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

odAetlo ubCilBbu 10 grant Tue IlOllOl
to quash the alternative writ of man
damus requiring the Kent county
board OF canvass to reconvene and
count the vote of the recent election.
Judge Grubb dissented, in the follow
ing opinion:
1t is necessary for me to say to the
counsel representing all the partiea in
this proceeding that | feel constrained
to dissent from the decision of the ma
joiity Of this court and to state my
reasons for 30 doing.
The counsel for the majority OF the
respondents have moved the court to
quash this alternative writ of man
damus and have presented several
grounds in support OF their motion.
Owing to the supposed urgency of this
case, | have not had sufficient time
duly to investigate and rons ider all the
questions of law presented at the argu.
ment yesterday, but as, in my iudg-
ment the determination OF one of these
questions will dispose OF the pending
motion, l will restrict myself to that
and briefly express my views respect
ing 1t.
/ am thoroughly convinced that this
alternative writ should be quashed be-
cause Samuel l.. Shaw. the sheriff of
Kent county, was made party to the
alternative writ when he was not, and
has not yet been named either in the
petition OF the REALTORS or in the rule
to show cause issued thereon.
He has pretended to make himself a
party simply by his own official return
endorsed on the rule which was issued
against all the other defendants to be
served by him as sheriff, but not
against himself. He has thus pre.
tended to make himself party re.
spondent BY his own unauthorized act,
when neither he himself has, nor have
the respondents or the REALTORS, asked
or obtained leave for this purpose, or
asked or obtained leave OF the court TO
amend the petition and rule for said
purpose.
IL this is allowable in this case then,
in any ordinary form of action, any
stranger could az we'll intrude himself
and become a party plaintiff or defend.
ant to private suit against the desire
OF the actual parties and without leave
OF the court. For this mandamus pro-
ceeding is brought by the petitioners
to assert a. private right to offices of
greater or less pecuniary value, and in
their individual and not their public
character 1t is in this respect, there
fore, similar to any other private
action. And hence it is utterly absurd
to bold that the said sheriff can by his
own mere volition and unauthorized
return, thus make himself a party to
this alternative writ. In adopting this
course, the sheriff and his counsel have
relied upon an absolute instrumentation
Of Chancellor Saulsbury's opinion
in Knight & Kennedy va Ferris
decided in our court of errors
and appeals and reported in Houston
PIP. 322-24. wherein he reviews the
case OF State Va. Jones, ct AL, l
lredelps Reports 1879.
In said lredell case the court there
held that the writ OF mandamus should
be directed to all the persone whose
duty il was to perform the acts re-
quired, though some of them might be
applicants for the writ. In that case
there were seven commissioners whose
duty 1T was to do specific act. Three
OF the commissioners filed petition
for a mandamus to compel the other
four IN concurrence with them, TO per-
form the specific duty, and an alterna-
tive mandamus was issued directed TO
the four only, which was returned with
an admission of service by the three
petitioners and an expression Of readi-
ness to perform their duty; whereupon
a peremptory mandamus was ordered.
1t was held that the ORDER for the per
emptory mandamus was against ali,
and that the proceedings were suIli.
Gent although the alternative writ was
directed to the other four only, and did
not include and was not directed or
addressed to their other three col
leagues.
But in this Iredell case the court az
Dressly call attention to the fact that
the petition, in conformity with which
the alternative writ issued, contained
the names of all the seven commits
sioners and also prayed that the writ
OF maadamus be directed to all of
them. Chancellor Salisbury. in Knight
d. Kennedy vs.. Ferris, 6 Houston 1923,
also particularly notes this fact and
relies upon this distinction in the
differing case then before him.
This case now before US here, also
differs from the Iredell case in that
the name of Sheriff Shaw was not in
.cluded as correspondent in either the
petition or prayer Of the REALTORS, or in
the rule to show cause issued in con
formity Herewith. Nor can it be go
included in the alternative writ which
must also be in conformity Herewith.
AS this case stands, therefore, he ia
not rightfully or lawfully a party to
these proceedings, and there is nothing
IN either the Iredell case, or in the
Knight & Kennedy We. Ferris case to
warrant the view of the sheriff, or of
the counsel for him or for the relators,
that he has legally been made proper
party respondent in either the rule or
the pending alternative writ. Such a
contention or claim is absolutely un-
tenable. Hence this alternative writ
now stands, in legal contemplation, as
II his name did not at all appear any
where within it.
According to the rule declared and
established in Knight &c Kennedy VS..
Ferris, in our court of errors and an.
peals, which is binding upon this
court, the mandamus must include and
be directed to all whose duty it is to
do the specific act, tho performance of
which is commanded by it, or it will
be fatally defective. Sections "a, 20
and 20 OF Chapter Is Rev. Code, pn.
1883, expressly declare that both all
the inspectors and the sheriff of this
county shall constitute the board of
canvass and shall ascertain the state of
the election and make and certify the
result thereof in the manner prescribed
by law. Therefore, as this alternative
writ does not, in legal contemplation,
contain the name OF Sheriff Shaw in
addition to the names of all the several
inspectors therein specified, 1t is in
Hail. \ r. Al 1