Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1896-12-10

peremptory witt OF madAmus should DO
awarded.
JUDGE oRpBB pIssENTs.
Judge Grubb read dissenting
opinion. He said: H.
The learned counsel, in thoir
respective arguments, uttered their
views in eloquent periods and with i'm
passioned defamation, but shall
confine myself to a calm, judicial
exposition of the law of mandamus as
it is, and not as we or others would
wish it to be. The enactment or
alteration of law is within the province
of the legislative department. and not
of the judicial branch of our govern
ment.
The REALTORS in this proceeding, 10
their petition for the mandamus prayed
for claim to have been elected to GER
tain offices at the recent general
election in this county, hold on Tues
day, November Sd, 1896. They ask
for the mandate of this court to the
sheriff and others whom they allege to
be the board Of canvass for this county,
to compel them as said board to
reconvene and recanvass the votes cast
therein at said election, and to make
and deliver pursuant to law certificates
of their election respectively 10 said
Offices. During the course Of this
particular proceedings much has been
said about tho alleged bribery, vioien CO
and lawlessness attending said election
and which it is eontended by the
respondents, has invalidated the alleged
election of the REALTORS, and debars
them from any legal title to the Offices
they now claim.
But it is we'll settled that in man
damus proceedings the title to an
office cannot be inquired into and
determined. Therefore in the pending
proceedings this court can neither de,
termine the validity of the title to any
of the offices now claimed, nor the
legality of the election wherefrom alone
each title can be derived. We can
merely decide who is entitled to have,
not the actual title but merely the
prima facie evidence which the de-
sired certificate is, of the title to each
office in question. We are not now either
called upon or permitted to decide
whether or not these claimants have,
through honest or dishonest methods,
or by lawful or lawless means at the
said election. obtained their alleged
right to certificates of their election
from the board of canvass. Nor can
we in this proceeding inquire and
determine whether Or not they seek to
take advantage of their own wrong ami
therefore misuse this remedy which
was designed to undo and not to up.
hold wrong. Al we cannot determine
the validity of their title, and to thar
end inquire into the legality of their
alleged election, therefore we can not in
vestigate and pass upon the real merits
which lie back of their present claim
to certificate merely, and can be
reached only by contest of their
actual title through some other pro-
cedure and before the appropriate
tribunal.
Our inquiry within the scope Of the
pending procedure is very limited. 1t
is solely to discover whether or not
the board of canvass has duly ascer-
tanned the state of the election held
throughout this county on November
Sd. 1896, by calculating the aggregate
amount OF all the votes for each office
which shall have been then given in all
the hundreds of the county for every
person voted for for such office; and
after the state of the election shall
have been ascertained by calculating
the votes as aforesaid has made and
delivered the prescribed certificates
thereof in form and manner as required
by law.
The board of canvass in each county
OF the State has been constituted and
empowered by statute as q suitable
fundamentally for this convenient
purpose. 1t is composed of tho sheriff
as rres ding officer and the inspector OF
the election in each hundred or
election district. Pursuant to the
statutory provisions. il is the duty OF
the inspectors and judges of every
hundred and election district in the
county to make and sign certificates OF
the election in. their respective hun
dreds and districts according to the
form in said statutes provided, stating
every office for persons to fill
which votes had been given at said cleo
ton, the name of every person to whom
any vote had been given for such office,
| and the number in words at length of
votes given to such person for the
said office. Provision is furthertmade
for the delivery of such certificates
for the use of the board of canvass
when engaged in the discharge of its
duty to ascertain the state OF the
bltCIlDu tut MS
aforesaid. Such certificates are the sole
and exclusive evidence from which the
said board can ascertain the said etate
of the election throughout the county.
In discharging said duty the powers of
said board are in general minister
ial, and not discretionary or judicial
in their character, which said board of
canvass must necessarily determine,
but such certificates are genuine and
not fabricated, and are made and signed
in the form and measure prescribed by
law; yet said boards of canvass 10 this
State are not empowered, and have no
lawful authority to inquire into the
validity of the elecrion in any hundred
or election district; nor into any irregu-
larity or misconduct attending any
election therein; nor into the legality
OF any vote or votes given therein; nor
to throw out, nor to refuse or fail to
count any vote or votes appearing 10
have been given therein, upon the face
of the said certificates of election duly
made and delivered to said boards in
the form and manner prescribed by
law.
On the contrary, it is their plain and
imperative duty TO promptly discharge
said task of ascertaining tho state Of
the election throughout the county as
aforesaid, from the evidence furnished
exclusively by said certificates. And
il is the further duty of any such
board, when it comes to their know
ledge that the inspectors and judges of
anv hundred or elpction liatriot hava