Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1897-01-07

For the provision of said section that
the sheriff or other presiding officer OF
the board shall issue his warrant to
obtain the certificate and the box con.
tanning its duplicate, when they are
already in existence but have not been
delivered ito him for the Use Of the
board, clearly imports that the board
may ascertain in, the absence Of the
official certificate, that votes have
been given and an election held in any
particular district; and therefore take
the needful steps to secure such certifi-
Gates. Because the legislature has not
expressly give the power to procure the
making, signing and delivering thereof
by mandamus against Ithe proper in.
spector and judges, 1t does not follow
that mandamus should not be invoked
for this purpose, as necessary pre-
liminary auxiliary to the mandamus to
compel the board in its turn TO count
such certificates in ascertaining the
whole vote given In the county. 1t is
more reasonable to inter thar the legis-
lature did not specifically give such
power because as must be presumed.
it was aware that mandamus was
already an existing remedy for such
purpose.
The people have right. as has the
individual candidate, to have their
will, as really expressed at each and
every poll, truly recorded and their
choice regarded. Unless the defaulting
inspector and judges in any election
district are compelled to furnish the
prescribed and Indispensable certifi-
Gates to the board, the latter cannot
perform it's duty, and thus the choice
OF the people as expressed at the polls
will be diaregarded and, possibly, be
defeated.
1.-THE present writ was awarded
December Sd. 1896. and made return
able on the 18th, but nine days after
ward-and thereupon the court ad-
journed to the latter day. There was
no prayer by the REALTORS or any other
person, for a preliiG mary mandamus
against the West Dover hundred
election officers TO furnish said board
with the certificates from said hun
dred, and hence no such mandamus
was awarded before the pending writ
was granted. Under these circun-
stances il was manifestly improbable
that the board could procure the said
certificates by means Of preliminary
mandamus proceedings. and discharge
the duties directed by the pending writ
and make it's return Of nbed len Co
thereto on the said 18th day of Decem-
Der. Consequently said board, to do
do so, must have depended upon the
voluntary making, signing and deliver.
ing of the requisite certificates by the
delinquent election officers of West
Dover hundred. But it is shown by
the respondents return that majority
of them had refused to do this and 1t
does not appear that prior to the
granting of said writ they hads ever
consented or shown any disposition to
do SO; nor does it appear by the record
before US that they had expressly
declared their readiness to do so, and
submitted themselves to the jnris-
diction Of the court below in such
manner that its commands ia that
behalf could be compulsorily enforced.
Otherwise even their consent--which
has not yet been shown---to furnish
said certificates, would not have war
ranted the presumption that they,
although public officers, would perform
such duties; and consequently would
not have warranted the granting of the
peremptory writ by the said court.
"This view was plainly expressed by
Knight and Kennedy VS.. Ferris 6
Houston, 1924. That case was a pro-
ceeding by mandamua against the
inspector and two judges Of an election
district, to compel them To make, sign
and deliver to the relator therein the
certificate of his election.
Chancellor Salisbury said: 1T
wont do to say that the petitioner
states in his petition that Pierce is
willing to do bis duty. The court can
not assume without his express ad-
mission of record that he would so act,
and upon such assumption award the
peremptory writ against the other two
judges. Courts do not, and should not,
so act. Their commands should be
such that obedience 10 them can be
enforced and not be dependent upon
the voluntary action of any one.
Finally it should be remembered
that the decision Of the oarl CT can
vass neither gives nor defeats the
actual title to the Office. Its certifi-
cate OF the result of the whole election
merely furnished prima facie evidence
of the candidates. election. II he
fails to obtain this owing to the
failure of mandamus, or other proceed
ling, be yet has is resort to the court,
lori appropriate tribunal. which finally
determines not merely prima facie but
;conclusively, his actual de jure title.
}wherein the legality and validity of
the election, and the real merits of the
case can alone be investigated and
decided So that temporary detriment
only and not an irremediable ono, is
really done him.
For the reasons herein stated, this
court considers that the judgment of
the court below awarding the per-
enlptory writ should be reversed.
And now to wit. this fourth day of
January, A. D.. 1897, it is ordered.
adjudged and decreed by the court that
the Judgment in this cause in the
court below be and tho same ia hereby
reversed, and that the petitioners below
pay the costs in three months, or
attachment, and that this judgment be
certified to the court below"
AS soon as the decision of the court
was known Walter H, Hayes tee.
eraphsd to H. II. Ward at Wilmington
instructirg him to ask the Chief
Justice TO issue mandamus COM
pelling Thomas Baxter, inspector of
West Dover hundred to make, sign and
produce the rtificate of election, as
The mandamus will be issued to-
day, certified to Prothonotary Ilutson
of Kent county by the Chief Justice,
and argument will be, fixed for the
after part OF the week.
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