Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1897-05-13

turnable at p. m. Saturday, May 22d.
Stan Correspondence Of Gazette and Journal.
Dover, May 7.--Chief Justice Lore
yesterday delivered the decision upon
the application to compel the Kent
county board of canvass TO reconvene,
certify and announce the vote as cast at
the recent election. The decision was
in favor OF the Republicans, and ex-
Congressman Pennington, OF counsel for
the Democrats, st once gave notice of
writ OF error which was served on
Clerk of the Court Hutson shortly
afterwards. The order of tho court
commands the board OF canvass to meet
in the Kent county Court House on
Wednesday next, May 18th, at noon,
and CANVASS the vote. and the writ of
error is made returnable at 9 D. m. on
Saturday, May 22d. The regular term
I the court of errors and appeals is in
Tune next.
The full text of the decision fol.
lows:
State Elk. Rel, Samuel L. Shaw, VS..
Thomas Mccoy, ct al, Lore, G. j.,
April term, 1897. The peremptory writ
OF mandamus prayed for in this case ia
to compel the board of canvass of Kent
4 county to rscanvass the vote cast in
that county at the last general election,
held Oh the Sd day of November, 1896,
for the election of Governor. Senators,
Representatives, sheriffs and coroner
and other officers. The facts of the
case are mainly those set OUT in the
case OF the State Elk. Rel. Alec VS..
Mccoy, ct al. +; tried in the superior
court OF this county, and reviewed in
the court of errors and appeals January
4 4th. 1857. They need not again be
recited here.
The additional facts are: That pur-
suant to a paremEtory writ of man
damus, issued out OF this court, the
election officers of West Dover hundred,
on January both, 1897. made and signed
two certificates Of the election in their
hundred according to law. In ten other
election districts the csrtifica of
election under like peremptory writ
were completed March goth, 1897, 30
as to show for what hundred the
respective candidates for Levy Court
were voted for.
To the alternative writ of mandamus
issued in this case, the respondents
have filed their answer or return. The
REALTORS 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 the court
to quash the answer for the reason
that 1T is ambiguous, argumentative,
evasiys and insufficient.
The answer OF the respondents up to
and including paragraph II relates to
matters that are either immaterial or
settled in the previous determination
OF this election contest. They are,
therefore, eliminated from our con.
alteration.
The question remaining for us to
determine is the one raised by para
graph ID of the answer, which sets up
an act OF the General Assembly of this
State, entitled IAN act to amend chan
ter Is of the Revised Statutes" passed
at Dover April 10th, 1897; which act
repeats all those portions OF the chan
ter whiuh constituted the inspectors of
election board of canvass, and sub
stitutes liz lieu of them as such board
the associate judge, the sheriff and
register of Wills of each county.
1t iH commended for the respopdepts
that this act abnlishes the board of
canvass, of which the respondents
were part, and that there is now no
law under which they can be com
PEELED to reCanyass the returns of said
election; the statute having taken away
their functions as board of canvass.
Ehe Interpretation and effect of this
statute upon our Constitution and laws
relating to elections is the question
presented for our consideration.
The Constitution of this State pro.
vides for the election of Governor.
Senators ana other officers named, The
Constitution prescribes for the purity
and freedom of the elections, and the
bill OF rights provides that all elections
shall be free and equal.
The election of November Sd, 1896.
was held under the provisions of the
Constitution, which names the day and
prescribes the mode by ballot. Article
4. section !. BY the same section the
Legislature is by law to Prescribe the
means. methods and instruments Of
voting SO as best to secure secrecy, tbs
independence of the voter; preserve
the freedom and purity of elections and
prevent fraud, corruption and intimida.
tion thereat. +"
Under our form OF government
therefore, an election is the constitu
tional expression of the sovereign will
of the people, as to who shall be
their accredited agents to execute thu
laws. and to preserve their rights anc
liberties.
By necessary iintendment, therefore
an election under the Constitution, in,
wolves every element necessary 10 thu
complete ascertalnnent of such expres
sion OF popular will, embracing thu
entire range from the deposit Of th,
ballot by the elector up to the fna
asoertainment and certificaton of th,
result. An election by the peopl
means and includes the perfected ascer
tainment of such result.
Statutes may and do pre- vide th
means for ascertaining such results
Their function is to ascertain and no
to defeat such results. To carry int,
effect and not to annul constitutions
PROVISIONS. The act of April 10th, 1897
amends chapter IS by striking out al
those sections which constituted TIL
inspectors board Of CANVASS and sub
stituted the associate judge, sheriff AM
register OF wills of each county as sucl
board.
As to future elections, this act I'm
questionably provides new board O
CANVASS to ascertain and certify tn
results thereof. What is its effect
however, upon the election OF Novem
her 3D., 1896. which has not yet beef
certified, and under the decision of tn
court of errors and appeals could no
be lawfully ascertained and certified
with the vote of West Dover HUNDRED
out.
At the time Of the passage of tn