The Evansville journal. [volume] (Evansville, Ind.) 1866-1870, 1869-09-06
4 fA4TToRNEY GESEIEAI-'s oEEIcE5,

- LAtEGl 4Et 0G4CAAA LGO4A > VEA4EDt y
/ received this morning By Genera
/ Candy:
ATToRNEY GENERALs OFFICE, p
WASHINGTON ID. c., Aug. ., 1863.
10 Ho7. J. 4. Ra1gIins, Secretaryof War:
SIR:-I have the honor to aoknoWl
edge the receipt Of your letter O
July 9th, 1859. in which you requesf
my opinion upon so much OF th
/ questions submitted IN the letter ol
! the commanding General Of the kirst
| Military District. dated the 10th lust
and The accompanying papers, copies
/ OF which are enclosed, as refers TO
the legal qualifications of officers to
/ be elected under the proposed C0nsti-
4 tuition of the State of Virginia, and
/ especially upon the question whether
tpeisons elected to Office IN such Safe,
under said Constitution, are required
/ by the supplemental reconstruction
act of July 19th, 1867, TO take and
subscribe to the oath prescribed or
referred to in Section ID of said act,
before enterIog upon the duties Of
their respective Offices. The latter
question is the ohlyo one that Indicates
with such distincfness as TO- enable
me to be fully satisfied tbat its pur-
port is apprehended, and [ therefore
confnc my answer to that.
By a statute Of April 10, 1859, the
registered voters Of Virginia were au-
thorized to vote on the question of
the adoption Of a Constitution fer the
State, and at the same time TO elect
officers under ii, subject to he ap-
proval OF Congress. The vote has
been taken In pursuance Of he pro-
visions OF the act, and the election
held, aud some parts of the COnstitu-
4 ton submitted have been adopted by
the people, and others rejected The
parts of the proposed Constitution
thus adopted, if they shall be ap-
proved by Congress, will be the Com.
stitution Of Virginia, under which all
its officers will be required to act, and
the qualifications as well as duties Of
these officers will be determined BY 1t.
When Virginia is restored toits prop
er relation to the country as State
of the Union, its officers and Legisla-
ture will be such as the Constitution
of the State provides, deriving their
powers from this Instrument, and it
will clearly not be in the pow
er OF Congress to- impose any
requirements Of additional qualifca-
tions upon them different from those
which, under the Constitution Of the
United States, may be required in all
the States. IF, therefore, any test
were to be imposed upon the men,
bers Of the Legislature not provided
by the Constitution Of Virginia, or
any restriction imposed upon the peo-
pie Of the State In their choice Of
officers not recognized BY it and not
made applicable under the legitimate
powers Of Congress to all the States,
the Legislature and offices would not,
in my opinion, be the Legislature and
officers of Virginia under its Constitu-
ton. do not see that Congress can
undertake to furnish the State with q
suitable Legislature to start With, or
to exercise any control over its com
position which could not be exercised
over subsequent legislators.
/ am, therefore, of the opinion that
the oath prescribed by the statute of
1862, and by the statute Of July 19,
1867, Chapter 80. Section 80, required
to be taken by all persons elected or
appointed to Office IN the said military
district, under any So called State or
municipal authority, is not 10 be de
priYed of the officers of the State of
Virginia or members elected under
the new Constitution. 1t does not
seem to me that tire provisions Of this
9th section, which arc applioa bic to
the governments of States under mil
itaTy authority, were intended to apply
to the Legislature and officers under
whom the State is to be restored to its
proper relations TO the Union, and by
whom the government Of the State is
to be administered after restoration
This opinion Is strongly confirmed
By reference to second section Of
the Same act, which authorizes the
Commander Of any District named IN
the act, to suspend or remove from
Office or from the performance Of
official powers any officer or person
holding, or exercising, or protesting
to hold or exercise any civil or mill
taTy Office or duty in said District,
under any power, election, appoint
ment or authority derived from or
granted, or claimed, under the so
called State Government thereof and
to detail a compe tent officer or soldier
of the army to perform such duties.
IL Would be impossible to suppose
that Congress could intend that
legislature under the Constitution Of
a State could have its members ap-
pointed by a detail Of soldiers from
the army. The reasonab bic conclusion
seems to me to be that it was not IN
tended any such legislature should he
allowed to exist, and until reconstruc
tion was completed, except for the
limited and qualified purposes re-
quisite to reconstruction But on the
other hand | fully concur with the
view of the General Commanding ia
Virginia that under the Reconstrue-
tion acts of Congress, no officer or
legislator Is competent, or should be
permitted to exercise any functions or
powers of his Office within that State,
except so far SIS these acts them
selves provide without taking the
oath, which is referred to IN the Stat
ute of 1867 above quoted.
The act Of April 10th, 1863, re-
duires the Legislature 10 meet at
time which it designates that it is to
meet, implies that it is 70 come to
gether for some purpose. 1t is re-
Guired under the previous laT to act
upon the question Of adopting the
Fourteenth Amendment to the Con-
stitution Of the United States before
the admi. sion OF the State to repre-
sentation in Congress. l am Of
the opinion, therefore, that it may
come together, organize, and act upon
tie amendment, but until Congress
shall have approved the Constitution
and the action under ii, and shall
have restored the State to its proper
place in the Union by rccugnizirg
its form of government as republican,
and admitting 1t to representation,
the Legislature is not entitled, and
could not, without violation Of the
law, be allowed to transact any bust
ness, pass any act, or resolve or IN.
d.r.n lrn to assume anV nfhc1, lilr,clin,,