Ex Parte William Stratton. November 16th, 1863
| Decision Date | 31 January 1866 |
| Citation | 1 W.Va. 305 |
| Court | West Virginia Supreme Court |
| Parties | Ex parte William Stratton. |
The act of November 16th, 1863, * prescribing an oath for officers of the State of West Virginia, is not unconstitutional.
William Stratton, of Logan county, applied to this court for a writ of peremptory mandamus to the judge of the 8th circuit to compel him to allow the applicant to qualify as clerk of the circuit court of that county, without taking the oath prescribed for officers by the act of November 16, 1863; alleging that he had been duly elected to that office. The rule nisi was waived, and the question was heard upon the construction of the statute at the same term the application was made.
J. H. Ferguson, for petitioner.
William Ware Peck, for the State.
Berkshire, President. This is a petition of William Stratton for a mandamus to the judge of the 8th circuit to compel him to allow the said Stratton to qualify as clerk of the circuit court of Logan county, (to which office he claims to have been duly elected by the voters of said county,) without taking the oath prescribed by the act of the 16th of November, 1863, known as the "test oath." The said Stratton claims that this act, in so far as it requires this oath of loyalty, is unconstitutional and void, and that he has a right to qualify and discharge the duties of the office without taking it.
The very delicate and important question, therefore, is presented, whether or not the legislature transcended its legitimate powers in passing the act under consideration, in so far as it requires this test oath from the officers of the State. Unlike the general government, the legislatures of the several States possess all the legislative powers of state, except so far as they are withheld or restricted by the fundamental law of each, whereas the Congress of the United States can exercise no powers except such as are expressly granted by the constitution of the United States, and such incidental and implied powers as are proper and necessary to carry into effect the powers so expressly granted. In other words, in order to ascertain what powers belong to Congress, we must look to the constitution of the United States to see what are granted, while on the other hand we look to the constitutions of the States to ascertain not what powers are given, but what are withheld, and what restrictions and limitations are imposed by their provisions.
Our legislature possessing all the legislative power of the...
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State ex rel. Olson v. Langer, 6288.
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