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

CeTtlucdpbb OF w CHI Dofbr nuuufeu, dB
we'll as of every other hundred Of the
county in which votes were actually
given, the board could not have the
power and ability necessary TO the
complete discharge OF tho duty com
manded by this writ.
Since the REALTORS have failed to aver,
and the said respondents have, in their
return, denied that said certificates
were ever made, signed and delivered
as required by law, 1t is not shown to
this court that said board had, or has,
the power necessary for the perform
ance of the duty imposed upon it by
law, now sought to be enforced by this
writ. Therefore, it should DO refused,
becauseif now granted it would prove
nugatory and unayailing.
That the plain, broad and mandatory
language of tho statute without OK
ception or reservation-as it stands,
imperativaly requires the board to
canvass all the votes actually given in
any hundred, exclusively upon the
evidence of the certificates thereof,
notwithstanding that 1T has not ex-
pressly provided any specific means for
compelling the making and delivering
OF such certificate when mono has been
made and signed, is unqusstionable.
But although the Legislature has thus
imposed duty which it has not speciti-
cally given the power to perform, yet,
Notwithstanding this omission, this
duty may be enforced by mandamus,
at the instance of tho board of canvass,
or amy member thereof. or any other
/ proper relator. against the delinquent
inspectors and Judges of any hundred
who have neglected or refused to make,
sigp and deliver the prescribed certifi-
Gates. That mandamus is allowable
for such purpose, was held In State
Elk. rel. Ferris vs.. Knight, OF al,
Houst. lag, which ruling was not re-
yersed when the same case was before
our court of errors and appeals. G
Houst. 2s3. Hence the REALTORS, il the
board failed to do 10, should, before
commencing the present proceedings.
have first applied to this court for u
preliminary mandamus against the said
election officers of West Dover hun
dred to compel them to furnish the re-
CURED certificates and thus enable the
said board to discharge lis duty. II
this would require the board of can
vass to adjourn beyond the first day of
its meeting after Che, election, there is
nothing in the statute to forbid il.
Section 80 of chapter is, Revised Code,
forbids the board to adjourn or separate
after it has calculated all the votes
given in the county, without fret
making the prescribed certificates of
result thereof, but il does not forbid
the doing so before it has completed
said computation. The statue COM
mands that all the votes actually given
in all the hundreds shall be counted,
but does not limit tho time within
which the duty shall be performed. The
law itself, therefore. inierposes no OBJ
stacle to the preliminary mandamus
against the delinquent poll officials to
compel the production OF the certifi-
Gates indispensably necessary to enable
the board to discharge its duty, and
thus record the will of the people as
really expressed in each and all the
hundreds throughout the county. Any
other construction would defeat both
the will of the people and the plain
purpose of the statute. If it be urged
that the possible delay thus occasioned
may prove both impracticable and
detrimental to the public interests, the
reply must be that the remedy is to be
brought in repeal or alteration of the
law, which is matter of Legislative
and not judicial discretion and power.
Judge Grub concluded by show
ing that the decision OF the
board OF canvass neIther gives nor
defeats the actual title to the Office;
and, therefore, II the candidate fails to
obtain the certificate of the board, then
he still has his resort to the court, or
other appropriate tribunal which finally
determines not merely prima facie, but
conclusively, his dc iure title, wherein
the real merits of the case and the
legality Of his election can alone be
triad -