The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1869-09-06
THE TEST-OATH.
TEE OPINION OF ATT0REEY-GEN'
ERAL EEGAE.

y
Sir.-I have the honor to acknowledge
the receipt of your letter Of July u, 1909,
in which YOU request my opinion upon
80 much OF the questions submitted IN inc
letter Of the commanding General OF the
First Military. District. dated the 10Th IN
slant. and accompanying papers, copies OF
which arc enclosed, rs refers to the legal
Qualifications Of officers to be elected under
.hc nroroscd constitution Of the State OF
Virrf.li4, and especially upon the question
whether persons elected to Office III such
ct.tc indies said constitution are required
by the supplemental reconstruction act oi
July 10. 1857. to take and subscribe to the
oath prescribed or referred to In section
nine Of said act before entering upon the
duties Of their respective Offices"
The latter question is the only one lndl-
Gated with snch distinctncss NJ to enable me
to re fully satisfied that its purport IS ap-
pretended, and therefore coniinc my an
swcr to that.
By the statute of April 10, 1860, the re-
ristcrcd voters Of Virginia were authorized
10 vote on the question Of the adoption Of
constitution for the State. and ut the same
time to elect officers under it, subject to the
annroval Of Congress. The vote has been
taken in pursuance of the provisions o. the
act and The election held, and some parts
of the constitution submitted have been
adonted by the people, and others rejected
The parts Of the proposed constitution
Illus ad0ntcd. if they shall be approved by
:on~rces. will be the constitution Of Viz
rinia under Which ali It's officers will he re-
1Ilircd to act, and the qualifications as we'll
rs the duties Of those officers will be
determined By Il. When Virginia is re-
stored TO it proper relations to the country
IS State Of the Union, It's officers and
legislature will be sucl. rs the constitution
Of The State provides. deriving their powers
rom that instrument, &nd it will clearly moi
ne in the 1owcr Of Congress to impose any &c
ouircmcn.s Of additional qualifications upon
shcm different from those Which, under the
Constitution Of the United States, may he
required in ell the States. II, therefore;
any tests were 70 he irpo5e9 upon members
Of the Legislature not provided b. the con-
stisution Of Firnina, or any restriction i'm
noscl upon The people Of the State in their
choice oG officers MT rcccrrizcl by it. end
not made applicable under the legitimate
powers Of Congress To al tic States. ;hc
legislature aud officers would not, in Iay
9rinion. lie the Legislature and officers @!
VIRGINIA under is constitution. ! do
not see that Congress can undertake to fur
nish the State with Il suitable Legislature
10 start with, or 70 exercise any control
over lis conyosi!i0n which could not lie cX-
crcisej over subsequent Legislatures. /
am therefore Of opinion that the oath pre-
acrilcd hr Tie statute q 1852, and hy the
statute d Julv - 1867, chapter 50, sec
ion 9, required to he taken ny al persons
" c,cc.c,t or appointed to Office in said mill
tnrr districts. under any so-callcd State or
municipal authority" IS not 10 be required
= the officers Of the State Of Virginia or
members O. the Legislature elected under
its new constitution.
Il does not seem to me that The provisions
Of this ninth section. which arc applicable
20 Tie government Of Tie state under mill
:arv authority. were intended 10 applT t.
TIC LEGISLATURE ana officers. under whom
thc state is to lie restored to lis proper re-
lat;ons 10 the Union. and hy whom thc GOV
cInrncnt Of tho State Is to be administered
afterits res t0ration. This opinion IS strongly
confirmed by reference 10 nc second sec
ion of tAc same Act, which authorizes tic
commander of any district named III TIC act
to susnend or remove from Office, Or from
thc performance o. Official duties aad tie
exercise Of official powers, any officer Or
rcrScn holding or exercising, or processing
to hold CT exercise, any civil Or military
Office or duty in said district Under any
power, election. appointment, or authority,
derived from, u, granted by. Or clarinet VII
De-, any so-callcd STATE or the government
thetcof," and 10 detail y competent officer
or soldier 0G The army 10 perform such Gu
lies. i would be Impossible 30 suppose
that CONGRESS c0ull intend that a Lcgise-
lure under tie constitution Of q State could
have its members appointed b. It detail
from soldiers Of the army. The only rca-
s0nablc conclusion seems to me 20 hc that
il was moi intended THAI any such IcGiala-
lure should be allowed TO exist and act
until reconstruction was completed, except
Tor tic limited and qualified purposes &c
QuisiIe 10 reconstruction.
But, on the other hand, fully concur
with the view Of the General commanding
in Vir-ina that under the reconstruction
acts Of Congress 10 officer or legislator is
competent or should be permitted to ever
else any OF tie functions or powers Of his
Office within that State. except 80 Tar as
those ac;s themselves provide, without
taking the oath which is referred to in the
statute Of 1867, above quoted. The act OF
April 10, 1859, requires the Legislature 10
meet 1T Il time which it dcsignatcs. That
ii is to meet implies that it is TO come to
gcther for some purpose. Ii Is required
under the previous law to act upon the
question Of adopting the fifteenth amend
mcnt to the Constitution OF the United
States before the admission OF the STATE
to representation in Congress. | am o.
opinion, therefore, chat it may come to-
gcthcr, organize, and &C, upon the amend
mcnG, bu; that until Congress shall have
approved the Constitution and the action
under il, and shall have restored the State
to lis proper place in the Union By rcc0g
niZing It's form Of government as republic
eau, and admitting ii to representation, the
Legislature is not entitled, and could nO:,
without violation Of law, be allowed 10 ira rs
act any business, pass any act or resolve, or
undertake toassumc any other function OF Z
Legislature, il the teat-oath has not been
required OF lis members and that no
officer elected under the new Constitution
can enter upon the duties Of his Office,
without taking the oath, while military
government continues.
Very respectfully,
[Signcdl L. r. HoAF,
A:togney-Gcncrul.
4 true copy
[Sigucd) Z. D. Totrnscn3 Adjutant-Gcn.
44jGtoDt- Ge"cr0FS C3tce, Sept. 3, 1869.