The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1875-11-20
opinion OF tEae At.orney-Generai.


Mr.. sTUART's RESIGNATION TAKES EFfEcT 'WHEt'
the STATE oAAvAsssRs GIVE HIM A oERTlFi'
CATs--A NEW ELEcLloH TO BE ORDERED.
On yesterday morning bon. A. 81. Il.
Stuart received from Governor Kemper, to
whom he had sent his resignation, the fol.
lowing opinion OF the Attorney General on
the question: 5issaa rs
Hon. A. II. III. Stuart 10 q letter to the
Governor of the 9Th instant, says: 81 here
BY resign my seat as one OF the delegates
from the county Of Augusta, to- which was
elected on the I'd instant" and MIR. D. N.
Opie II, letter OF the same date to the Gov
ernor inti.nates his purpose to contest DE.
Stuari's right to the seat, on the ground that
he is entitled to II himself, and adds /" l
understand Mr. Stuart intends to resign, ana
my o. jeet is 70 prevent tho issuance Of new
writ OF election under the suppositlon that
there is no contest" These questions are
suggested. Until the State Board OF Can
yassers examine returns and determines VINO,
by the greatest number Of votes, Is elecoeo,
can il DE known, whether MIR. Stuart was
elected or not and II he be truly found 70
be elected, can his resignation De acceptsa
and a new election ordered in the lace OF
Mr.. Opie's claim to be elected by the people /!
Is not the House Of Delegates sole Judge OF
that question and can the Governor take any
action in ad vance of the action OF the House RI
answer the first of these Questions In the
negative. The State Board must, on the
certified abstracts Of The returns of the cleo.
ton on file in the Office Of the Secretary OF
the Commonwealth. determine. who, by the
greatest number of votes, is elected to bis
seat: asG until that is done it cannot De
known who is elected to it. (Code, chapters,
section 3d..
Upon the second question think should
Il be determined that Mr.. Stuart is entitled
to the seat be 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 opportunity to Mr.. Opie to
show. in a cnntest with him before the
House of Delegates, that he is entitled to it.
Mr.. Opie cannot force Mr. Stuart to 60 to
law with him about it. Ii Mr.. Stuart may
resign when the return has been awarded 10
him Il follows that his resignation should
be accepted; vacancy will thereby be crf-
ated. and il it occur In the recess OF the Gen.
eral Assembly writ for new election TO
fill il should be issued by the Governor.
{ Chapter 5, section 49, .,
Upon the third point it is certain that by
the Constitution each house shall Judge OF
the qualification and returns OF its mem.
bers," and its power is pleDary to decide 10
contest before it fer seat which party
claiming has the better title. But, then,
there must have been return of q member
for the seat, and q party contesting the re-
turned 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 senator or delegate 10 the Gen.
eral Assembly shall, within ten days after the
election commenced, give the other notice."
&c. (Chapter 8, section ~ But as In the
event supposed there will be no other"
no returns to be judged, and no sitting mem
Der vito whom contest can be waged, DO
not see how Mr.. Opie can assert his claim to
have g been elected By the people" before
the House. The House would have no an.
thority to vote him into seat in that body
with no case before it presented in the man.
ner prescribed by law.
r. T. DANIEL, Attorney General.
We give from the Staunton Vindicator
Mr.. DANIELS letter (ailuded to elsewhere).
LIST. Mir. STUART can resign only for him.
self, and only what right be has. He cannot
resign for Mr.. OPg. So a vacancy cannot be
created by MIR. STUART's act. ~ j
I'd. There sDiH be return exactly the
same as if Mr.. STUART did not resign, or had
not resigned. That is, the Board of State
Canvassers will certify Mr.. SrUART's cleo
ton; and this being certified, MT. OrEE cor.
tests the seat Of the man thus certified to
have been elected.