Alexandria gazette. [volume] (Alexandria, D.C.) 1834-1974, 1869-09-04

| the opinion Of Attorney General Hoar received
this morning by Gen. Candy:
| ATTORNEY GENERALS OFFICE,
August IS. 1869
! To the iioa. ,John Il. Rachns, Secretary o
UM. .,
SIR-I have the honor to acknowledge thu
receipt OF your letter of July 9th, 1852 II
which you request my opinion upon so mucf
of the questions submitted in the letter OF tht
Commanding General oil the First Military
District, dated the 10th instant, and accompa
nying papers, copies of which are enclosed, a:
to the legal qualifications of officers to be elect
I'd under the proposed constitution OF the State
Of Virginia, and especially upon the question
whether persons elected to office in such State
under said constitution are required by the
supplemental reconstruction act OF July ~
1861 to take and subscribe to the oath pre-
scrbed or referred to in section OF said ac'
before entering upon the duties OF their respec
tive offices.
The latter question is the only one indicated
with such distinction as to enable me 10 be fully
satisfied with its purpose, and apprehended,
and | therefore con6ne my answer to that.
BY the statute OF April 10, 1869. the register
ed voters of Virginia were authorized to vote
on the question OF the adoption OF a cousttu'
ton for the State, and at the same time to elect
officers under it, subject to the approval OF
Congress. The vote has been taken in pur'
,uance of the provisions OF the act, and the
election held, and some parts Of the constitu-
tion submitted have been adopted by the peo-
pie, and others rejected.
The parts OF the proposed constitution thus
adopted, il they shall be approved by Congress,
will be the constitution of Virginia, under
which all its officers will be required to act, and
The qualifications as well as the duties OF those
Ulcers will be determined by it. When Nir-
gina is restored to its proper relations to the
country as a State OF the Union, its officers and
Legislature will be such as the constitution OF
the State provides, deriving their powers from
hat instrument, and it will clearly not be 10
the power of Congress to impose any require
ment OF additional qualifications upon them
Inherent from those which, under the constitu
tlon OF the United States, may be required in
al the States. II, therefore, any tests were to
C imposed upon members OF tho Legislature,
not provided by the constitution OF Virginia,
IT any restrictions imposed upon the people OF
ne State, in their choice of officers, not recog-
azed by it, and not made applicable under the
esitimate powers of Congress to all the States,
The Legislature and officers would not, in my
opinion, be the Legislature and officers of Vir
GINA under its constitution.
do not see that Congress can undertake to
furnish the State with q suitable Legislature
70 start with or to exercise any control over
its composition, which could not be exercised
over subsequent Legislatures. | am therefore
Of opinion that tho oath prescribed By the sta
tute of 1862. and by the statute OF July l9,
1867, Chapter 80, Section 9, required to be
taken by all persons elected or appointed to
Office in said military district. under any so
called State or municipal authority, is not TO
De required Of the officers of the State of Vir-
ginia, or members OF the Legislature elected
under the new Constitution.
II does not seem to me that the provisions
of this ninth section, which are applicable to
the Government of the State under military
authority were intended to apply to the Legis
lature aud officers under whom tho State IS
to be restored to It's proper relations to the
Union, and by whom the Government OF the
State is to be administered after Its restoration.
This opinion is strongly confirmed by RET
erence to the second section OF the same act,
which authorizes the commander OF any dis
trict named in the act TO suspend or remove
from office or from the performance OF official
pcyers any officer or person holding or exer-
e;sing or prolessiDg to hold or exercise any
under any power, elections or appointment, or
authority derived from or granted by or claim
ed under any so-caIIed State or the govern
ment thereof; and to detail competent officer
or soldier Of the army to perform such duties.
Ii would DC impossible to suppose that Con-
press could intend that Legislature under the
Constitution OF a State could have its members
appointed by detail from soldiers OF the
army. The only reasonable conclusion seems
10 me to be that it was not intended that any
such Legislature should be allowed to exist and
act until reconstruction was completed, except
Tor the limited and qualified purposes requisite
to reconstruction. But, on the other hand, |
fully concur with the view OF the General Com
handing in Virginia, that under the recon
structon acts Of Congress, no officer or legisla
tor is competent, or should be permitted to ex-
erciso any Of the tuntions OF power OF his office
within that State, except so far as these acts
themselves provide, without taking the oath,
which is referred to in the statute OF 1867,
above quoted. The act Of April 10, 1860, re-
auires the Legislature to meet at time which
It designatcs that it is to meet implies, that 1t
is to come together for some purpose.
1t Is required under the previous law TO act
upon the question Of adopting the fifteenth
amendment to tbs Constitution OF the United
States, before the admission Of the State to
representation in Congress. | am Of opinion
therefore that it may come together, organize
and act upon that amendment; but that until
Congress shall have approved the Constitution
and the action under it; aud shall have restored
the State to its proper place 10 the Union by
recognizing its form of government as repuoh
can, and admitting to representation, 'nG 80,
stature IS not entitled, and could not, w,.nou'
Violation OF law. be allowed to transact any
bn.iness pass any act, or resolve, or undertake
to assume any other function Of Legislature,
# the t,st-oath has not been requ red Otis mem
bers, and that no officer elected under the new
constitution can enter upon the duues OF his
office without taking the oath while military
government continues.
Very respectfully,
+. r. HOAR, Attorney General.