officers n, The precinc;s See chi 80 CHI s, 90, o.
Code Of Virginia.
Cnapter ), section and gives 80 power to tie
Snerfs 20 cec:d- upon tho validity oil pol, bu;
lu o.
liz directs 10 b. s:rlcasn hos. :7s It's Is
mower to sarre-not 70 r.. CO, tho poll. Taa power
10 do the one, not only does not include lie ohe! bit
would seem 20 exclude II.
IL ,rua that if there were no evidence, either
the face of the pobooi:. or 0e@fs, 10 satrfy the
conducting officer al the Court Hou.e, that i: pol!
legally TAKEN be may srega!d II, out hu do sc
in the absence of all -v:drnce either aaGuGed or 10
be obtained that il formed part OF The expression
o. the vii! of the electors. No 'sca'.ca objection
will sufrce protect him from The censu!e Uf setting
aside the public will by his own PAT.
think therefore. that the eheriiS here assembled
could not disregard the polls from the precincts Of
Lee county, bec.us, the Sheriff Of ;ba: county gu
thencsted iheI2. by their prdduaton, aud Ne lad DC
sufficient ground TO haze rejected them.
II appeared to him, and 10 ;heIn oil, that conduc
,or AID commissioners were sworn 10 do tn-r duty
Il sc 70 be presumed that the sworn duty was per
formed LII rss contrary was shown: fhs oaIh o.
the clorE Ulo .es5.dec the votes TAKEN that they
we're regularly taLst, a The certificate ol the jus
ticc 70 lie hlijavs VI cGn12Stor, commissioners
and clerk ltCrdsI the strongest eTla&Gcs n these
polls were legal, tLouzii not Certified u 10 lev 81
reefs.
The facts are agreed by all the sheTiGs, tIlDt Mr.
Stras is elected only by rejecting large number at
legal voters, who, Il couuiod, Wooia give Tue eecuo
t. .ir. Eu!kersou.
Shaulhe \ ove-nor commission Mr.. S:vs'7 am
decidedly OF the opiaiSu .rt h. is not bonn" - do so
-a;Id ,ha, he has nc rig..'tu 20 =.
let, He is not bound TO DO &C.
Tine return il MT given to Mr.. Stra. GccjruiL. ~
law doubt very l,,uel il u majority of be Sher-
ills can give the re.urn. under The CIRCUMSTANCES "t
this case But even il ihay cau hry ha'; g,9ei II
subject 10 the law upon the facts agreed-hl Il must
te taken la that way-nnd If 30, rs have i,dicated,
thr aw IL GZa:n,t MT, Stras claim 10 ths nee.
2ud Hs bias 60 rig..t = commission h1. "FoE
each cirea;i Iddg, SHE'LL DO ttct.cd 2 - ro'crS
thrrroC" Const. .f w, ART &, IS. ppoGthe in2:s
certified by tie Sb-rlds ravornnt y him. 1t annot o.
said Ihat he has been clectcd by the ro'es tie c'
cunt. =,
Judges shall be commissioned by the G vernon"
Const Of "a, Art. &. :. l.! commissions aid grants
shall ran "a tic nalrG Of The CuLu.nn.,h,g. aud be
athsted by Tie Goramo;:' Id. ri: -, :! =
A commission. is the delegation ofu9cia'rusi. =
commission To Mr. SIra. would 6a ls!e Delegation ny
the Commonwealth Of Juiicia power, 10 llh ca lsIe
eject % the voters Of Tie circuit Tue c'nm'ssion
!, Inc ,esrls O, ikc election. The o!-c'il is tue
ground of the cor.misaic.. ifc% can he ha'a dele
gnion OF Judicial power irotl a S.n' :."- eah=tl'
Iut;ou declares him not entitled un.e's pc CD.
iain.d Ev l:e.eb Of trust, awarded i'll her t,m", b.
him whose atilstGt.1n along gives her coian'ssloh
its force aud its validity
10 the Governor las been entrusted ito r;ger to
grant her eulnni.s1n. in G!:estinc it, the tuly IL
imposed upon him, 10 see. that e who clalni II, Is
entitled 10 il under The Constitution and GSa OF the
State In this case he cannot 40 Attest aud rnsess
Es ia coruueri 10 execute the mandate OF tLereturn
of e.. sheriff.. The discretion to refuse Ia dnsA gives
him !u power 10 Gdga EpuG lie proprleiy o. grai''
ing Tue commiss!oh 10 hun - mas ie;slTed tier rr
turn.
