The Valley Virginian. [volume] (Staunton, Va.) 1865-1895, 1884-08-07
Opinion of Hon. J. S. Wise.

~eNeN
lature was before him. Wepublish it as
matter of general as well as local interest
although we do not agree with Mr.. Wise a
to Mr.. Edward Echols. The enactmen
he quotes, passed 18th March, 1884, cor
veys to our mind the reverse of the cor
clusion Mr.. Wise reaches. If the languag
OF the statute means anything it is tia
MI Ech0ls is Commonwealth Attorne
for the city of Staunton and not mem
Der of the Legislature. The law Of March
1884 was not in operation December, 1888
when Mr. Eehols took his seat in the Leg
islature, and consequently he did not quail
| ify as a member Of the Legislature unde
it. He did qualify as Commonwealth
Attorney under the law of March. 1854
and that qualification worked |isqualica
tian rs member of the Legislature, mas
| much as one or the other of the Offices tt
which he had been elected by the people
had to be vacated.
Mr.. Wise's opinion is as follows:
OPINION
Edward Echols, Esq, at general election
held in Virginia for members of the Genera
member OF the House of Delegates of Virginia
and qualified and acted rs such, at the session
Is two years. So that he is still member OF
the General Assembly unless some event has
occurred to disqualify him.
On the 18th of March, 1884, the General Assem-.
bly, of Virginia enacted a law (Acts 1888 'Sa p
GID, which among other things provides ENC
person holding the office of Attorney for the
/ commonwealth Il a " nj or
office elective by the people; and if any person
shall be elected to two or more of such offices
qualification in any other and they shall be
fllled as other vacancies" Mr. Echols voted
for this law.
The Legislature adjourned the day OF
ion the 22d day of May, 1881, an election was
held for Attorney for the Commonwealth for
the city of stanton. at which Edward Echols,
Esq, was elected He qualified to said office on
the 9th day of June. 1881 and took and sub
scribed the oath of office prescribed by law,
since which time he has acted as such Attorney
for the Commonwealth.
Both the offices above described are 'telectiye
July Esd, 1854, certain members of the General
Assembly filed with the Governor of Virginia
written requests to convene the General AS
sembly, pursuant to the Constitution. The
number thus filing requests is: In the Senate,
composed of 40 members, 27 Senators; in the
House of Delegates, composed of 100 members,
The language of the Constitution, touching
follows
Art. 5, Sec 6. "The General Assembly shall
meet once in two years. and not oftener, unless
convened by the Governor in the manner pre-
scribed in this Constitution.
Art ~, Sec. 5: He" (the Governor "shall
"take care that the laws be faithfully exc
"cuted and convene the General
Assembly, on application of two-thirds of the
members of both houses thereof or when, in
''his opinion, the interests of the Common
wealth may require 1T"
A statute exists (Code 1873, CHI. IA, S3) which
attempts to prescribe the manner of converting
the General Assembly in extra session. It
seems to be relied upon by the members now
making the call, and is recited by them:
For several reasons regard the Statute
dead letter and 1napplicable.
lSt. Because ii was passed in 1S57-'5S, when
we had another constitution.
I'd. Because under the constitution as it then
existed a maGjorityof the members might call an
extra session, and the Statute, pursuing the
then Constitution, authorizes call by major
ity, whereas under our present Constitution a
call by two thirds is necessary and therein it is
Sd. Because, even if it had been passed since
and conformed to our present Constitution as
to two-thirds calling the session and in other
respects, doubt whether it would be lawful, in
view of the express constitutional declaration
above quoted that when the extra session was
convened con! it should be in the manner pre-
Scibed in this Constitution AS the COnStitIl-
ZION required the manner to be prescribed in
ITSELF and the manner was and is prescribed in
IL IF, no Statute was necessary.
Undoubtedly, Statutes may be in part uncon-
st Jutional, and yet remain in part vital and
operative. Undoubtedly, the Statute last above
quoted is in part unconstitutional in so far as il
prcscribes rule of a majority instead of two
thirds. waive the question as to whether its
other provisions are vital, or whether its pas
sage since our present Constitution would have
been an act ultra vires' in the Legislature, |
because think it unnecessary to consider it at
all IN connection with the matters submitted
to me.
