The opinion
ClaRK, J.,
concurring in the dissenting opinion: The basis of the authority of the Judge to appoint the two additional commissioners is the substantive and substantial fact that two hundred electors, one hundred of whom are freeholders, have petitioned him to make such appointment, and not the merely formal requirement that the clerk has certified that such petitioners are electors and freeholders. When the petition is handed the Judge with the requisite number of names, and the fact that there are 200 electors and 100 of them are freeholders, is shown, as in this case, by better evidence than the certificate of the clerk, to-wit, by the primary evidence on which the clerk should have acted, it would Le sacrificing substance to form to permit a contumacious clerk, who might be ignorant of his duty or perhaps moved by improper motives, to nullify an Act of the General Assembly by his veto. The Judge, having found the substantive fact that 200 electors, 100 of whom are freeholders, have signed the petition, it is a matter of no sort of consequence that the clerk has refused to make the certificate, the object of which is merely to save the Judge the labor of finding how the fact is. No part of the duty of appointment is vested in the clerk. When the Judge found that the state of facts existed which required him to *253 appoint, it was his duty to do so. In Waller y. Sikes, at this term, the court has held that the Judge should not have ordered the clerk to make the certificate and have put him in contempt for failure to comply. I think his certificate being only one means of enlightening the Judge, when the latter found the facts independently of the clerk’s contumacious refusal to make the certificate, the Judge should simply have proceeded without it. The certificate was no longer essential.