TITLE 4.

Religion; Benevolent Associations and Objects.

CHAPTER 7.

Church Property, Benevolent Associations and Objects.

§ 53. Condemnation of land for cemeteries.

See the note to § 56.

"Establish" and "Enlarge" Are Not Used Interchangeably. The language of this section completely demonstrates that the legislature did not intend the words "establish" and "enlarge" to be used interchangeably, but that the use of one excluded any idea that it embraced or meant the other. Temple v. Petersburg, 182 Va. 418, 424, 29 S. E. (2d) 357.

§ 53a. Cities and counties may establish jointly owned cemeteries; how maintained and operated. -Any city and county, or any number of cities and counties, may jointly purchase or otherwise acquire land for the purpose of improving and establishing a jointly owned cemetery or cemeteries, and the governing bodies of the cities and counties purchasing or acquiring land for joint cemetery purposes shall have the power to plan any such cemetery and amend and revise any plans so made, to determine the perpetual up-keep requirements of such cemetery and of perpetual up-keep lots therein, to fix the purchase price of all lots therein, and to designate pauper lots and lots with and without perpetual care.

After acquiring and planning such cemetery or cemeteries, the circuit court of the county wherein the cemetery is located shall appoint not less than five nor more than nine trustees, who shall reside in the city or county, for the purpose of managing and controlling such cemetery. The trustees shall have the power to convey lots in the cemetery in accordance with the plan thereof, without authority of court, and to include in deeds of conveyance such reasonable restrictions and conditions as they deem advisable, and shall have all other powers granted by general law to trustees of cemeteries. Such trustees shall, before entering upon the performance of their duties, give bond with approved security and in such penalty as the court determines for the faithful performance of their duties.

The trustees shall, upon delivery of a deed for any lot or portion thereof (except a pauper lot), collect the purchase price and pay it to the designated treasurer of either the county or city establishing the cemetery. The amounts received from the sale of lots or portions thereof as herein determined shall be used by the city and county to pay for the cost of the land and improvements. All funds for perpetual up-keep shall be properly invested under the direction of the governing bodies of the city and county. The balance of the purchase price of lots or portions thereof, and so

much of the income from invested perpetual care funds as may be needed, shall be paid annually to the trustees, to be used by them along with all other funds received by them for the maintenance, operation and up-keep of the cemetery and of the perpetual care lots therein. (1944, c. 228.)

§ 56. Location of cemeteries; limitation as to quantity of land; exceptions.-No cemetery shall be hereafter established within the corporate limits of any city or town; nor shall any cemetery be established within two hundred fifty yards of any residence without the consent of the owner of the legal and equitable title of the residence; provided that, if the location for the proposed cemetery is separated from any residence by a State highway, it may be established upon such location without the consent of the owner of such residence if it be not less than two hundred fifty feet from the residence at its nearest point thereto; and no cemetery shall be hereafter established, and no burial made in any part of any cemetery, other than a municipal or city cemetery, located within three hundred yards of any property owned by any city, town or water company, upon which or a portion of which are now located driven wells from which water is pumped or drawn from the ground in connection with the public water supply. Nothing contained in sections fifty, fifty-one, fiftytwo and fifty-three shall be so construed as to authorize a conveyance of more than three hundred acres, or the condemnation of more than two acres of land for the use of a cemetery. When damage is done to adjacent land by the establishment of such cemetery, whether established by purchase or condemnation, the owners whose lands have been damaged shall have a right to action for such damage against any person, firm, corporation or municipality establishing the cemetery; provided such action be instituted within one year from such establishment. It is further provided that the prohibitions and restrictions as to the location or establishment of cemeteries shall not apply to the town of Stuart, in Patrick county, the town of Gretna, in Pittsylvania county, or to the Woodbine Cemetery in the City of Harrisonburg, Rockingham county; nor any residence in Norfolk county which is separated from the proposed cemetery by a State highway, river, creek, tributary branch or marsh lands, if such residence be not less than two hundred fifty feet from the cemetery at its closest point thereto. (Code 1887, § 1414; 1899-1910, pp. 181, 736; 1902-3-4, p. 896; 1906, p. 10; 1910, p. 590; 1926, p. 866; 1934, p. 13; 1942, c. 82; 1944, c. 313.)

Effect of Amendment of 1944. The amendment added the

latter part of the section relating to the city of Harrisonburg and Norfolk county.

To enlarge or add to a cemetery is not to establish one within the meaning of this section. Temple v. Petersburg, 182 Va. 418, 424, 29 S. E. (2d) 357. See note to § 53.

So, while a cemetery may not be established in a city or town, it may be added to or enlarged without running counter to the inhibition found in the section. Temple v. Petersburg, 182 Va. 418, 29 S. E. (2d) 357.

