The Roanoke times. [volume] (Roanoke, Va.) 1890-1895, 1894-03-10
ELECTION VOID.
Continued from page 1

Continued from page 1.
the people, and it was required, before
the court could act, that y majority Of
the acting justices should be present, or
that all should have been summoned to
attend; and it was held that to give
validity to tho orders of the court 1t
was necessary that the record OF the
court should show, when the court
acted, either that majority of tho
justices were present or that all had
been summoned. Without these facts
appearing it would not appear that the
court had Jurisdiction of the matter
with which 1T was charged. So in the
present case, while the general law in
vests the county court with jurisdiction
TO order, without special application
from any source, an election to de-
termine whether there shall be sub
scription to the capital stock Of rail-
road company, yet the special act incor-
porating the Danville and New River
Railroad Company makes 1t the duty
of the county court, in it's discretion,
to cause vote of the qualified voters
to be taken at such time as the presi-
dent and directors Of the company may
ask. To authorize the action of
tho county court as provided, it
would seem to be necessary that it
should be taken on the application CT
the president and directors Of the COM
pany, and probably it might be consid-
cred essential to the jurisdiction of the
court that that fact should appear by
the record Of the court" II the app!i-
cation of the president and directors
was necessary there 10 give the county
court jurisdiction to order vote on the
question of subscription to the capital
stock of tho company-a jurisdiction
with which it was invested under the
general law, but the mode of exercising
which vas prescribed by the special act
incorporating the railroad com pany-
how much greater the necessity for q
proper petition in the case at bar TO give
the Hastings Court jurisdiction, there
being no statute, other than that requir-
ing petition, giving the court any au.
thority 10 act. The presence, therefore,
of petition from such of tho qualified
voters of the city as the statute pre-.
scribes being essential to give jurisdic
ton, 1t is clearly competent for appel
liant to introduce evidence, parol or
written, 10 show that the recital in the
order of The judge OF the Hastings Court
Of August A. lS93-"that one fourth of
the qualified voters of said city voting
at the last regular November election
have signed the said petition asking for
the special election"-in point of fact is
not true. For, as seen from the author
ity cited above, recitals of judicial rec
ords in respect Of jurisdiction are but
prima facie evidence, even as to parties
and privieS.
Here no proof IN regard to the petition
is necessary, for il is admitted that one
fourth OF the qualified voters OF the city
who actually voted at the previous No
vember election did not sign it; and this
brings us to the consideration of the
proper construction Of that part OF Sec
ton 5Sl, which designates the persons
who shall petition for the cecial cleo
ton. The position of counsel for ap-
pellces is that, chapter 25 OF tho code,
on tho subject Of local option elections,
was taken from chapter 24S, acts 1885 6,
page 25S. That section l of that act
| shows clearly that IL was the intention
OF the legislature to require petition
for such special election, to be signed
by qualified voters of the city equivs-
| lent in number to one. fourth of those
who actually voted at the previous No.
vember election; and that inasmuch IS
the language of section 5s1 Of the code,
tho substitute for section 1, does not
show an Intention on the part of the
legislature to change the former law,
we must consider section 5S1 in the
| light Of section /. To sustain this view
we are referred to the address of Judge
Burks, delivered before the Virginia
Bar Association in 1891. That learned
Judge says: Let me premise that the
| expositor of the code should keep in
| mind the rule of construction, that in
| general revision of the statutes OF a
State the change Of phraseology in a
former statute does not necessarily i'm
I ply an intention to change the law
| the established rule is that the old law
was not intended to be altered unless
such intention plaiuly appears in the
new code"
Chung Parramore ya Taylor, IL Graft,
242, and Wenonale VS.. Brogden, 81
Graft, Cos.
In this connection / would rcmai k
that if the premises OF counsel Werc true