The Norfolk Virginian. [volume] (Norfolk, Va.) 186?-189?, 1897-05-27

state, anu IT has been repeatedly, and so
! far as am informed, uniformly, held,
! compliance with such q ScpnstitutfonnI
requirement.. Little vs.. Little, s Mis-
souri,, z27. 80 Am. Doc.,,S BIT. Reddick VS.
Clouds Admr 2 Gilman $40. Ferris VS..
Grow Gilman, Illinois, 96.}
IN this latter case the Court saws TINT
the Legislature cannot. II it womb dis
pense with the Constitutional REQUIRE
irent that such writ or process rnust
run III the name Of the people. This Is
not question that admits of argument.
! us enough that the constitution has so
SO declared. Why 1t has so provided 10
not question that admits or argument
&c - enough that tn constitution has SO
oeclared. Why 1t is so provided is not
LOT the courts to inquire, nor Is 1t in the
poWer OF the court to dispense with the
euulIetnent. n particular form when
prescribed by the constitution becomes
matter, Of substance and must be pur-
sued tSee also McFadden VS.. Fortier.
~ Illinois 510 McLendon VS. State 81
-. x: a. lTenn.) 73s. Sidwell VS.. schu-
nacker. SO illinois 426. Forbes VS. Dnr-
ing {AIich) Sd NJ w. Rep 3S5.
It seems that in Arkansas and New
hampshire also writs having this defect
are void (Gilbreath VS.. Kuyendall /
ARK RI 90. Hutchins vs.. Edison n. H. 1s9.
40 mat 1t Is clear that If tile Virginia
c,oliStltutional requirement. that writs
n.
wealth Of Virginia. and be attested nv
tne clerk, applies to writs Of election
then the writ under discussion in tho
case at bar is void on its face. II moi
tner purports to be command OF the
.tGitolinonwealth, nor is it attested by
.ne clerk. II the constitutional require
!nent APPLIES to such a writ the defect
IS 3urlsdicttonal. All proceedings had
.nere1naef are void, and no valid cleo
~ tioi mas Dcen or could have been held
~ It's authority. In the Moore case.
LII az Roanoke. March 8, 1891, the
ron. STAFFORD G. Whittle expressly held
mat the Virginia constitutional ren,,iraN
1nent referred to does apply TO s,,cb
wrlts of election 60 : '0s''
!, am not satisfied. however, to nut this
9ecision on this ground. because I am In
~. US 70 whether the constitution re-
tels 10 any other writs than the ordj
nary process Of the courts. r. is MOI
iiecessafy Tor the determination Of fills
case mat this doubt or mine he re-
solved. = tAe pe r.
o. Then the third ground OF attach da-
,!inhas attention. The statute author
,nara Inc County Court, or the Judge
lHereol' IN vacation, on the petition or
one-iourth of the qualified voters. yntin.r
Lt the preceding November election Re
issue writ Of election. 1t appears Tia +
smeie IS no record Of the presentation Of
9 sue, petition, nor Of the action OF the
n 10
county Court OF Princess Anne comfy
NOR IS 1t claimed that there Is any s,,c,,
scoio anywhere, Or that 1t was Intended
10 make any such record, except such n 8
may oe contained in the writ of election
Il Is clear that the act OF the Ju(Irn In
determining whether the petition is
slgned ny the requisite number or voters
| IS ludiclai, and that this essential fact
must be judicially ascertalrrcd. bv the
E ~ i or Judge, before any election can
~ ~ ieshiy ordered, or any writ Of cleo
tlon can be legally issued The official
record In judicial proceedings Is the ONLY
authentic history thereon.
ticie is no way TO prove the acts of a
eourl OF record except by the record it
SELF. or a copy Of the same 600 Am. antl
Ing. Encyc. Of Law 501, 5O3)
Under the statute the essential nro,;n,-
mary steps in order to secure y valid
local option election are. the preparation
anu presentation Of q proper petition 10
tue county Court, or Judge in vacation.
. ~, men there must be the favorable
thar action OF the court or Judge
.hefeon No writ OF election can legally
issue until after such judicial action
| ana Such action can only he uroyod nv
me record There being no such action
OF what Is equivalent, no record OF such
| acton. no valid writ Of election hns been
or couia pc issued. If It be claimed That
Inc writ itself is such record, the obvio,Is
| answers are. that it was not so intended
| tnat IL was not recorded as the act OF
| me Judge. that it was never delivered 10
NE Clerk to be recorded as an official act
or the Judge. and If it Is such record then
| IL al once ceases to be the writ of cleo
| tioh. II cannot be both the writ OF cleo
,lon. which Is required to be delivered
20 INC Sherilf rs his authority, and the
record. which should have been deliy-
trea 70 the Clerk for preservation. They
constitute separate legal steps in such
proceeding, and both are essential "a
,ne validity or the election. I am una
ple 70 reach any other conclusion WITH
out doing violence to Il salutary rula If
law which Is founded upon reason ana
Justice The past proceedings of q court
| or record are at all times open to NH
! nc Inspections; the public Is required IN
! take notice OF their existence and are
! bound thereby. Under our system wn
cannot conceive Of q judicial act which
is not OF necessity made q public re-
cord This rccordation, either i'm fact
| or by amendment OF those officials who
! are charged with the duty is essen tial
TO It's validity. TO admit any modilical
non or this doctrine would be to give
countenance to 4 policy freiEhted with
eEll possibilities. II the act is done in
open court the Clerk makes the proper
minute thereof. which is signed BY the
Judge afterwards. and X done in vaca-
non. the Judge makes the minute and
certifles 1t to the Clerk. Just as 1t Is
impossible to conceive Of n valid writ of
fie!i faciaS without q judgment of re-
sible to conceive of q valid writ of cleo
ton under section 5S1 Of the Code with
out iudcia! determination. of record.
| showing thu. exist of tla