The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1869-05-14
removed, in pursuance of such legisla>

ton, is not lawfus
The views which have been just stated
receive strong confirmation from the
action of Congress and of the Execu>
tive Denartment of the Government.
The decision ofthe District Judge, now
under revision, was made in December
1919 and two months afterwards, in
February 1859 Congress adopted Joint
Resolution entitled ''a- Resolution res
specting the provisional Governments
n virginia and Texas" In this reso-
Iution it was provided that persons
"holding office in the provisional Gov
ernments of Virginia and Texas" but
unable to take and subscribe the test
oath prescribed by the act of July 2,
1862, except those relieved from disa.
bility. "be removed therefrom;" but a
provision was added, suspendiDg the
operation of the resolution for thirty
days from its passage. The Joint Res.
olution was passed and received by the
President on the 9Th OF February, and
not having been returned in ten days,
became law without his approval. 1t
cannot be doubted that this Joint Res
olution recognized persons unable to
take the oath required, to which class
belonged all persons within the descrip-
ton OF the third section of the four
tpenth amendment, as holding Office in
Virginia at the date of its passage, and
provided for their removal from Office.
Ii 10 not clear "u0tUGI IL WAS the intent
OF Congress that this removal should
be effected in Virginia by the force of
the Joint Resolution itself, or by the
Commander of the First Military
District. 1t was understood by the
Executive or military authorities
AS directing the removal OF the
persons described, by military order.
The resolution was published by COM
mand of the General of the army for the
Information of all concerned, on the
22d of March, 1869. 1t had been previ-
ously published by direction of the
Commander of the First Military Dis
trIct, accompanied by an order, to take
effect on the 18th of March. 1869. remov-
ing the persons described from Office.
The date at which this order was to
take effect was afterwards changed to
the 21st of March. 1t is plain enough
from this statement that persons hold
ing office in Virginia, and within the
prohibition OF the Fourteenth Amend
ment, were not regarded by Congress, or
by the military authority, in March,
1869, as having been already removed
from office.
1t is unnecessary to discusss here the
question whether the government OF
Virginia, which seems to have been not
provisional, but permanent, when
transferred from Alexandria to Rich
mond, became provisional under the
subsequent legislation of Congress-, or
to express any opinion concerning the
validity of the Joint Resolution, or OF
the proceedings under 1t. The resOlu-
ton and proceedings are referred TO
here only for the purpose of showing
that the amendment had not been re-
garded by Congress or the Executive,
so far as represented by the military
authorities, as etFectinR an immediate
removal of the officers described in the
third section.
After the most careful consideration,
therefore, 1 find myself constrained 10
the conclusion that Hugh w. Shelley
had not been removed from the Office OF
Judge at the same time of the trial and
sentence of the petitioner; and that the
sentence of the Circuit Court OF Rock
bridge county WAS lawful. 1u this view
of the case, it becomes unnecessary to
determine the question relating to the
effect of the sentence of n Judge dc TdctO
exercising the office with the color, but
without the su distance OfriRht. It's prop
'er to say, however: that l should have
no difficulty in sustaining the custody
OF the Sheriff, under the sentence of
court held by such Judge. 1nstrnc-
tive argument and illustration OF this
branch of the case might be derived
from an examination of those povisions
OF the Constitution ordained that no
person shall be II Representative, or
Senator, or President, or Vice Presi-
Oont, unless having CeEluIu DTSSCEIUeu
qualifications. These provisions. as
we'll asthose which ordain that no Sen
ator or Representative shall, during his
term OF service, be appointed to any Of
fee under the United States, under
certain circumstances, and that no per-
son holding any such Office shall,
whi!o holding such office, be mem
Der of either House, operate on the ca
paciGy TO take Office. The election or APP
pointmenu itself is prohibited aud in
validated; and yet no instance is be-
lieved to exist where person has been
actually elected, and has actually
taken tho Office, notwithstanding the
prohibition, and his acts, while eXer.
cisiug his functions, have been. hold
Invalid.
But IL is unnecessary to pursue the
examination. The cases cited by coun-
sci cover the whole ErOnnd, both of
principle and authority This subject
received the consideration of the judges
OF The Supreme Court at the last term
with reference TO this and kindred cases
in this District, aud 1 am authorized to
say that they unanimously concur In
the opinion that person convicted by
II jury[ and sentenced in court held by
q Judge de jdctO, acting under color of
Office, though not de jWre, and ,detnined
in custody in pursuance OF his SEN
tence, cannot be properly discharged
upon hd6euS corpus.
1t follows that the o.der of the Dis.
trlcs Judge must be reversed, and that
the petitioner must be remanded to the
custody of the Sheriff Of Rockbridge
county:
"raylo7 " Skinner, So. Ca. Cos; ct ote V.
Bloom, II Wis. 52l. Ex-rel BAIlou v. BALgs,