Since the requests of the Senators and Dele
hands of the Governor, Archer Scott, ESQ, a
Delegate, has addressed letter to the Cover !
nor received BY the governor July 26th, 1881,
days ago without proper reflection, he
was induced to sign call for an extra
'swithdraw, and by these presents do withdraw
"Iny signature to said call, and it is my wish
y hat you do not regard my name as affixed to
The above being the law and the facts sub
mltted to me, am asked
First. Has Archer Scott, ESQ.,, Delegate the
right under the circumstances, to withdraw
his request?
Answer unhesitatingly express the opin-
ion that he has such right have been unable |
to procure any authority on the point nor do l
suppose any to exist But by every analogy the |
act of Mr.. Scott is recoverable so long as final
action on the call by the Governor is in obey |
ance. 14
in Legislative bodies any member may with |
final result is announced. If the law had re-
quired Mr.. Scott to communicate his wishes ON
this matter to the speaker of the House or to
another, who, when the sense of any given
number of members had been ascertained, was
required to communicate the fact to the Gov |
ernor. then the question would be different as
to his power to withdraw his assent after such
in termediary had announced the fact to the
Governor But such is, not the case here. l
htl did that the communication being direct with |
the Governor. and the application being per-
sonal, any and every member making the re- |
quest is at perfect liberty to withdraw it until
some action has been taken which prevents the
member and the Governor from being put in |
their original position if the request is with !
drawn. The analogies of law governing revo- !
ca HE not cOOOlad with interest we'll /
as those of Legislative proceedings, sustain this
view, and to hold that the act of request ex-
hauStS the power of a legislator and is irrevO- |
cable is to deny and destroy the continuing
and constant Judgment which he is presumed |
to have and exercise In behalf Of his constitu-
and action than he would have either in his |
own representative body or in his private af- |
fairs, and such position cannot be sustained by |
any good reason
Second. Is Edward Echols. ESQ.,, still a men,
Der of the General Assembly, and if not is the |
being informed of the fact of his |
election and qualification as Commonwealth's |
at liberty to ignore and deny his |
request preferred as o member OF the House of
Delegates. M 5fs4
Answer-The views 1 submit render an an
swer to the first branch only of the enquiry, |
At the April term, 1879, the supreme Court of !
Appeals of Virginia decided a case involving |
the right of A. c. Atkinson to occupy at the |
same time the positions of Commonwealth's |
of Manchester and member of the |
House of Delegates. The case is not reported in |
number of the Virginia Law Journal p 49, AS
the law then stood the Court held that there |
was no incompatibility between the office of
Commonwealth's Attorneyfor cities, and mem !
Der of the House OF Delegates. Under that de- |
csion and in that state OF law several members
of the Legislature who held the office of Com
Attorney continued to hold their
positions. And although the Court declined
to pass on the question OF the incom natibility
the offices of member of the Legislature anu
commemorative Attorney for Circuit Courts,
several members of the, Legislature holding
the doubtful category, notably Senators Riddle
berger and Mr.. II. r. Pollard.
In deciding the Atkinson case the Court of
Appeals took occasion to State the common
law rule governing the case where person
qualities TO two Incompatible offices, and said,
will be that by the acceptance of the office of
Commemorative Attorney, under the election
of May, 1878, the seat in the Legislature would
thereby be vacated. "If two offices,'' says Lord
Mansfield, 'be Incompatible, the acceptance of
the latter is an implied surrender of the for
VS.. Carrigur, Hill Rep. 81. Bunting VS.. Willis,
q Graf. 15i.
Such being the law, and the common law rule
as to which of two incompatible officers is va
Gated by qualifying to both, let us see how far
the act OF March 18th, 1884, affects that decision.
The act undoubtedly makes the office of Com
Attorney what it was not before,
incomp atible with that of member of the Leg
isl ture. Both are offices. Both are elective
by the people," and the statute is plain as the
Ell, .sIish language can make it prohibiting one
pc son from holding both at the same time
Ii the statute had stopped there it would be
equally plain that the common law rule above
quoted would apply, and that Mr.. Echols would
by accepting the office of Commonwealth's At
torney, have forfeited his right to seat in the