TITLE 6.

Elections by the People.

CHAPTER 10.

The Qualification and Privilege of Voters; How They Are Registered, and How They Vote.

§ 84. Circuit court to appoint electoral boards; term; vacancies; board to appoint judges, clerks and registrars of election; qualification. There shall be in each county and city an electoral board, composed of three members, who shall be appointed by the circuit court of the county or the corporation court of the city, or the judge of the court in vacation. In the appointment of the electoral board representation as far as practicable shall be given to each of the two political parties which, at the general election next preceding their appointment, cast the highest and the next highest number of votes, and a majority of the electoral board shall be from the political party which cast the highest number of votes in the State for governor at the last preceding gubernatorial election. The three members of the board who are in office when this Code takes effect, shall continue in office until their respective terms expire; to-wit, March first, nineteen hundred nineteen, March first, nineteen hundred twenty, and March first, nineteen hundred twenty-one. During the month of February in each year, as the terms of the members of the board respectively expire, their successors shall be appointed for a term of three years. Any vacancy occurring in any board shall be filled by the same authority for the unexpired term. The term of the electoral boards appointed under this section shall commence on the first of March next succeeding their appointment. The members of the board shall qualify before the first of March next succeeding their appointment by taking and subscribing the oaths required to be taken by county and city officers. Each electoral board shall appoint the judges, clerks, and registrars of election for its city or county, including the towns therein; and in appointing the judges of election, representation, as far as possible, shall be given to each of the two political parties which, at the general election next preceding their appointment, cast the highest and next highest number of votes. No person, nor the deputy of any person, holding any office or post of profit or emolument under the United States government, or who is in the employment of such government, or holding any elective office of profit or trust in the State, or in any county, city or town thereof, shall be appointed a member of the electoral board or a registrar or judge of election. (Code 1887, § 64; 1893-4, p. 782; 1899-00, p. 843; 1902-3-4, p. 562; 1944, c. 389.)

The 1944 amendment inserted the second sentence.

§ 86g (2). Appointment of general registrar for county having a density of population of 1,000 or more per square mile.

As to appointment of general registrars for counties ad

joining county having density of population of one thousand or more a square mile, see Acts 1944, cc. 302, 306.

§ 89. Pay of board.-Each member of the electoral board shall receive from the county, city or town, respectively, for each day of actual services the sum of six dollars, and the same mileage as is now paid to jurors; provided that no member of such board shall receive from the county, city or town, respectively, more than twenty-five dollars in any one year, exclusive of mileage, and provided further that in any county adjoining any county having a density of population of one thousand or more a square mile, and in any county adjoining a city lying wholly in the State and having a population of more than one hundred ninety thousand each member of the board shall receive for each day of actual services the sum of seven dollars, and may receive as much as, but not in excess of, fifty dollars in any one year, exclusive of mileage; and provided further that in the event one or more special elections be held in any county, city or town in any year, the members of the electoral board shall be paid additional amounts at the same per diem, and mileage; but the secretary of the board shall in addition to the per diem herein provided for be allowed his expenses not to exceed twenty-five dollars in any one year, and the council of any city containing more than fifty thousand inhabitants may provide additional compensation for members of the electoral board, which shall not be less than one hundred dollars for the secretary and twenty-five dollars for each other member of the board. The counties, cities and towns shall furnish the necessary postage and stationery, including a bound book for the minutes of its proceedings, for the use of the board. Each member of the electoral board, before he is entitled to receive any amount under this section, shall make out a statement under oath, of his claim, and the secretary shall, in addition, make out under his oath, a statement of postage and stationery used by the board, and the statements when so made out and found correct shall be paid by the governing body of the county, city or town for which the board was appointed and for which the service was rendered or expense incurred. (Code 1887, p. 70; 1908, p. 538; 1910, p. 531; 1912, p. 652; 1923, p. 175; 1926, p. 872; 1928, pp. 769, 770; 1940, p. 177; 1944, c. 390.)

Effect of Amendment of 1944.-The amendment made this section applicable to towns, increased the compensation from five to six dollars per day, inserted the provision relating to any county adjoining a city having a population of more than one hundred and ninety thousand, and added at the end of the section the words "and for which the service was rendered or expense incurred."

§ 94. Secretary of Commonwealth to prepare and distribute books for registration.

For act authorizing registration in cities of between forty and fifty thousand population in loose leaf binders, see Acts 1944, c. 393.

