The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1875-11-27
The Augusta Contest.

The Augusta Contest.
The following opinion we give TO our
readers despite the fact that the Attorney
General has recousidered his frst opinion:
PATRICK COURTHOUSE, VA.,l
November %, 1875. )
! Es;tors Dispntch: Io your issue Of the
| 2O;h I have read an opinion OF the Attorney
General and your editorial in reference to
the resignation Of Mr.. Stuart and the con-
templated contest OF Mr.. Opie to seat in
The House Of Delegates. Permit me to differ
with you and the Attorney-G General. The
questions propounded by the latter officer
are as follows:
1st. Until the State Board of Canyassers
examine returns and determine who, by the
greatest number of votes, is elected, can it be
known whether Mr. Stuart was elected or
not!
I'd. Aud if he be truly found to be elected,
can bis resignation be accepted and new
election ordered in the face Of Mr.. Opie's
claim to be elected by the people2
81. l. not the House Of Delegates the sole
Judge of that question:? And can the Gov
ernor take any action in advance of the ac-
ton of the House?
agree with the Attorney General that the
proper answer to the first question is in the
negative. Under the state OF facts supposed
in the second question he could certainly re-
sign in the face of Mr.. Opie's contemplated
contest, but his resignation would not effect
in the smallest degree Mr.. Opie's rights In
the premises.
So soon as the new election should be or
dered and held to fill the vacancy DIR. Opie
would proceed to contest the right of the
ne Wly.elec.ed member, whoever he might be,
and thus place his rights under the first elec.
ton in "contest" with the rights Of the
member claiming under the second election,
so that case would at once be made for the
House to pass upon. II it should be found
that Mr.. Opie was duly elected the resigna.
ton OF MIR. Stuart and all of its consequences
would be q nullity, and would be declared
void. 1t is true Mr. Op!e could not compel
Mr.. Stuart to submit to contest or stand
lawsuit, and there can be no necessity for 1t.
Tue Attorney General says without this there
could be no mode Of passing on the rights
of Mr.. Opie, as there would be no "other
on whom the notice could be served. Adopt
Ing the above view, there would be the
"other party-to wit, the party elected at
the second election. The ten days notice re-
quired by the statute could be compiled with
by giving the notice to the party returned
at the second election within ten days after
that election. Observe the language Of the
statute: "Any person intending to contest
the election of smother as senator or dele
gate to the General Assembly shall
within ten days after the election com.
menced give s1e other notice." &c.
The election here referred to would
be clearly the election under which
the sitting member claimed. Ordinarily,
both parties claim under the same election,
but there might be other instances like the
one under consideration, when the question
would be, il the parties claimed to be elected
at different times, for the House to determine
the rights Of the parties under the respective
elections. Again. to show more clearly on
whom the notice should be served, let us see
who would be usurping Mr.. Opie's rights Of
he has any. Not Mr. Stuart-he is in 20
mans seat-but the person elected at the
second or special election. The notice Is
intended TO give information to the party in
possession Of an Office that some other party
claims it, and the limitation would run from
the date at which the party in possession set
up his adverse claim, and not from the date
on which the contestants rights accrued.
This is, of course, not Intended to PREJUDICE
the case, but merely to indicate the mode in
which the contest should be carried on.
Respectfully, J. E. PENN.
Mr.. Penn, whose name we take the liberty
Of appending to his article, has had expert.
ence as chairman Of the Senate Committee
on Elections. He does not differ with US in
opinion as to any read point in the case. He
simply goes further, and shows how the con-
test could be maintained against a person
elected at new election. All this was i'm.
piled in our argument. We said in 50 many
words:
"1st. Mr.. Stuart can resign only for him.
self, and only what right he has. He cannot
resign for Mr.. Opie. So vacancy cannot be
created by Mr.. Stuart's act.
"2d. There ,oM be q return exactly the
same as If Mr.. Stuart did not resign or had
not resigned-tbat is, the Board Of State
Canyassers will certify Mr.. Stuarps election;
and this being certified, Mr.. Opie contests
the seat of the man thus certified to have
| been elected.
"Mr. Stuart cannot resign seat in the
| House until it has been assigned to him by
that body"
Mr.. Penn does not differ with US unless be
means to say that the Governor has the right
to accept Mr. stuarps resignation and to
order new election. II he means to say
this, we shall have to charge bin with
"noddipg." The Governor of course has
the power, but he has not the right.