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

cation IN this state, Is preroRratlVo
writ In the supervising sense, issuable
exclusively by our superior court, not
of course but only in the exercise OF
sound judicial discretion. 1t is a
remedial writ, the appropriate functions
of which are the enforcement of duties
imposed by law. by officers and Others,
who either neglect or refuse to perform
their duty. The remedy is extraordinary,
and IL the right is doubtful, or the
duty discretionary. or the power to
perform the duty wanting or made
iquate. or il there be any ordinary
specific and adequate legal remedy.
this writ will not in general be allowed.
The right which it is sought to protect
must be clearly established, and the
writ is never granted in doubtful cases.
When substantial doubt exists as to
the duty whoss performance it is
sought to coercc. or as to the right or
power Of the officer to perform tine duty,
the relief will be withheld, since the
granting of the writ in such case would
under the power OF the court be nuga-
tory and fruitless. 1t is said to be discre-
tionary in the court TO grant or refuse a
mandamus; but discretion regulated
by the rules and principles Of law must
be understood; and not an arbitrary
and capricious discretion. State vs..
Bower, 3 Brew. $40. s. Carolina.
The alternative writ of maud anus is
usually regarded as standing in the
place OF the declaration in an ordinary
action at common law. Its first re-
quisite is that it should nuke out a
prima facie case emitting the party ag-
grieved to the extraordinary aid of the
court. Great strictness is requisite in
the form and contents of the alternative
writ. High FIX. Rem. p. 539.
The grievance of the complaint as
stated in the inducement of the writ
must be distinctly charged, since the
courts will infer no fault or dereliction
on the part of the respondent for the
purpose of sustaining the writ. 1t
must show upon its face clear right to
the relief demanded, aud the material
facts on which the relator re lied must be
distinctly SO. forth, SO that they may be
admitted or traversed by the return.
In this State the common law rule
prevails that the return to tho alter
native writ is conclusive and to he
taken as true for its purposes of the
case, until proven false in an action for
false return. State VS.. Viii. Bridge Co.
8 Hare. $40.
1t is generally competent for tho
respondent to set forth in his return
several distinct and separate defences
at his option. and il be prevails on either
of them, the peremptory writ will be
refused. But if they be- inconsistent or
repugnant tho court may quash the
entire return; yet it is within the dis
erection of the court to quash such
portions OF the return as it may deem
insult cient, and to allow tho rest to
remain. High Elk. Rem. Sec. 462.
The return to the alternative writ
must set forth either positive denial
Of the truth OF the allegations therein
contained, on which the relator Pounds
mis- claim for relief, or state other facts
sufficient in law to defeat the relator's
right. And in general the return
should contain positive allegations of
farts. and not mere inforences from
facts. An argumentative return, like
any other argumentative pleading, is
had. And return. as we'll as the
alternative writ, is faulty which states
mere conclusions OF law, without stat t.
ing the fact, SO that the court may
judge Of their sufiiciency where the in
consistent allegations OF the returns are
immaterial and, therefore, merely
matters of surpusage. they will not
have the effect of violating the return.
And where the insufliciency of the
returns is in the pleadings only, and
not in the matters alleged, in such case
it is held to be the better practice not
TO order tho peremptory writ, but to
direct the filing of fuller and more
complete return.
Judge Grub next proceeded to lay
down two general inquiries to be
considered:
l. Have the REALTORS clearly
shown that they are plainly en-
titled TO have the specific thing
done that is, the canvassing of
the votes actually given, and the maxi
ing ard declaring of the certificates of
the result Of the election throughout
the county, 10 aid OF which they ask for
this mandamus?
2. Have they shown that the alleged
board of canvass to whom this writ is
directed has the power to do that
specific thing?
Upon these points the opinion dwelt
at great length, concluding as follows !:
After all. the decision of the board of
canvass does not give or defeat the
actual title to the office. Its certificate
of the result of the whole election
merely gives prima facie evidence Of
the candidates election. If he fails
to obtain this, owing to the failure of
mandamus or other proceeding, he yet
has his resort to the proper tribunal
which determines not morely prima
facie, but conclusively. his actual do
lure title-where the legality and
validity of the election and the real
merits of the case eau alone be investi-
ated and decided. So that tenn
porary detriment only, and not I'm
irremedabe one, is really done him.
Unfortunately. it sometimes happens
that the canvasHers are compelled, on
the face of the certificates, to give to
candidates who have secured at the
election. by bribery or fraud, tho
prima facie evidence of their right to
the Office in controversy. This puts
such candidate in possession, with the
advantage of compelling his more
meritorious opponent to undergo the
disadvantage of contesring the formers
title and seat, and of mourning the
added Inconvenience, labor and expense
which, in justice, his repreheusible
competitor should himself bear In
the case of such candidates, tho in
ability of tho canvassers to give such
prina facie evidence of titlu may,
however, permit absolute Justice to
prevail, where human injustice would
otherwise succeed.
The peremptory writ, for the reasons
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