The Wilmington daily Republican. (Wilmington, Del.) 1890-1902, 1897-05-07
The Mandamus Case.

to-day when the Superior Court decided
that the Kent county Board Of Canvass
must meet and canvass the vote. as re-
quired by law. The Democratic attorneys
at once took out writ Of error, but the
case will be heard in the Court of Errors
and Appeals on June 12 The Board of
Canvass was ordered to meet on Wednes'
day next at noon, but the writ OF error
will of course prevent this meeting.
The Democrats had based their whole
case upon the law which the Legislature
passed on April 16 last, abolshing the old
board Of canvass. The court decided other
wise, however, and the Democrats are very
unhappy.
Walter H. Hayes, the counsel for the
Union Republicans, was present when tho
decision was read and the Democrats were
represented by John b. Pennington.
When the decision had been read Mr..
Hayes said that ho had prepared an order
of the court for the board Of canvass to
meet on Wednesday next and IL was issued
He then called attention to the fact that
under the new law the writ Of error must
be taken out at once and this was done
Chancellor Nicholson issued the writ, rc.
turnable in thirty days from the date, and
Coroner Walls at once served the writ
upon ProthoEOtar Hu.son.
The decision of the court was read by
Chief Justice Lore and was as follows:
The peremptory writ prayed for in this case
is to compel the Board OF Canvass of Kent
county to recanvass the vote cast in that
county ut the last general election, held
on the Sd day of November, 1896, for the
election of governor, senators, representa-
tives, sheriff, and coroner and other otli-
GERS.
The facts of the case are mainly those set
out in the case of the State Ex Rel. Alleo
VS.. Mccoy ct al; tried in the Superior
Court OF this county, and reviewed i n
the Court Of Errors and Appeals, Janu-
ary 4, 1897. They need not again be recit-
ed here.
The additional facts are: That pursuant
to pcremptory writ of mandamus, issued
out Of this court. the election officers Of
West Dover hundred, on January 30, 1897
made and signed two certificates of tho
election in their hundred according to
law In ten other election districts, the
certificates of election under alternative
writ, were completed on March 20, 1897, SO
as to show for what hundred the respec-
tive candidates for Lovy Court were voted
for.
TO the alternative writ of mandamus is
sued in this case, the respondents have
filed their answer or return. The relators
claim through their counsel, that upon the
face of the answer. on the respondents
own showing that the peremptory writ
should be awarded; and by his counsel has
moved to quash the answer, for the reason
that it is ambiguous, argumontatve, eva.
siye and insufficient.
The answer of the respondents up to and
including paragraph IL relates to matters
that are eli ner immaterial, or such as have
been passed upon and settled in tho pre-
vious determination of this election con-
test. They are therefore eliminated from
our consideration.
The question remaining for us to deter
mine is he ono raised by paragraph l3 of
the answer, which sets up an act of the
General Assembly Of this State, entitled.
"An act 10 amend chapter Is Of the Re-
vised Statutes" passed at Dover on April
IL, 1887; which act repeals all those por.
tons OF the chapter which constituted the
inspectors Of election, Il board of canvass,
and substitutes in lieu of them as such
board the associate judge, the sheriff and
register Of wills of each county.
IL Is cUnt"nded for the respondents that
this net abolishes the board of canvass, of
which the respondents We're part, and
that There is now no law under which they
can be compelled TO reCAMvass the returns
OF said election; the Stai rlto having taken
away heir functions aS board of canvass.
The Interpretation AMI effect OF this
statute upon our constitution and laws re.
latlnB TO elections, Is the question present.
cd for our consideration.
Tha constitution Of this State provides
for the election of governor, senators and
other olliccrs namOd The constitution
prescrlbos for he purity aud freedom Of
The elections, and the bill OF rights pro.
Vides that all eleotions shall be FREQ and
equal.
The election of November g. 1895, was
held under the provisions Of the constitu-
ton, which names the day and prescribes
the mode by ballot.
Art 4, sect.1. By the same section the
Legislature is by law to Prescribe the
means, methods and instruments OF voting
SO rs best to secure secrecy, the independ'
ence OF Inc voter; preserve the freedom,
and purity OF elections and prevent fraud,
corruption and intimidation thureat."
Uhdtf our form OF government there
lore, an election is the constitutional ex.
preston OF he sovereign Will OF the peo.
pie, US to who shall be their accredited
agents 10 execute the laws ana TO preserve
their rights and liberties.
by necessary lntendm0nt therefore nn
election under the constitution involves
every clement necessary to the complete
aSccftalhM Ment OF such expression OF popu.
lar Will; embracing the entire range, from
tAe deposit OF Inc ballot by he elocior, up
10 the Enal aSccrtalhinent anu certIhgatIon
OF the result. An election by tho people
means and includes the perfected hsCer-
t3lnment OF such result.
Statutes may and do provide the means
for asCertahing such results Their funC-
tloh Is 10 ascertain and not to defeat such
results. IL carry into effect and not to
annul constitutional provisions. The act
OF April IT, 1877, amends chapter 49, by
striking out all those sections which con
stltuted the inspectors board Of CANVASS,
and substituted the associate judge, sheriff
and register OF wills OF each county as such
board.
AS to future elections this act unques-
provides o new Board Of Canvass
to ascertain and certify the results thereof.
What Is Its effect, however, upon the cleo
tion of November 3, 1887, which has not |
yet been certified, and under tho decision |
Of the Court of Errors and Appeals could |
not be lawfully ascertained and certified |
with the vote of West Dover hundred out
At the time of the passage of the last
named act the election of November
had been held under the constitution.
The choice of the people had thereby
been expressed by ballot under the cOnsti-
tuition; but the result had not been law.
fully asccrtained and certified Under
this condition of facts does that act stop
oil further inquiry into and annul the e.
lection Of 1872 Unless 1t can be lawfully
ascoltaincd and certified it Is annullGd in
asmuch as no lawful ascertunmunt has