Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1896-12-03

there Is no other ADEQUATE remedy
These gentlemen have alleged 10 theii
answer that there is other adeauat,
remedy. Do your honors know wha
4 this other remedy isY We. do not
They must state the facts and aver th,
facts to be true They must aver tina
there is specific and adequate lega
remedy. The injury is that the boart
Il OF canvass did not take into cousidera
tion all the returns presented to them.
1t is nowhere denied that these mer
we're elected as claimed and set forth
in the petition. The only remedy fol
this failure on the part of the bonrd tc
do its duty is the forcing under lega
compulsion, il necessary, of the board
to do their whole DUTY in the promises.
The code of 1888, chapter %. page 22S,
provides for the issuance of the writ Of
mandamus prayed for under the exact
contention that we make. Again, |
would call your attention to a case in
Twentieth Pickering, in which the
board threw out the votes alleged to
4 have been cast for one man and gave
| them 10 another person. The man was
q candidate for county commissioners.
Certain votes were cast for Elisha
Strong OF Northampton, others for
Elisha Strong, 1t was decided in this
| case that the remedy existed in one in.
stance through quo warranto proceed
| ings and in the other through man
damus. This latter is one of the lead
ing cases on mandamus in the United
States, wherein the Judge directed the
election officials to count the votes.
Mr.. Hayes next referred TO South
Dakota case, 10 which the contention
was regarding the vote Of soldier, cast
while he was detailed OF a government
reservation.
Continuing he said: "We have had
a case In our own State, in which the
/ Chancellor has decided Substantially
the same as in the causes mentioned
above. The fact that the canvassing
board has already rendered decision
is no reason why 1t should not be re-
quired to reconvene and recapvass the
vote in accordance " it'll the rules that
are adjudged to be right and proper. "
MIR. Hayes next reference was to a
Nebraska case. and he laid particular
stress upon the fact that William Jep.
nings- Bryan was interested in IL as
counsel. Mr.. Hayes then cited some
authorities on constitutional limita-
tions and endeavored 10 show that
there were Inconsistencies in the return
OF the respondents.
Judge Grubb again interrupted, say
ing that ii the return should be in.
sufficient in law he could not recover.
II am only calling your attention to
this fact, said the judge, ito avoid
complications in the future. -
We only ask, - replied Mr.. Hayes,
that these respondents be compelled
to canvass the votes as cast in this
county in accordance with the Law.
They have thus far shown no reason to
justify their action in refusing to cal
culate the vote. while their action has
practically disfranchised 5000 voters in
Kent county,
Mr.. Hayes closed, having occupied
three hours of the time allotted to the
relators.
Mr.. Pennewill followed, prefacing
his remarks with tho statement that
Mr. Ward would make the closing adj
dress and that ne, himself, would say
but few words. He said: 81 feel in
my own mind, | am sure. that the
court will be perfectly justified in rem.
dering decision az prayed for by the
REALTORS. The answer, il you strip it
of everything that has nothing to do
with the case, contains nothing but
the mere allegation that it did not
appear from the reading of the certifi-
Gates that they were properly signed.
II there is anything decided BY the
weight OF preponderancy iu this court
1t is that the duty OF board Of can
vass is ministerial and not judicial l
submit that there cannot be any con-
tention as to the meaning or intent Of
the statute bearing on this point, II
there was fraud and corruption prac
ticed at the late election in this
county, that ia entirely foreign to the
case in question. This act on the part
of the board of canvass would not have
been perpetrated had it not been for
the fact that the members thereof
were advised to do 30. Now, when |
say that alleged fraud and corruption
have nothing to do with this case |
am not an apologist for any condition.
But | do say that there is another tri.
bunal to which men who are guilty of
such offences are amenable. Bribery
and corruption will nor caunot cease,
! say, until the influential men Of
both parties agree to obliterate and
oppose such practices. 1t has been
suggested that in case of the reconven.
ton OF this board they would not have
any power because the certificates have
gone out. Tha board in such a con-
tlngency would have the power to open
the boxes and procure the certificates
therein. The authorities quoted are
overwhelmingly of the opinion that
the duties of this board were not com
pleted or discharged until the work
required from it was performed. These
officers were de facto inspectors any
way. Ihey acted as inspectors; they
ADMIT that they canvassed part OF
the vote. Now they come here and say
Ihat they were not inspectors at all.
They certainly held the election and |
came here for tho purpose of canvass.
ing the vote as INSPECTORS but seel, |
now to deny that they have besn I'm 20 |
this time what they really were. Is
THIS the proper remedy in this case? |
Inc writ OF lnandamus is an extra.
ordinary remedy-a remedy designed |
TO meet extraordinary emergencies
such is the fact in this case. There |
was and is danger that the ends of |
Justice might he defeated. When the |
law speaks of other adequate remedies |
1t is nothing more than that which we
ask for. Is there any other adequate |
remedy than that the hoard of canvass
he compelled to reconyane and count |
the vote of this county. There is no |
other course TO be pursued. Another
suggestion: Under any government of |
law there ought to be means of en-.
forcing said law. writ of uuo
warranto will not reach this case. IL
there ia no remedy to reach case