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


emphasize an unbroken current OF
authority.
We may not give it a retroactive
effect, uoless compelled to do SO by ex.
press provision. There is no such ex-
press provision. Even If there was, we
should be loath TO recognize the right
OF the Legislature to defeat constitu-
tional rights by such proceeding, and
would be constrained to say that such
| law was unconstitutional 1t would
| IN effect set the Legislature above the
Constitution. the creaturs above the
creator. Otherwise the Legislature
| after an election had been held, might
by law stop all inquiry into such al
election and cut off the ascertainment
OF its results. Keep out of office the
agents whom the people had elected,
| and keep in or put in office persons
whom the people did not elect, or whom
! they defeated. This would be setting
| aside the Constitution the Legislature
and not the people would become the
| electors; and a republican form of gov
eminent cease to exist. Under such a
| construction what would become of the
constitutional provision that such
officers should be elected by the people?
Such construction would embalm In
| judicial sanction the craft to devise
and the power to defeat the will of the
people at the will of the Legislature.
No thoughtful person can contem-
plate, without adherence, the possible
results OF such construction. 1t
would be political suicide, and finds no
| sanction either in reason or authority.
| Much stress was laid BY counsel for
| the respondents on the case OF State
| Ey. Rel. Bloxham rs. Board OF State
Canvass. ID Florida. 30. Where the
| court held in case very similar to the
one at bar; "that the hoard Of canvass
being special tribunal created by
statute, and their duties created by
statute. the repeal of the statute takes
away their function as capyassers and
| they can not proceed further 10 the
matter under any law, and therefore
they could not be compelled to finish
what they had commenced.
| We are unable to determine what
were the provisions OF the constitution
and statutes of the State of Florida
when this decision was rendered. The
| opinion of the court is very short and
| gives no detail. We have, however,
carefully examined the authorities re-
| ferred to in The case upon which the
court based its decision, and we find
that they do not support such con.
struction. One of these authorities,
Beebe VS.. O'Brien, 10 Wis 4sl, defines
| the three classes of cases in which re-
| peal of statute operates to defeat pro-
ceedings heretofore had under it,
which are as follows:
l. Where the statute repealed was
one creating the cause of action.
2. Where the statute repealed re.
lated to the remedy.
8. Where the statute repealed COR
ferred jurisdiction where it did not be
| fore exist.
In defining this Limitation Dixon
| 9. j. says: " A fter patient examination
OF all OF tho authorities upon this sub.
| ject within our reach, and which it is
deemed unnecessary to cite here, it is
believed none can be found going be-
yond the principles above laid down. -
| The cases cited in 18th Florida
namely, Springfield VS.. Hamdeu, Com
missioners of Highways Pick. sol;
Ihayer w. Lekey, IL Names, 2si: Saco
vs.. Quincy, "a Maine, Ii; Head vs.
the State, 36 Maine, 30; come under one
or other oil these classes and do not in.
volye the issue in the case at bar. The
decision is not sustained by the
authorities cited in ii, and is not 40
founded on reason as to command APP
proval. 1t seems to have been ope of
the decisions rendered in the early re.
construction period of that State 1871
following the Civil War, when society
and law were both very much unset
tied. We can not therefore recognize
this decision as Law. 1t is not founded
on reason, it is not supported by the
authorities cited in it, nor is any
reasoning of tie court given to sustain
it.
1t has been held and is we'll settled
that the enforcement of Judgment for
a penalty under penal statute may
not be stayed by the repeal of the statute
because the right to the penalty is
vested. How much less then can a re-
peal deprive the people of the vested
constitutional right to have their will
ascertained and certified.
The case at bar comes under none
of classes cited in the Florida case, IL
is one involving vested constitutional
right in the people, to hold an election,
aud TO have the results of that election
duly and fully ascertained and enforced.
1t comes rather within the principle OF
tho case of Couch VS.. Jeffries, Burr.
2460 an old and leading case, where
Lord Mansfield uses this language
Here is vested right, and it is not to
be imagined that the Legislature could
by general words mean to take it away.
1t can never be the true construction
OF this act, TO take away this vested
right"
The parliment of Great Britain is
omnnipotent yet in Sir Francis Barring,
toms case, s Rep, 1876 b; it is laid
down as an elementary principle, that
an act of Parliament shall never be &c
construed as to do injustice. Much
less then should an act OF the LegisIa.
ture be so construed as to destroy a
constitutional right. We must ever
bear in mind that in this State the
constitution is the supreme authority.
Admit the construction claimed,
, that the Legislature may thus annul an
election anu whers does it lead us;
The people at the polls may defeat the
party in power by decisive majority,
but still leave the election machinery
in the hands of the defeated party. In
ascertaining the election results the
defeated party may count only such re.
turns as are favorable to its continu.
; ance in power; may unlawfully certify
such finding, and give certificates il
pursuance thereof. When proceedings
are instituted in a court of justice t.
ascertain and enforce the verdict of tht
, people, it may then resort to techinca
! snbterfuges, writs of error and all othe,
dilatory methods known to accom-
pished advocates or within the range
.. OF acute politicians, and thereby delay