The Wilmington daily Republican. (Wilmington, Del.) 1890-1902, 1897-05-03
Kent Mandamus Case.


Mr., Hughes, In opening the argumspt.
for the Democrats, laid Atress upon th8-
Aot that ten Of the ballQt boxes had been |
delivered since the last day Of February TO
theipspectors as Required by the cohrBr
and the petition Of the relator does mob,
except In one instance, aver that the boxea
are now In the SAME condition as when
placed In the custody Of the inspectors. q
Mr., Hughes argued mainly that the
ings, and that the time has elapsed for
them to obtain the redress asked for,
citing several authorities in support2f his
afgument, including Tapping and Short
Another point upon WHICH Mr.. Hnehes l
dwelt was that even should this obuft
command the board of canvass to reas.
semble and mako out certificates, such
certificates would be unavailing and tho
labors of the board would DO fslltl ess S4
which 10 Is sought TO obtain, Mr.. Hughes
asserted, have already boon filled, and the
board could not deliver ANYTHING. Z
The REALTORS had other adequate legal
remedy besides proceedings in flaudalnus
and that application fdf "a writ Of quo
warranto would have besii the proper pro-
cedure., The rights Of the public, he said,
in actions Of this character the only Der,
son or persons to be considassss are those
who are named. If the pubffs 81 the man
who cast bis vote has any inharent right,
he cannot obtain any redress by proceed.
ings In taandamus, as this is not the
means of trying tho title to an office.
Mr.. Hughes evidently struck snag
when no began his argument upon the last
averment In the respondents brief, WHICH
claims that the recent act of the Legisla.
ture abolishing the board Of canvass viii
ates the authority Of that body. Chief
Justice Lore and Judge Cullen both piled
him with questions which In their nature
were quasi-objective to the contention of
the young attorney, and which created the
impression that the court would have to
be fully convinced before they agree that
'the inspectors no longer constitute any
portion of the board of canvass of Kent
county"
He contended that after the last day of
February the sheriff was not legally re.
sponsible for the boxes, and that any ire.
sponsible person might have tarnpered
with them. Mr.. Hughes read from the
Revised Code the law governing the dis.
posal and custody OF the certificates of
ee9ton.
He maintained that the time had elapsed
wherin tho board of CANVASS could he com
PEELED to reConvene and perform the duties
asked in the petition of the relator, and
referred to the fact that the General As
sembly and constitutional convention had
met and passed upon the qualifications Of
their membership, and that the Lbvy
Court had also organized and performed
the various acts required OF that body.
Ex-Congressman Pennington closed sthe
address for the respondents. He claimed
that tho constitution proscribes the uuali.
LEGATIONS which o voter should have,
which clothes him with the election fran.
chise and throughout his address devoted
his remarks almost wholly to combating
the arguments Of tho relators' counsel.
They shall ascertain the number OF
votes cast for all the candidates for all the
offices" There is no reason why this board
should meet to ASCERTAIN the vote unless ii
is intended that they shall announce it,
The respondents have assumed in their ar.
gument to take up matters which had not
been averred In their answer and which
They had no right to do, therefore, he
would not touch upon any Of those mat.
ters referred to by the gentlemen on the
other side
Mr.. Ward in his address said they were
not here trying Il title, as no one voted for
1T the last election was party to this
Ease. The complainant is u citizsn-ths
sheriff to be sure-the State Of Delaware
and the people OF this county. What we
,sk he said is that board to which Is
delegated certain public duties shall be
$ no doubt that board Is required under
he law to ascertain the result Of tho votes
given for county treasurer.
In relation to the ballot.boxes Mr.. Ward
aid the court had nlroa1y passed upon
hat point by ordering the Inspectors and
'ther election officers to meet and muka
,ut certificates, which was done, and re-
urn made. Tho ballot boxes, he said
vero OF no use in this case except in the
bsence Of the certificates, though they
lave never legally left the posse ;sion Of
he officers of eleobion.
As to whether the board is fllnctus offlcio
II not, this court and also the Court Of Al.
'oals In the Mccoy case said that 1t had
lot completed Its duties until 1t had fully
reformed them. There is not tho least
oubt but what the state of tho last cleo.
ion In Kent county could be ascerta'ned
nd determined from the face Of these Ger
iflcates-it is a mere matter Of addition.
A man who Is qualified to vote under
he law has right to demand that the vote
G counted and the result declared.
He called the attention of the court to
be fact that in the above case there WINS
o re- enactlnont--silnply a law Of repeal.
nd if the Legislature of our State has
My wipol the law creating the board OF
anvass from the statute books there
7ould be very little doubt about les moan
lg, although that also would be EnCOn-
jituLional. He declared that seven NOM
erS Of the House and q senator sat there
Tho knew that tho result Of the election.
as never been declared.
Mr.. Ward conrlusivcly answered the ar
ument Of Messrs Hughes and Bennington
the avcrmcnts in the petition
,latlng to making ont certitl Gates for
)unty treasurer by evadlns the prayer of
le petition and the command of the alter.
atvo writ They both showed that tho
ourd of CANVASS was only asked aud DOM.
handed to make tho certificates III accord.
nee with and required by tho laws Of the
tate of Delaware"
Mr.. Ward quoted from various uuthori
es to show that tho Legislature was not
'sted with inherent powers and had no
lthority to pass my law not provided by
10 constitution or in conflict herewith.
he Legislature has right to pass laws
n the protection and purity of elections,
ut no right to pass u law intended to
,actically nullfy tho elections.
Mr. Ward quoted case from "Morrill
/ Mandanus," State VS.. Gibbs, which he
id was slightly similar to The present
$50, aud in which the Florida Legislature
III repealed an election law and tho court
'cidcd that i'll tho action in mandamus
10 parties had no standing because the
lard no longer existed.
Counsel OH the other 81 SO hal evidently
lIy read u recital Of mlttsp Of low In the
,tti0n and had not noticed either the
'Ogrrs1 Of tho petition Or the command
theWrt.
Mr. Ward closed at O'Clock and tho
urt announced that decision would DO
ndered on Thursday next az 2o'clnck.
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