Evening journal., 1894-02-24
LEE CASE IS BEING ARGUED.
EX-sEcRETARY DENIES THE RIGHT
TO ELECT HIS SUCCESSOR
on Any Day Hut That Designated In the
Act Taking the Power 20 Elect Frsm
tho City Council.

tho City Council.
A decision was rendered In the Super
Tor Court, this morning, In the case Of
William Dougherty VS.. Daniel r. H.
Turner. Helen Q. Turner, Mary l. Bay
ard, tenant, In possession. II was on
rule for a writ Of possession. j. Frank
Blggs represented the plaintiff. The rule
was made absolute with a stay Of execu-
tion until March 25.
Argument Of the case stated OF VIII
liam II. Lee vs. the Mayer and Council
Of Wilmington then began. Peter l.
Cooper, Jr., represented Lee. City
Solicitor Elliott and ex-City Solicitor
Charles IA. Curtis appeared for the city.
Mr.. Lee was secretary Of the city Board
Of Health and register of deaths, Lirths
and marriages He was elected by City
Council. The General Assembly passed,
on May 10, 1891, law transferring this
power Of election from City Council 10
the Board OF Health The act provided
that he should be elected on the first
Thursday In May, which would have given
Mr. Lee year more In office had net DIR
Shortlidge and his Republican colleagues
forcibly elected him on June 3. drilled
open the safe and installed Secretary
| Colquohoun, a Republican, In his stead.
Lee entered suit for his salary until
the next May, on the ground that the
Board Of Health had violated the statute
In holding the election on any day but
May l. He WAS offered salary for three
days and refused It,
City Solicitor Elliott contonded In
court this morning that IL was remedial
statute Therefore that 1t should be
be literally construed
The court said the question involved
was whether the Board of Health had
the right to elect the secretary on any
other day excepting the FIRST day OF May.
The position assumed by the city was
| four fold:
First-That the plaintiff cannot, in
this action by the question Of his right
to the Office, bring collateral proceed
ing.
second-That the Board Of Health had
the legal right and power on June 3,
1891, TO elect a successor In Office to the
plaintlf under the act OF May IA,
| 1891, aud that he was from
the time Of his election and quail
fcStion the de jure as well as the de
facto secretary Of the Board Of Health
and city registrar, and. as such, registrar
of deaths, births and marriages, and
that the plaintiff was not the de jure
officer, as he certainly was not the de
facto officer, during the time for which
he claims the salaries Of the Offices.
Third-ThRt even admitting that the
plaintiff was the dejure officer by reason
Of the absolute invalidity of the election
OF his successor, who became the de facto
officer, still the p'aintih is not entitled,
In this proceeding, and under the facts In
this case, to recover the amount Of the
salaries attached TO the offices.
Fourth-ThRt the cause Of action is
wrong and the declaration is insufficient
in law, being based on a contract express
or implied, whereas, as matter Of law,
the right infringed is not right arising
by contract, express or implied.
Mr.. Cooper contended that statutes tC
, remove corporate officers should bs
strictly construed. That although there
is no vested right in an Office which may
not be disturbed by legislative enactment
yet to take away the rights thereto the
terms Of the statute in which the pur
pose Is stated must be clear That man
! datory statutes exclude any other way
, Of complying with the statute than thai
named In the statute Is illustrated by the
numerous cases where statutory rights
! anu teAuouAco oAp bifoh IL ANoPNS" ~
: which the statute must b'
strictly pursued. A construction to giv'
statute a prospective operation
Is always to be preferred. unless a pur
pose TO give it a retrospective force j
Expressed by clear and positive command
or 10 be inferred by necessary, unequiYo.
. cal and unavoidable implication from tn
words of the statute taken by themselves
and in connection with the subject mat
! ter, admitting Of no reasonable doubt
! but precludlng all questions IS to sucl
!, intent
.rhe court reserved its decision.
|. On application of Martin b. Burris tn
Judgment in the case Of Bedford K
Vaughn VS.. George H. Houston, wa
stricken from the record
9 Court adjourned until Monday morn
} ing at 10 o'clock.