Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1896-12-10
POWER OF THE BOARD OF CANVASS.

Judge Grubb's dissenting Opinion In tho
Kent County Mandanus Cause.-The Power
OF the Board Of Canvass with Respect 10
Counting the Vote of the Last Election.
Below is summary of those portions
OF Judge Grubb's dissenting opinion
In the Kent county mandainus case
which were not included In the report
printed elsewhere In this issue;
In the determination of this case
Two general inquirio1 are to be con-
sidered: First, have the relatofa clearly
shown that they are plainly entitled to
have the specific thing done which
they have asked for in this maudamus
proceedingY Second, have they also
shown that the said board Of canvass,
to whom this writ is directed, have tho
power to do that specific thing, viz.
the canvassing OF all tho votes actually
given in all the hundreds of Kent
county whore an election was held on
November Sd last, and the making and
delivering of certificates of the result
thereof throughout said county,
The majority of the respondents, by
their returns showing cause against
The granting OF the mandamus, con
tend that the said petitioners have
failed to show that either of these
essential prerequisites to the granting
thereof has been shown or established.
On the contrary, said respondents
insist that, by reason of the several
causes set forth in their returns, said
board did not have, and has not now
the power to do the specific thing
which the said REALTORS pray for, and,
therefore, always have been, and still
arc unable to do It if this mandamus
will BIO awarded; and therefore 1t
| should be refused.
OF the several causes of said inability
specified in said return | shall con
slider but one only, az its determine
ton will, in my judgment, be sufficient
TO adversely dispose Of tho pending
application.
This particular cause OF inability
and want Of power in said board which
is urged by the majority Of the re
spondents as ground for refusing the
peremptory writ, is as follows: Said
respondents have clearly and specifi-
cally alleged in their return that. under
the plain and mandatory provisions of
the statutes in that behalf, IL was the
imperative duty Of the board Of can
vass, il 1t must be viewed 10 law and
fact, to be duly constituted board, to
canvass all the votes for each Office
hh'Sh hup pooh Eifob III dll Vi tHb
hundreds of the county for every person
voted for for such office at the aforesaid
election, and to make the prescribed
certificates of the result thereof, as re-
quired by law; that votes had been
80 given in West Dover hundred at said
election, but that the inspectors and
judges of said hundred did not then,
and have not hitherto, made, signed
| and delivered the certificates OF the
election In said hundred as required
by law, and that by reason thereof the
said board was and is unable to can
yass said votes and so, to this extern,
perform their duty of ascertaining the
state of the said election throughout
the county as required by law and COM
manded by this writ to do; and that
therefore 1t should not be awarded.
II this much Of said respondonts' re-
turn shall remain unquashed, and be
considered, as l now consider it. suf-
ficiently well pleaded, to this extent,
thon it lie positively fatal to the arpli.
cation Of the REALTORS For, since the
return is, under the established prac.
tice in this State, taken to ba CON
elusive of the truth of the facts therein
STATED, it proves. beyond quesiion that
said board had mot, and has not now
power to perform the alleged duty and
do the specific things commanded by
this writ.
But even il the entire return we're
insufficient, and should therefore be
quashod In toto, yet il this ground OF
objection viz. the want Of power to
do the required act. is plainly disclosed
upon the face of the relators' petition
and alternative writ, then this court
would not be warranted in awarding the
peremptory writ, and, therefore, II
should not do SO; because in that event
its decision would be liable to review
manifest failure Of the inspectors and
judges of West Dover hundred to make,
sign and deliver the certificates re-
quired by law is disclosed by both
the alternative writ and the petition
of the REALTORS, Ia incontrovertibe.
As already stated, the burden is upon
the relators to aver and show every faet
necessary to prove that those required
to do the specific thing commanded By
the writ have the power and ability to
do II.
Accordingly, in this instance, the rela-
tors must distinctly and particularly SGT
forth inter ALA in their petition and
alternative writ every such fact-and
not mere conclusion as will apprize
the respondents Of what facts they are
required TO admit or deny, and, fur
Their, enable the court to Judge whether
such facts warrant the Inference or con
clusion sought to be drawn therefrorn.
Now have the petitioners set forth
such facts as, under the rules If plead
ing applicable to mandamus, will war
rant the inference that the required
certificates of the election in West
Dover hundred or, indeed, in any of the
hundreds of Kent county. wherein the
late election was held, were even made,
signed or delivered as prescribed BY
law? Assuredly not.
In section OF their said petition and
writ they allege it to be the duty of
the inspector and judges of every
election district to make, sign and de-
liver the prescribad certificates, but |
they nowhere aver that said officers
either in West Dover hundred, or any
of said hundreds, have ever performed |
said duty in respect to the said late |
election. And this duty cannot be in |
fcrred or presumed by the court I'd have
been done in the case before US. High |
Elk. Rem. Sec. 53G. NF
4 II II
This fatal insuflciency OF the re-
lators' allegations is still moro clearly |
established by their several admits.
sions in their petition and writ that no
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