The Valley Virginian. [volume] (Staunton, Va.) 1865-1895, 1875-11-25
THE CONTESTED. ELECTION.

THE ATTORNEY GENERAL THINKS THAT MR..
STUART CAN RESIG&-ANOTHER VIEW OF
THE CASE.
On last Thursday morning Hon. A. II. II.
Stuart received from Governor Kemper, to
whom he had sent his resignation, the. follow
ing opinion Of the Attorney General on the
subject!
Hon. A. H. Stuart in a letter to the Gov
ernor, Of the Sth inst, says: Il hereby resign
my seat as one of the delegates from the coun-
ty of Augusta, to which was elected Oh the
I'd inst.,' and Mr.. John N. Opie in a letter
of the same date to the Governor, intimates his
purpose to contest Mr.. Stuart's right to the
seat, ON the ground that he is entitled to it HIM
self, and adds: 81 understand Mr.. Stuart in
tends to resign, and my object is to prevent
the issuance of a new writ of election under
the suppesition that there is no contest. These
questions are suggested: Until the State Board
of Canvassers examine returns and determine
who BY the greatest number of votes is elected,
can it be known whether Mr.. Stuart was elect
| ed or not? And if he be truly elected, can his
resignation be accepted and new election Or
dered in the face of Mr. Opie's claim to be elect
ed by the people? Is not the House of Dele
gates sole judge of that question and can the
| Governor take any action III advance OF the ac-
ton of the House.
Lanswer the first of these question in the
negative. The State Board must, on the certi-
fed abstracts OF the returns OF the election. on
| file in the office of the Secretary OF the Com
monwealth, determine who, by the greatest
number of votes is elected to his seat; and until
that is done, t,can not be known who is elect
ed to it, Code, Chap. s S32.
Upon the second question think, should it
be determined that Mr.. Stuart is entitled to the
Sc at, he may then resign it. The office cannot
be; imposed on him against his WILL nor can he
be- obliged to accept and hold it to afford an OPP
paltunity to Mr.. Opie to show, in contest with
him before the. House of Delegates. that he is
entitled to it. Mr.. Opie cannotforce Mr.. Stuart
to go to law with him about it.. If Mr.. Stuart
may resign, when the return has been awarded
to him, it follows that his resignation should be
accepted; a vacancy will thereby be created,
and if it occur ia the recess Of the General As
scmbly, writ, for new election to fill it, should
be issued by the Governor. Chap. 5S IS.
Upon the third point it is certain that by the
Constitution, ''each House shall Judge of the
| qualification and returns of its members and
its power is plenary to decide in contest be-
fore it for seat, which party claiming has the
better title. But then there must have been
return of member for a seat and a party con-
testing the returned members right to sit; and
then the House judges the return between them.
There must be case made between parties IN
which each is insisting on his right. ANY person
intending to contest the election of another as
a Senator or Delegate to the General Assembly
Ishall within ten days after the election COM
jrnenced, give the other notice." etc. Chap. 8,
81. But as in tie event supposed there will be
no 'sother"-no returns to be Judge, and no
l sitting member with whom q contest can be
waged, do not see how Mr.. Opie can assert
his claim to have ''been elected by the people"
before the House. The House would have no
authority to vote him into seat in thai body
with no case before it presented ia the manner
prescribed by law.
r. 4, DANIEL, Attorney General.
Subsequent to the reception Of the above let
ter, Mr. Stuart received another letter from
Governor Kemper, in which he says: ssThat af-
ter further conference with the Attorney Gen
era and Il careful investigation for himself of
the questions involved, he concluded that it is
his duty to refer all matters connected with Mr..
Stuart's resignation to the House of Delegates,
and not in the meantime to issue writ of cleo
ton and that the Attorney General coneurs in
the proprety of this course.''
In reference to the matter, and the question
involved, we copy the following sensible re-
marks from the Dispatch of the Goth, which
fully agree with the opinion we entertain. The
contest will be made before the Legislature, and
if Mr.. Stuart should be awarded the seat by
that body, he can then resign, but not before.
The Dispatch says:
We imagine the confessed election case in
Augusta county, between Messrs. Stuart and
Opie is by no means decided" The opinion
OF the Attorney general is not such as to settle
the question. That Officeris so we once heard
another prominent member OF the Richmond
bar say, 1.-THE most accomplished lawyer in
Richmond;" yet even he may ''nod'' some
times. His opinion, as stated by our CORES
pondent, is that the case presented by Mr.
StIIart for his Si1prttnu
and therefore II new election must be ordered;
and as Governor Kemper forwarded the opin-
ion we infer tina. he intends to issue q new
detection. Let us look at the case.
The first fact to be remembered is that the
State Constitution makes the House of Dele
gates the sole judge of the 1'eection' of its own
members. That means the Governor cannot
lawfully decide that any candidate is or is not
elected to the House. The could so decide in
the Augusta case, and could in virtue of his own
decision order new election, he could of course
do it i'll any other case. If he cannot make as
Governor such decision which would be bind
ing. no more can he do it as Il member of the
State Board Of Canvassers, nor can that Board
do it. The attempt of Mr.. Stuart to resign does
not change the lawful aspect of the case. He
resigned place which he had not been elect
ed to as the Constitution provides. So Mr..
Daniel decides; and so far he is unquestionably
right. But in adding that Mr.. Stuart could re-
sign after receiving his certificate OF election
from the Board of State Canvassers, and that
the Governor could then order new election,
he erred, if we are not greatly mistaken. In
contemplation of the Constitution, no member
is elected until the House has passed upon his
claim and admitted him to his seat. Again:
The new law provides that contests for mem
bership in the Legislature shall be based upon
the returns of the election officers in the various
counties. Mr.. Ope has followed the law. No
act Of his opponent can dlvest him of his rights.
The State Board Of Canvassers has no power
in the premises. If the forms Of the law are
complied with that Board cannot lawfully give
a certificate to any man not pronounced elected
by the County Canvasser, no matter how good
a case he may have. The House is the sole
4 judge as to whether Mr.. Opie or Mr.. Stuart
was elected, and no other person, whether can
didate or officer can change this fact. Sup
pose, for instance, that Gillian was lawfully
4 elected by five hundred majority iii Prince
u George. though his opponent received the GER
tlfcate OF election. Ii the papers are all found
to be in due form by the Sta.e Board of Can
vassers it can do nothing but grant certificate
Of election to Mr.. Page. Andif Mr.. Page should
thereupon attempt to resign the place, his act
= would not divest Gillian of any of his rights.
The contest would go on; and if the House
found that Gillian had been, duly elected he
would get the sea-. I'VE mention this case by
way OF Illustration; noc ,nrejudge it)
But it will be replied that Nv. i've Governor does
order new elections for members o. the House
Whsn that body is not in session. Unaaues-