
    Richmond.
    Frederick Justices v. Bruce & als.
    
    (Absent Baldwin and Daniel, J’s.)
    1848. January Term.
    
    1. The governor may commission some of the persons recommended as justices at the same time by the County Court, and may refuse to commission the others.
    2. A person who has been commissioned by the governor as a justice, may take the oaths of office before a justice of the peace, if it be done in the courthouse on a Court day.
    At the December term 1846, of the County Court of Frederick, twenty-two persons were recommended to the governor as justices for the county. The governor commissioned twelve of these, and declined to commission the others. A portion of those commissioned, applied to the County Court to be permitted to take the oaths prescribed by law in open Court, but the Court refused the motion. They afterwards took the oaths before a justice of the peace of the county in the courthouse on a Court day, and then presented the certificates of the justice of their due qualification, and moved the Court to direct the clerk to enter the certificates of record, and that they might be admitted to act as justices. This motion the Court overruled.
    The persons who had thus applied to the County Court, then applied to the Judge of the Circuit Court for a mandamus to the justices of the County Court, to compel them to record the certificate of the qualification of the petitioners before the justice, and to admit them to act as justices. The mandamus was issued; and a majority of the justices of the county returned in answer thereto:
    1st. That the governor had no authority to commission a portion of the persons recommended, and to refuse to commission the others.
    
      2d. That it was not competent for the persons commissioned, to take the oaths of office before a justice of the peace, but that it must be done in open Court. And therefore they were justified in refusing to admit the certificates °f the justice to record.
    The petitioners objected to the return as insufficient, and the Circuit Court sustained the objection, and directed a peremptory mandamus to the justices of Frederick, to admit to record the certificates of the justice that the petitioners had taken the oaths of office before him ; and further, to allow them to take their seats on the bench of said County Court as constituent members thereof. The justices having excepted to the opinion of the Court, applied to this Court for a supersedeas, which was granted.
    
      Cooke, for the appellant, insisted :
    1st. That the qualification before a single justice was illegal. He referred to 1 Rev. Code, ch. 28, § 4, p. 73, and Id. ch. 71, § 3, p. 245.
    2d. That the commissioning by the governor of only a part of the persons recommended, was illegal. He referred to the 7th clause of the 5th article of the constitution.
    
      Patton, for the appellees,
    referred to the long established practice, and to the language of the constitution,' to shew that the governor had the power to commission some of the persons recommended by the County Court, without commissioning all.
    On the first point, he referred to the statutes cited on the other side, and to § 7 of the first act.
    
      
       They were related to some of the parties.
    
   Bv the Court.

Affirm the judgment.  