Frisbie v. Justices of Wythe County , 2 Va. 92 ( 1817 )

Adjourned Case from the Superior Court of Wythe. The Plaintiff applied to the Superior Court for a Mandamus, to compel the Justices to nominate him as one of the three persons annually recommended to the Executive, out of whom one is commissioned as Sheriff of the county. The applicant alleged and proved that he was, and had been, for many years, an active Justice of the Peace of the county, notwithstanding which, the Court had repeatedly nominated younger Justices than himself, and had positively refused to nominate him. A conditional Mandamus was awarded, to which the return in part was, that according to the Eaw of the land, the Justices had a right to nominate any three Justices that to them seemed fit, and that in the exercise of this discretion, they were not subject to the control of any Superior Tribunal ; and that they had always nominated three fit persons, according to Eaw: the applicant demurred to that part of the return : and the question arising from that demurrer, was adjourned.

This Court adjudged, that the Eaw was for the Defendants, that a Mandamus would not lie to compel the Justices to make a nomination of a particular Justice for the office of Sheriff, and that in the exercise of this discretionary power, they could not be controlled by the Superior Courts, ^(a)

(a) 1 Rev. Code of 1792, ch. 80 ; 1 Rev. Code of 1819, ch. 78.