§ 98. When voters registered; duties of registrars; their pay.-Each registrar in the cities and towns of this State shall annually, on the third Tuesday in May, at his voting place, proceed to register the names of all qualified voters within his election district not previously registered in the district, in accordance with the provisions of this chapter, who shall apply to be registered, commencing at sunrise and closing at sunset, and

shall complete the registration on the third Tuesday in May. Thirty days previous to the November elections each registrar in this State shall sit one day for the purpose of amending and correcting the list, at which time any qualified voter applying, and not previously registered, may be added. He shall give notice of the time and place of all registrations for at least ten days before each sitting, by posting written or printed notices thereof at ten or more public places in his election district. The registrar shall, at any time previous to the regular days of registration, register any voter entitled to vote at the next succeeding election who may apply to him to be registered; and he shall receive as compensation ten cents for each name so registered on days other than the regular days of registration, the same to be paid out of the county or city treasury; provided that in counties having a population less than thirty thousand the registrar shall receive a fee of twenty-five cents for each name registered on days other than the regular days of registration, the same to be paid out of the county treasury. It shall be the duty of the registrar within five days after each sitting, to have posted at three or more public places in his election district written or printed lists of the names of all persons so admitted to registration, and at the same time to also certify to the clerk of the district court of the county, or the corporation court of the city a true copy of such list, and to have like list posted on the day of the election at the place of voting in his election district.

And it shall be the duty of the clerk, upon receipt of such list, to forthwith record in a suitable book, to be kept in his office for that purpose, the names of the registered voters so certified, in alphabetical arrangement.

For making and certifying such lists the registrars shall be allowed three cents for each ten words, counting initials as words, and the clerks for recording the same shall be allowed two cents for each ten words, counting initials as words, the same to be paid out of the treasury of the county, city or town.

Whenever the name of any registered voter shall have been changed, either by marriage or order of court, the registrar in whose district such voter is registered, shall upon the written request of such voter enter the change upon the registration books, and certify the same to the clerk of the circuit court of the county or the corporation court of the city, as the case may be, who shall record the change upon the books kept in his of fice. (Code 1887, § 78; 1902-3-4, p. 565; 1906, p. 571; 1916, p. 770; 1928, p. 1276; 1944, c. 391.) The 1944 amendment inserted the proviso to the fourth

sentence,

§ 107. How registration books purged. The electoral board of every county or city may direct the registration books of any precinct to be purged whenever they deem it proper, and they shall direct such purging of the registration books of every precinct every six years. When such books are directed to be purged, it shall be the duty of the registrar within ten days previous to either of the regular days of registration, to post printed notices at not less than three places in the district, including the voting place therein, of the names of all persons

who, in the judgment of the registrar, or those who may be alleged by any three qualified voters of the election district, to be improperly on the registration books of that district. The notice shall be signed by the registrar. On the regular day of registration, the registrar shall hear the testimony produced for or against the right of the persons, named in the notice, to be retained on the registration books, and if he be satisfied that any person mentioned in the notice has removed from the election district, has died, or for any other reason is not entitled to be on the registration books of the district, he shall strike his name from the registration books. If the registrar is unable to hear the evidence in reference to the names alleged to be improperly on the registration books on the regular days of registration, the books shall be kept open as to such names only until such hearing is completed. From the decision of the registrar whereby any person is stricken from the registration books, such person shall have the right of appeal, as provided in section one hundred three, and from the decision of the registrar refusing to strike from the registration books any person alleged to be improperly on the registration books, any qualified voter of the county or city shall have the like right of appeal. Whenever any person's name has been placed upon the registration books of any election district, and an election, either general or special, is appointed to be held in the district at such time that no regular registration day will intervene between the time when the name of such person is posted as required by law and the election, then it shall be lawful for three qualified voters of the election district to appeal to the circuit court of his county or to the corporation court of his city, or the judge thereof in vacation, from the action of the registrar in placing such name on the registration books. Such appeal shall conform, as far as practicable, to the provisions of section one hundred three, and any person whose right to have his name remain on the registration books is contested, shall have at least five days' notice of the time and place when the appeal will be heard, provided that this section shall not apply in any county or city having a general registrar.

When a general purging of the registration books is ordered, as herein before required, the registrar, after he has purged the registration books, shall make a copy of the books in like manner as provided in section ninety-one, leaving off all names stricken therefrom under the provisions of this section. (Code 1887, § 86; 1914, p. 430; 1944, c. 392.)

The 1944 amendment added at the end of the first paragraph the provision that this section shall not apply in any county or city having a general registrar.

§ 107b. Purging of registration books in counties and cities in which there is a general registrar. -1. The electoral board of any county or city in which there is a general registrar may direct from time to time that the registration books of any precinct therein be purged whenever they deem it proper, regardless of the regular registration days as provided in section ninety-eight of the Code of Virginia, and they shall direct such purging of the registration books of every precinct once in every six years.