The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1878-06-22

CAN a MEMBER OF TIM LEGIsLATuRE De
4 CoMMoSwEar.TH's ATTORNEY p As I'VE
have expressed the opinion chat Judge
Cionton's decision OF the. above question
was wrong, we, at his request, publish bis
opinion: ~
In the matter OF John G. ISobertSon. apply
INC fobe permitted 10 QaaJycs Common
a,s,tueaitils. Attorney.
tasaesri;.s. L, .lssa 20 at rffoGa tie evil
dence submitted that at t1e election Tor
Commonwealth attorney held IN this city
on the Esd tlay OF May last 4. g. Attkisson
received o13 votes. John {. Robertson ISIS
votes. and George K. MaGGn | vote, that a.
c.. Attkisson duly received his certificate Of
election, aud has qualified as such III this
Court on the Gosh day Of May, 1878. the
Court is or opinion thai he is duly elected
and qualified as commonwealth attorney
| for this city; and that John &. Robertson,
not having been so elected, cannot be per-
mitted to qualify as such. II the certificate
| of the clerk OF the House OF Delegates is to
| be received as evidence OF that fact, 1t FUR
ther appears that Mr.. Attkisson is also 4
member Of the House OF Delegates, and it is
commended that, IS slrc. member, he could
not legally be elected commemorative
attorney OF this city. The two provisions
of the Constitution supposed to apply are
as follows: NO city officer shall hold q
seat in the General Assembly. Art. VI,
Sec. 60. .'No person holding a salaried
office under the State government shall be
capable OF being elected 4 member OF either
house OF the General Assembly" Art. v,
See. 5. The Court is OF opinion that the
Commonwealth attorney is not acity Off
Ger, and hence the first provision does not
apply. He is State officer, but receives
no salary from the State, and hence does
not "hOld saiaricA Office under the
State government" Therefore the second
provision does not apply. But there
| is another question which arises just
here: Shall the right of the people to
elect be lightly set aside? l think
not. The sovereign right OF the people
to elect 10 an office whomsoeyer they may
| choose cannot be taken away except by
some clear and unnistakabe provision OF
law to that effect. Whilst it is clearly the
duty OF the courts to interfere and protect
the organic law from violation whenever a
proper case presents itself. yet to Gust from
office enc who has been elected b. the peO-
pie and inGuct another who had not been
elected, unless there be Il clear and un-
equivocal mandate OF the law to that effect,
would DC i IHOnStEOus I)toDOS!liCH anu ut-
tcrly subvcrSvc OF tie principles OF repuE-
lican liberty, the Foundations upon which
our Government is built. But so far from,
there being in this case clear mandate OF
the law, as claimed, it seems TO the Court
that the two provisions quoted iii they
work any disqualification at alp can only
apply to Dir. Attkisson rs member OF
the House OF Delegates. To see that this is
their only meaning it is only necessary to
read them. They do not in terms declare,
and til Y cannot be SO twisted rs to make 4
member or the General Assembly ineligible
to city office o. Saiared State Office. The
disqualification is expressly made to apply
to the other position. Whether the accept
aHce Of this office will work 4 forfeiture
and vacate Mr. Attkisson's seat in the
House Of Delegates ii is not for this Court
to say. by The Constitution each house OF
the General Assembly Is the Judge Of the
election and qualifications OF its own men,
bers, and it would be preSumptioGs il this
Court to attempt tosusIrp those functions.
TO deyiate from the plain path OF duty
which lies straight before us-on the one
hand TO tramp!e upon the rights Of the peo-
pie, or on the other prcsumpt;ousiy to
usurp the undcnicd powers o? the Legisla-
turc-is 4 course to which the courts should
be invited in vain. Leave to be permitted
10 qualify Is refused the petitioner.