The times dispatch. [volume] (Richmond, Va.) 1903-1914, 1906-07-31
PLAINTIFFS b RIEF.
Full Statement Of the Case IN Be
half Of Colonel Buttoti.i a

= r.. 4 40
IS half Of Colonel Button.
Sf The brief Of tho plaintiff Is here given
{ In full: !, Y, (, Il . \. 4. Y, |, Il, 4.
II dofenunnt refused e to administer on tbs
a and approve Of or u ccept the DOnu tens
dsfcd ~ the plaintiff necessary to his n
qualification coinmssioner q in sin,,
Office lie had been duly elected and com,
a. f,llssioncd by the General Assembly ana
II Governor OF viiginii. respect y,
The order entered by ths Corpera1 ~ J
4 veil as the letter referred TO 3R there Ell
AZ slow that his refusal was based solely
NJ On s tie question of the 4 constitutional
VI power OF the General Assembly q MI MI
~ itinia to pass the act of 9th OF March,
1905 under which tho plaintiff was
I elected. A 3tt. !. s,si K v slij "a a
THE question of the constitutiona!l,ity o. o.
4 this net should not have been zen. consluer,sa
sion Of Virginia in allowing Joseph But t.
Ii ton to q,iulify before them. their duty IN
the premises being merely ministerial. j,
Tlo act provides TINT , ,Me -, l,n,
4 discharge Of Ills duties qualify before tho
s State Corporation Commission BY taking
oaths required BY the Constitution z, ana
bond BOZ Ii, in tho penalty Of $1,000 IN such,
4 form and With $such security us shall be
81 approved by the State Corpoiatio COM
Il mission, conditioned for the faithful, per
4 formalice OF his duties.''-se y oll i 9
4 Code Biennial. p. 304, sec. 3D.
M Their acts ure merely mini ana
iS>asg such SHOULD have been performed with.
out rcfercnce TO the constit utlonality. O.
Il tthe law. This sort Of question is not
4 to- he considered by II body or persons
$II charged jwithiu5 mere ministerial duty. ~
F8 The case or Smith VS. Tnlconb, 81 Me-
On. 272 and 27S, 1T wns held, 'on II sum!
mary hearing on q petit for q nan m
snereiy liz fights Of Of third FER
ga ministerial officer entrusted with
the collection aud disbursement Of reve7s
I'D government has no right to withhold /. q
$peiformance Of his ministerial duties, pre-
ST scriDed by law, merely because he up,
may be
d Ia " may be unconstitutional XIX
HAT The court says, page 1885, fOn q sum \,
Si mary hearing on petition for nanld5sa-
ST question Of the constitutionnlily OF the,
Il law involving the rights Of third persons,z
y hut will leave that question to be set
Il tied, when properly presented, BY parties
5ln 81 that the net constitutions
III In the case Of People vs. C'oline, ~
5iEJphnS IN 70 up b49 the court says, on
4 page 553Es''I certainly did not lie with
1.-THE defendant as a mere ministerial Of
sioners null sThe vulldltySo # tho
futile OF the commissioners to- tlleir8o Office
unjust not be determined IN this collat-!
81 eral way i35s 5i75 Ess3t
L. the case Of the State. &c. vs.. lVrot-
\ 5n 1l Secretary Of the State. in 8a17.
lslA mn, lsepqrts page l5s. was
behind commissions Officially presented to
u him for autllcnticntion,n E2s III
&s IN the application for mandarnus, tho
Il ssecretnry Of State, who had refused to-
plaintif made the point III his answer
that the nppontmentof the officer Wa
u ,lnconstitllt lonul, saying, page 15S ,s.'thut
Inc I. commission referred 10 n& the said
y OF no force, effect or validity whltcvrr.5
!. hlneause q tempted to be- Issued isbyS tia
I'll W. bout any trnntS 81 law
s%1 orS5s ss DONG, and In direct violation Of
!. 2 said 1G4, ii spca X
1,ls RIM fhl Is contention; may haply
IN IMPOSED on the Secretary or State Viii
Ysl q con fer on The reator any leGal right
5l 9 the n Office Of Sheriff but this rs no
should attempt to exercise discretionary atry
3Shim.'s''3 e " gs5 IT -
4, These I,l,e; 5 eases show. We respectfully
".
formed is ministerial the officer or body
charged with It's performance hts no
& discretion nnl must act, "a and that If he
y falls and refuses to do 50, tho court
s4Will issue Its $lnandnlnus una compel its
X performance. M }s Z j} s5i
II Was never intended TINT any per-
son or body in the performance Of n
lEonly It's judgment and discretion. but
, should exercise that most delicate and
" dfilcult ana highest degree Of Judgment
and discretion. which would declare the
y acts Of the Legislature of the StutcRun-
constitutional. IN
The statement that rhe act is minis
t s,,ih INCENTIVE its very terms any
If this woy,. ret. tie law my officer
+ charged with merely ministerial duties
might raise constitutional qucstio In
|, this. way, and mandamuses would be as
II thick as leaves In tho forest. 81 ~
AZ We submit, therefore, thnt without
\ reference to tho doubt expressed by the
i Corporation Conrinissun Ga,nl It Is only
v the law under which the plaintiff was
chosen Commissioner of Insurance, y the
Y writ of mandamus should Issue reqllir-
Ing the corp9pa53fn nt9hr,
premises being merely ministerial.
II 1t should be claimed that approving
the form and sufiiclcncy Of the bond
surance, Involved duties not merely, min
8 isterial. a sufficient answer a VIII ~ pc
found in the law laid down ln. len-
ming g. AIunford VA Reports, An
notated, Sec. 4 Of note on page a62.
where II Is stated. $50 where the
matter involving judgment Or dlscre-,
ton Is n mere preliminary question of
fact leading up to the main act
which is purely ministerial, mandamuss
tinn Of such preliminary question calls
y for the exercise of Judgment or dscrc-
S5 .,on'': for which position 1t cites CONF.
y n,onwealth vs.. Justices Of Fairfax coun-
Eallot Commissioners, AZ w. Va, 2G3.
4 4 we submit that the act Of the Legfs-i
lat,ire creating the Bureau Of Insurance,
and providing for the election By the
& General Assembly OF the Commissioner
or Insurance, is constitutional and valid.