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

| election Throughout the county. as
required by law, and commanded by
the alternative writ to do; and that
therefore the peremptory writ should
| not be awarded.
| After careful examination of said
respondents return, we are unable to
conclude that this ground aud portion
| OF said return should not stand as a
sufficient return by said respondents,
| plaintiffs in error. to the alternative
writ appearing OF record here. Ii this
much of said return ehould so stand,
then II was fatal to the application of
the REALTORS. For since the return lie,
under the established practice in this
State, taken to be conclusive of the
facts therein stated, it proses beyond
| question that the said board had not,
at the time said eremptory writ was
| awarded, nor heretofore, the power to
perform the alleged duty and do the
| SPECIFIC things commanded by the said
| writ.
But even il the entire return we're
| insufficient, yet If this ground of
| objection, viz: the want OF pc 3er to
| do the required acts is plainly disclosed
by the REALTORS petition and alternative
writ, then said court would not have
| emptory writ, and therefore should not
have done SO; because in that event it's
decision would be liable to review and
reversal for error manifest of record.
."In our judgment, said ground of
objection arising from ths- absolute
| failure OF the inspector aud judges of
West Dover hundred to make. sign and
deliver said prescribed certificates. as
required by law, is plainly disclosed
upon the face of the petition of the
REALTORS and of the alternative writ
| drawn in conformity Herewith.
Indeed, so far as the petition and
writ are concerned, il does not suf
ficiently appear that the prescribed
certificates of the election in the re-
spective hundreds and election dis.
tricts of the county were ever made,
signed or delivered in the form and
manner required by law by any of the
respective inspectors and judges of any
of the said hundreds or election dis
| tricts.
.'As already observed, the burden is
on the relator not only TO avor and show
| that they are entitled to have the
| specific thing done 10 aid of which
| they seek the mandamus, but also to
aver and show that those to whom the
writ is directed have the power to
do it.
In the pending case then the
REALTORS must distinctly and particu-
larly set forth, inter ALA, in their
petition and alternative writ, every
such fsct-and not mere conclusion-as
will apprise the respondents of what
facts they are to admit or deny, and
further enable the court to Judge
whether such facts warrant the inter
ference sought to be drawn theretrom.
Now. have the petitioners set forth
such facts, as, under the rules OF
pleading applicable to this proceeding,
will warrant the Inference that the
required certificates of the said election
in any of the several hundreds, and
especially in West Dover hundred. were
ever made, signed and delivered as
prescribed by law? Plainly not. In
section 6 of their petition and writ
| they allege 1t to be the duty of the
inspector and judges of every election
district to make, sign and deliver the
prescribed certificates, but they no.
whore aver that said officers in West
Dover hundred, or any of said hum
'dreds, have ever performed this duty in
| respect to said election. And this
bul} hO VI DTbbu1DBu Dy
the court to have been done in the case
before US. y
at ia true that they allege in
paragraph 10 OF section 6 of their
petition and writ, that the certificate
of election of each hundred where
elections were held was delivered to
the sheriff but they do not aver that it
was the certificate made and signed in
form and manner as prescribed by
law; nor do they aver that the ballot
box OF any hundred containing the
| duplicate certificate and duly secured
as prescribed by law was duly delivered
| to the sheriff for the use OF the board
as required by statute.
For the foregoing reasons, there
| fore, the insufficient averments of
these essential and indispensable facts
are inadequate to MAINTAIN the relators
case as presented in the said petition
and writ, and consequently present a
sufficient ground for the reversal of the
| judgment below. Without the requisite
certificates of West Dover hundred, as
well as of every other hundred OF the
county in which votes ,SHere. actually
| given, the board couldsnot have the
power necessary to the soompiets. dds
charge of tho duty eommanded7by ;said
writ. Since the REALTORS have failed to
aver. and the said respondents have, in
their return, denied that said certifi:
Gates we're ever made, signed and
delivered az required by law. itsissnot
shown to this court that, said. board had
the power necessary for -rthe perform-
ance OF the duty imposed on it by law,
and sought to be enforced by said writ.
Therefore it should have been refused,
because, il granted. it would prove
nugatory and unavailing.
That the Rlain, broai and manda-
tory language of the statute-without
execution, prnviso or reservation as it
stands-imperstively requires the board
TO canvass all the votes actually given
in any hundred, exclusively upon the
evidence OF the certificates thereof, not
withstanding that it has not expressly
provided any specific means for com
polling the making and delivering of
such certificates when none has been
made and signed, is unquestionable.
Hence the REALTORS in this cause, if
the board failed to do so, should have
| first applied to the court below for
such preliminary mandamus, before
resnrting to it for the present manda-
mus, in order to cothe the board with
the power indispensably necessary to
enable 1t to discharge the duty speci-
fed and commanded by the latter. 1t
is not sufficient objection to say that
there would not be time for both pro.
ceedingH, for this would be equally