The return wI:an i Is CERTAIN, is only pf'Md lIc.
This was the extent tho power Of the sheriff.
1852 Oh. SO, u ~ Referring 10 t0aS o! virginia.
ch. 8, giving like power in tho tTorasesj ia'PHH
cr 10 commission, includes the power TO pass upo"
ina validity of q rfri0ia return. Where il Is 'ncer
tain and double 4 includes power to decldeupon
The Gtts stated, or aGu-c.t. III respect 10 II. ~
function conferred by the Consult Gio, not presciDe"
by law; not merely Ministerial, iu Cbeclenoi - Tie
return uf the sheriiis m pas.
IN. Governor ssh0H iLkc rare that the ii'' be
Eaiihfufly r. rca!I" and shall commission judges
Can it DO supposed iii, :t the evidence up"l ~"
fscp oe the pappr on which tho .Ecl5'H returl u
vr;tt.n that the laws have no. been faithfully ~
cutrd n,,a t.,st return has been given 10 ore 20
elected Under lie Constitution the G"vori"r t.
bound or would be Jus'b-d -: areiitiig Il coitl''
zion In violation VI law and Consl,t Ciiohi
In confirmation of this yiew, MAJ aGduss Tue
fact that while The Constitution provides Ter ON
tested election In the gNso nI aaovgrDor IL mas; u"
provision for any other case. wie il BiVss u ai''
the power and imposes the duty Of granting Gdli"is
sions to all Other officers. And, moreover, while he
lay r,yoy:dss for a contested election in case OF Is
lice 'GErri ErJ ccsaaLle before II Court there If u"
provision for tcntOs &c s.@:n AZ ID Inc ono VI
edge. Can these omissions i; tts UcH-.!"ton On"
laws he Otherwise explained, t.aE " t.'.ioa"r ~
the fran.,. of both IN uentioI to give to the G yer
TO commission The fi.nc;i08 oi Supervising anf "
Gliding in connection with tie eSorn ditis - iaA'
care OF The faithful execution Of tba 's~; enc 10 Ssp
port the Constitution
II this construction Us not given, then it resn,s
a. u respect TO The important Office OF lndg', NE
Gcverco j. .uund 10 obey The return Of tIe sheFlIs'
made at the iuio.;;al and hurried meeting The law
prescrbes though tue COST. ies!ou he grsult Is to
person never elected under Tue sew era holding 'h1
oihce asaos, the authority Of The Constitution ga
IL Is1y Egohc If.
lLin., ;he etcre, the Governor is not 6ound' nef
Las r:sh, 10 grlrt ,;oT, mission to Mr.. Stras.
But can he commission Tr. n!se-sonI or order
new eIectiopi
Ii there ha4 been an election BY the voter. Ct Ice
Circuit the person elected hes right under the Lon
s,ution to the commiason, and they have right 10
ban ns their judge. The Governor cGnaot SET aside
valid election nor take away Judicial Office i'Gn
one cou.titutioDally elected, aud theu make PEocis
manoc fer new election.
II upoa tue -cofs as 10 the rejected polls in Lee
county. either by certificates Of the commissioner
Conductors or others, the GGyefao- SHAH Do satisfied
or without further proof: IS eatst-d "-. those pcis
represent: part OF tho legally expressed Teiee o. Tue
voters CT the Circuit, then, upor the aEeed 'scss e