The times dispatch. [volume] (Richmond, Va.) 1903-1914, 1914-07-05
.HUNDLEY REFUSES
TO CALL ELECTION
Declines on Ground That Recent
Act of General Assembly
Is Unconstitutional.
DISPENSARIES AT STAKE
Il Was Proposed to Put Issue
Before Voters of Prince
Edward County.
DIsPENsARIES AT STAKE
Especial to The Times Dispatch. ]

lSDecial TO The Times- Dispatch.1
FarmvIlle Va. July i.-Sitting In the
Circuit Court of Prince Edward County
o-day, Judge George j. IIundley re-
fused to call an election placing be
fore the voters the question Of contin-
uing or closing the dispensarics at
Farmville and Meherrin. Judge Humid
ley refused to act favorably on the
petition on the ground that the act of
the General Assembly. approved March
-. 1914, under which II was proposed
that the election lie held, was incon-
stitutional At the hearing on the ap-
pllcation the dispcrsary boards were
represented by Tinslcy Coleman, OF
'Lynchburg, while Thomas Whitehead.
OF Amherst. appeared 70: the An;i-Sa
loon League. Judge llundley's deci-
sion. In part. follows:
"Applicatiou having been made to
me. the Judge OF the Circui, Court for
the County of Prince Edward. TO desig
natc a day for AN election to be held
In Prince Edward County. Va. under
an act of the General Assembly, APP
proved March -. 1914. entitled AN act
To repeal an act. entitled an act to
establish a dispensary for the sale OF
intoxicating liquors in Farmville Mag
isterial District In Prince Edward
County. Va, approved February l3,
1901, and to repeal also an act for the
establishment OF a dispensary for the
Magis;erial District, ut Meherrin. Va,
approved December IL, 1903. provided
that the qualified voters of Prince Ed
ward shall 40 elect on the first day
of July, 1914. counsel for AMI against
the repeal or the said acts requested
and were granted leave to appear and
discuss the constitutionality of the said
repeating act After hearing and duly
considering the arguments advanced
pro and con. have decided to refuse
10 designate any day for the said cleo
ton under the said repeating act. the
reasons for which are now given:
HOLDS JUDGE IL NOT
MERELY AUTOMATON
Counsel for the act took the posi-
ton that the duty OF the judge under
said act was purely ministerial: that
he was simply an automaton, without
perception or reflection. and should au
tomaticany order an election without
regard to the constituiionallty OF the
act. but cannot take that view OF
my duty in the premises. The very fact
that the Legislature designated the
judge of the Circuit Court of Prince
Edward TO discharge this duty instead
OF some one who could post notices of
the election, but who could not be cX-
pected TO exercise any discretion in the
matter. would indicate that IL did not
intend that the duty should be auto
matically performed. In the ease of
Campbell VS.. Bryant. l04 Va. page 51G.
the court says: The act being uncon-
stitutional. II IL not Il law; IL con-
fers no rights: IL imposes no duties;
II affords no protection: il creates no
office. IL is in legal contemplation. as
imperative as though il had never been
passed.
THE framcr OF the act in question
intended that il should accomplish two
objects: II should be tho means of re-
li,,Y h. - nf
establishing Il dispensary in Farmvillo
Magisterial District. and the act OF De-
cember II. 1903. establishing dis
pensary at Meherrin in Leigh Magis-
terial District: and secondly II should
establish absolute prohibition in tine
County of Prince Edward from and
after the approval of the act by vote
of the people. The first object was
plainly expressed IN the title. but there
In there is not the slightest anusion
to this second object. lf both OF these
objects had been plainly stated in the
title there could have been no objcc-
tion raised on that score, hut as 1t Is.
the judge before lifting a finger to-
ward giving this act effect. is called
upon to decide for himself very seri-
Gus question, to-wit: whether or not
such an act is constitutional. and. TO
use the language of the Supreme Court
cited above. whether II imposes any
duties on any one
COURAGEOUS JUDGES
WILL ENFORCE LAWS
The Judge proceeded 10 quote AZ
length decisions bearing on the ques-
tion and concludes as follows:
II am painfully aware that il is
customary nov for certain people
prominent in tho eyes of the public
to scoff at Constitutions and reviic
Judges who would enforce the pro
oT hr
aware that these men have follow
ing. 7 am aware also that in certain
quarters where good consciences and
honesty of purpose have their place. a
certain unreasonng and intol@rant
hys.eria has usurped the place of re-
ncction and sound common sense. And
I am aware also that there is another
element straining at the leash. which
would overthrow all restraint and all
law but we still have constitutional
government. and think We still have
ju.igec who will not hesitate to uphold
the Constitution when necessary. The
.ime may come when all barriers will
he broken down. and we shall have a
new democracy. II that time ever
comes il will he 4 time when spineless
and subservient judges may more ac
ceItably serve the people, but as long
as we have n Constitution and laws
made in pursuance thereof, think
Judges VIII Dc 1Dunu III future as In
the past courageous enough to enforce
the Constitution II may be doubt ed
whether this case is properly before
me or not-wnether or not I should
nave waited until the election had
been held, and tho act was formally at
tackc6 in INV court. but IL Judge fIar-
rson he right in his opinion delivered
in Campbell vs. Bryant cited above.
and I think he is, when he declared
that The act being unconstitutional
II Is not iaw--it confers no rights
it imposes no duties then ] have
no duty to perform. re am right in
considering this judicial question:
presented to me as a judge and not
rs an automaton. then l have simply
discharged my duty in declaring the
act unconstitutional, and if I am
wrong, then the propounders and au-
thors OF this law have their remedy
by mandamus or otherwise, and the
Supreme Court will necessarily have
to pass upon tho constitutionality Of
the net when they order an election
under It. do not think 7 should put
the county to the expense or the peo-