Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1886-04-18
WYTHEyILLE.
THE DECISION IN THE RECENT 10.
CAL.opTIoN, ELECTION CASE.
The County-court Judge Decides that
License Should Not be Issued-Ths
Case to DO Appealed.
lsrec,.l telegram 10 the Dispatch.


open the place assigned for the audience
was crowded, and the same eager in.
terest was shown as on the day before.
At 10 o'clock court opened, and as
by the decision Of the judge the eve
nipg before the burden Of proof was
on the applicants for license to show
that the returns were irregular, they
adduced evidence to show that one Of
the number Of the Board of Electors
appointed by the Legislature for Wythe
county had refused to qualify, and that
the other two had never had meeting,
had never filed the vacancy in their
number, and had never kept any
records of their proceedings; also,
that the alleged commissioner, Mr..
Thomas, had been appointed judge
by one only of the Board with
out the knowledge Of the other
members. Their antagonists adduced
no evidence at all, but rested the
case on the facts heretofore adduced.
After short argument on both sides the
Court took time to consider and render
his decision, adjourning the court until
2 o'clock.
At the evening session when the at
torneys were called the Court imme-
diately began to read his opinion, pre-.
facing his reading by stating that the
question was one of grave Importance,
and for this reason he had committed
his decision to writing.
THE OPINION.
The opinion says: There is no ques-
ton as to the applicants having the
right under the general revenue laws Of
the State to obtain license, having paid
his tax and proven that he is suitable
person and that his place is convenient.
Therefore the question before the court
is whether the act of Assembly known
as the local-option law is now in force
in the Wytheville msgisterial district.
The determination Of this question de.
ponds upon the fact whether special
election has been held in said magiste-
rial district pursuant to the provisions
of said act Of Assembly, and the further
fact Of the result Of said election against
licensing the sale Of intoxicating liquors.
If said election has been so held and
the result is against such license, then
said law is in force and the application
for license must be denied. AS the
Court has already said in its partial
opinion on yesterday, the certificate of
the commissioners, where it is regular
on its face, will be held to be at least
prima: facie evidence Of the fact that
such election has been so held, and that
the result of said election has been as
so certified therein; but the Court
was Of opinion that such certificate
was not a verify in itself, but was open
to attack by this applicant here as be-
ing false or otherwise void and Of no
effect, and that this might be shown By
parole or other competent evidence. In
pursuance Of that opinion Of the court
the applicants have attacked the certi-
ficate of the election purporting to have
been held in Wytheville district
on the 10th of April last. First.
because from its face it shows
that the votes were canvassed and the
certificate given two days after the time
designated by law; and, second, it is
denied that w. E. Thomas was q le-
gally-qualifed commissioner, and there
fore had no power to appoint II. Z.
McWane, j. r. Trucks, and G. d.
Halter his associates pro haec rice
and, further, if he had such power he
could not exercise it after the day
prescribed by law for canvassing
said votes; that the Court was Of the
opinion as to the first question
that the clause in the statute which
specially designated the time and place
for canvassing the votes, and on which
counsel depended to have the returns
set aside, is merely directory and not
mandatory, the purpose being always
to give effect to an election and
not to obstruct it; that the act is
very careful in providing for
failure in attendance of several
or all Of the commissioners, and pro-
viding further for clerical mistakes on
the part of any Of the officers, and for
misfeasance or maleieasance in office,
aflixing heavy penalties to prevent an
obstruction Of the lawful declaration Of
the will of the people at the polls. 1t
has always been held in legislative
assemblies, except when party spirit has
blinded the sense Of right and duty,
that all matters Of form should be dis
carded if necessary in order to get at
the very right of the matter. In view
of these facts it is my opinion that the
election has not been vitiated by irregu-
larity in the returns, since it is not
charged that either was fraud, and no
injustice has been done thereby.
A MORE SERIOUS QUESTION.
The second question is, in my mind,
more serious, and one about which l
have the grayest doubts. 1t was not
questioned that said Thomas was judge
Of said election, but it is denied that
be was ever appointed commissioner.
1t has been shown to the Court that in
this county there never has been any
action Of the Board, and further, that
there has never been regular meeting
of said Board, and it is therefore in
sisted that we have had no legal judges,
registrars, or commissioners Of election
in this county since the appointment of
the Board. If that be true, all the old
judges, &C., would expressly hold over
until their successors be elected and
qualified. Now, it does not appear to
the Court who were the commissioners
of election for this county holding office
at the date Of the appointment Of the
Board. The certificate here presented,
made out in due form of law and
certified to by the clerk, recites at least
that the said W. Z. Thomas is one OF the
commissioners of election. There
being nothing adduced to the contrary,
/ am, therefore, OF opinion, but not,
however, without some doubts. that
the certificate here made should be sus-
tanned. If the applicant here could in
49,, 4 Al 1911 - a l.. r.