Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1885-01-20
HE IEGALITY QUESTION.

An Abridged Text OF Judge Armstrong;
Opinion I'm the Hardy County Case.
Following is an abridged text ofthe opin-
ion Of Judge Armstrong in the Lobb-Wilson
court clerk contest in Hardy county:
Charles Lobb, of Hardy county, has pre-
scented 10 me, in vacation, petition alleg
ing that certain number Of votes were cast
for him for the Office Of the clerk Of the
County Court and Of the Circuit Court OF
said county at the election held on the 18th
day Of November last, and none cast for
any other person for said Offices, and he
asks me to award a writ Of mandamus re-
curing Alex. Sommerville, one Of the CON-
misSioners Of the county court to sign
certificate Of the said votes which he re-
fuses to do.
II must be conceded that, prior to the 4th
Of October last, the law did not authorize
an election to be held in November last for
any county officer. Mr.. Lobb claims that
the ratification blythe people of the amend
ment to the constitution. changing the time
Of holding the general elections for State
and county officers from the second Tues
day in October to the first Tuesday after the
FIRST Monday in November, submitted to the
vote of the people on the l4th day Of Octo-
Der last, had the effect of annuling the cleo
ton for State and county Offices held on that
day; that the constitution as amended
required the election to be held in Noyem-
Der and the October election being void, an
election must be held on the first Tuesday
after the first Monday in November, 1884;
that this amendment operated by Its own
force to amend the general election law
contained in Chapter l55, of the Acts OF
1882, so as to require an election to be held
for such officers IN November, 1884, and to
require the commissioners of the county
court to sign the certificate set forth IN the
twenty-second section Of said Chapter.
This renders 1t necessary for me TO decide
whether the adoption Of the amendment BY
the people has the effect claimed.
The question to be considered is what do
the words, I'm force from the time of such
ratification mean? Do they mean in force
from the beginning Of the day on which the
amendment is ratiied2 OF, from the close
\ of the day, or, from some intermediate
period Of the day? The amendment sim
ply provides that the general elections shall
be held on a certain day in November with
out specifying the year From other pro-
vision in the Constitution, we learn that
they are 10 be held every second year. The
wear for them to be held is 1884. As the
Constitution provides that every amend
ment shall be submitted at general cleo
ton, this amendment was submitted last
October and was ratified. The
question suggested by others may
well be asked--if the effect Of
the ratification of the amendment is to an
null the October election, il does not cut It's
own throat, as it can only be ratified at a
general election Bat putting this out of
view, will consider the claim that it takes
eject from the beginning Of the l4th Of
October last and thus sets aside the cleo
ton of officers held on that day.
Judge Armstrong then entered into an
exhaustive argument, citing numerous
authorities to show that the law does not
allow a fraction of day. and said: AT
the hour Of sunset on the nth day of Octo-
Der and not before was the result fixed aud
Interchangeable and not until that hour was
the act of ratification completed. If this
view be taken the time of the ratification
would be the close of the day on which the
vote was pOlled. But, am of the opinion
that the trainers of the Constitution did not
iptend that but the hour OF the day when
the will of the people was finally
and conclusively expressed on the
amendment which, on the day this
amendment was ratified, was the hour of
sunset. am therefore of the opinion that
the constitutional amendment was not in
force earlier than the close OF the polls on
the l4th Of October last; that the October
election is valid and that no election for
State and county officers could be held under
the amendment before November 1886;
and that no duty was imposed by law upon
Mr.. Sommerville to certify any votes cast
on the 18th Of November, 1884, for clerk of
the circuit court and clerk Of the county
court of Hardy county. The writ Of man
damus is refused.-HGmpshire Review