Richmond daily Whig. [volume] (Richmond, Va.) 1842-1861, 1857-08-14
nth JUDICIAL ClRCUIT-INPoRTANT DECISION
OF THE ATTORNEY GENERAL.

OF TIE ATTORNEY. GENERAL.
RicHNoSD, August g. 1856.
Sr:-The Secretary OF the Commonw ealth has submit,
ted to me the papers relating the election of Jutr,
the 2Sd ut in the Seventeenth Judicial Crc,t with
request that would give opinion as to the extent
and character OF the vested in the Governor in
| spect to the same
appears by the certGc OF three OF the Sheriff. nj
the counties in the Circuit that Mr Fukerson has beer
elected-the terms of the certificates being
the language Of the return required by the Act of As
sembiy-tSess Acts, 1882; CHI. 6s, ss)
Happears by certificates four OF the Sheriff, of b
counties of the Circuit that Mr. Stras had been ecte,
Judge. The form Of the certificate is the same
There is peculiarly in each OF these certificates
In the body Of each the names OF all the Sher assembled
out, II it intended all should spn-sbov
ing the difference of opinion Of the Sheriff. upon the cues
| ton of return.
The certificate, signed by the four Sheriff. to the cleo
ton OF Mr. Sras, has appended it, the came sheet
paper signed by the same parties that Mr. Fukerson
eected-'f all the polls from Lee county are 20 be
but that thinking that the polls from seven of the ore
o'net" al 'h-' county Isgaiy ceruned that thev
have rejected aud not counted them and tLu,
| the return to Mr.. StTss.
The objection to the poll Of the precincts T. shat
not certified by the Conductor though it is BY the Com
missioners aud those At the Others that tbsv or NJ
Their certified By Conductors nor Commissioner Tno
inspecting the poll books for these precincts find ,b.t
there were Conductors and sworn for each
precinct according TO law that the polls are taken in the
usual iorm under suitable caption and that the CLERK
has sworn appears of record that the polls were fair
y and properly taken according the lists made out
is true, that The law requires the Conductors and
Commissioners certify the Correctness of the po TIL.
must be, as it has BEEN construed as directory
but not essential 10 the validity the poll IL WAS never
designed TO defeat the popular will deficiency in for
maes, which the law Only prescribed tn secu n. ri
aud free expression and however important these NAV
be, It would be INDUSTRIOUS aside the voice of the
people because public officer failed To do hi. dn,v
This would be put the former before the ubstance 10
prefer the shadow to the reality.
am, therefore, decidedly Of opinion that upon the re-
turns OF the Sheriff. with the facts stated by the rs
ty and the poll books themselves there was No cnnd
Tor the returning officers TO declare Mr. Stras elected
Nor was there, IN my opinion any power vested in the
Sheriifs TO reject the po which the Sheriff Of I c.,
ried with him their place OF meeting By c,rrvin b
he recognized them polls which must have been dev
cred to him by the conducting officers at the precucts
See CHI Z, So; CHI. g. SO, Of the Code of Virginia
! Ch1pter s, sections l aud . gives no power 70 the
sheris to decide upoa the validity poll but opIy
power to strike from the polls any uotes stieh s lar H.
reefs 10 Be stricken from tie same This il mover n
Pygs-not to ros;t, the poll The power TO do die on
not only does not include the other bu. would seem "a
exclude 10. ~ "
IL Is true, that il there evidence either on the
lace OF the poll book, aei satisfy the conductpg
officer at the Court House. that 1t is a Doll Iegav
he may disregard IT, but be do so 10 the Absence al
all evidence either adduced or to be obtained thu, 4
L. y
NO Technical! objection will suffice TO protect him from ,hs
censure OF setting aeidc the public will BY his or IN
think therefore, that the sherirs there assembled
could not disregard the polls from tho precincts Of lee
county, because the Sheriff Of that county Authenticated
them, by their production aud he had no sufficient
TO have rejected them.
IL appeared to him. and TO them all that n candidate,
and commissioners were DO their DUTY II "a.
70 De presumed that the sworn duty performed until
tne contrary was shown The oath OF the clerk who re-
corded the votes taken and the certificate Of the Justice "a
the aihdavits Of conductor commissioners and clerk s
aed me strongest evidence that these polls we're legal
though not certified ~ the aw directs %
The facts are agfecd Jy all the Sheriff. that NJ, s,
elected only by rejecting large number Of legal votes
VINO counted, would give the election TO Mr. Pulksr
| con.
snail the Governor commission Mr.. strns9 I am dec
dedy oi the opinion that be not bound 10 do so-,pd
that he has no riyAf 70 do 90.
| Let. He u not bound 70 do 90
The return is not given 70 Mr. s,ras acoording IN Ia
doubt very much Il majority Of the sheriis can 9ive
tne return under the circumstances Of this case 10,
even sney can they have given subject the law up
on the iacs agreed-and Il be taken in tbsi
ana 80 as hlve Indicated the Law against Mr. srsss
| claim 20 the Office. '@'
2od. He has no right 70 commission him
For each circuit Judge shall be sisefed b. N, ro,,,,
m>rs2t Const Of Va, Ar. g. g. Upon the facts Ger
uhed BY the Sheriff favorable % him cannot 5. 80
i'gt ne ha' Sse9 elected BY ne Sofsys Of Ire circuit
Judges shall be Communicated by the C;ove,,o ~
Cont OF va, Act 9, 5. H. Commissions and grants
shall iun IN the name Of the Cornnonwealt and ~ ,,
tel BY NE GogrHor.' 10. Art 5,s7
| ~ tht utifRitou OF OhciIl
commission TO W. Siras would the dele alton bv tb %
monWeath OF Judicial pover him AZ The elect of he 20
ters OF the circuit The commission IL the te.pi "a ,t
eecuon The election is the ground Of the corris.;
HoW Gao ne haye delegation Of Judicial power nom =
ouate whose constitution declares him not entitled ni
% be obtained BY breach Of trust auarded In ber -.
by him Whose alteration alone gives Der cou,mis 10
force aud its validity Us
To the Governor has been entrusted the po-vo, - -.
her commission. In stiestng w. the dutv Il i,,ncs
on bin, 70 see that lie Who claims IL IL entt.4 y,
the Constitution and laws Of the State Ia tbi, -. -
cannot 70 attest; and unless he is conpeled a., ,
the mandate Of che return Of The sheriff, III d;s,.
70 refuse 70 do 20. gives him f1l power 70 iudoe ro ~
Pfopley o. granting The commission 70 him -ho hs, ro
! ceived their return "S ~
Ihe return, when u is certain IL onlv rr;,,, hi,
THIS vas The extent Of the power Of he sbetie -
1892, CO. 80, 7, referring 70 Code Of Vi,g;, ~
., pVnghk power IN the two cases) The 5ove, a.
commission includes The power pass upon ,hs vsd,s
oi eeTiaH return Where u is uncertain and douhi n
includes power 70 decide upon the facts stated n, "a
yucca inresp'ot 70 w. u function conferred nv t6
Con.uiuton not prescribed By Lac not meres ,;g;,,.
Ue.l w obedience 20 The return of the sheriff. IN -
The Govsrnor "StaH take care that the a., - s,I
J"y erccufsd, and shan commission iudqes o., /, b..
supposed mat With the evidence upon the face AZ ~
per on Which the nHcerfaiH return s written tb.t d. -
nave not been faithfully executed and that return 49,
Deen gwen 70 one nat elected under tho ,ons,I,.,i
The 6overnor s bound or would be justified In gr.,i,
commission 10 violation Of Law and Constitotony
10 confirmation Of this view, may adducs the fact