Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1897-01-07
! Decision will be given on Monday a,


Dover, Jan. 5.-Court Of errors and ap
peals yesterday reversed the decision Of
the superior court. wherein the latter
body bad issued writ OF mandamus
commanding the board of canvass Of
Kent county to reassemble and canvass
the vote cast at the late election.
Chaucsilor Nicholson presided and his
associates were Judges Grubb and
Marvel. The Chancellor, after stating
the purpose for which the court mad
assembled. announced that Judge Grubb
had been assigned TO prepare the
opinion of the court, and that it would
be read By him.
Judge Grubb, after referring to the
prayer Of the relators, said:
During the course of this particular
proceeding much has been stated, as
appears 10y the record, about the
alleged bribery violence and lawlesspess
attending said election, and which it
is commended by the respondents in.
validated the alleged election of the
REALTORS, and debars them from any
legal title to the Offices they now claim.
but it is now we'll settled, as was
correctly and unanimously declared by
the court below. that in mandamus
piuCecuiDHS TUG lttlo u dD UlllCt eau
not be inquired into and determined,
and that, therefore, in the pending
proceeding said court could neither
determine the validity of the title to
any of the ofiicse therein claimed, nor
the legality of, the election wherefrom
alone such title can be derived.
1t could simply decide whether or
not said board of canvass possessed the
pOwer and had duly discharged it's
statutory duty to determine who was
entitled to have, not the actual title,
but merely the prima facia evidence
which the certificate is-of tine title
to each Office in question.
"As the court below could not de-
termine the validity of their title, and
to that end inquired into the Legality
OF their alleged election, therefore it
could not investigate and pass upon
the real merits which lie back of their
present claim to certificate merely I;
for that can be reached only by con-
test of their actual title through some
other procedure and before the appro-
pirate tribunal"
The Judge referred to the limited
scope OF the procedure, and recited the
powers OF the board of canvass and the
tinued as follows:
Mandamua, according to the uniform
current of our well considered ajudica-
tions, is, in this State, pTerogative
writ in the supervisory sense, issuabe
exclusively by our superior court, not
OF course, but only in the exercise of a
sound judicial discretion. 1t is a
remedial writ, the appropriate func-
tions OF which are the enforcement of
the performance OF duties imposed by
law by officers and others, who neglect
or refuse to perform their duty. The
remedy is extraordinary, and il the
right is doubtful, or the duty dis
cretionary, or the power to perform the
duty wanting, or inadequate, or il
there be any other specific and
adequate legal remedy, this writ will
| not in general be allowed. The right
which it 10 sought to protect must be
clearly established and the writ is not
| granted in doubtful cases. When
substantial doubt exists as to the duty
whose performance it is sought to
coerce, or as to the right or power of
the officer to perform the duty, the
relief will be withheld, since the
granting of the writ in such cases
would render the process of the court
| nugatory and truitless.
The Judge dwelt at length IN the
practices of the cnurt, after which he
said:
Here two, general inquiries are to
be considered:
81. Have the REALTORS clearly shown
that they were plainly entitled when
the psremptory writ was awarded, TO
have the specific things done-that is,
the canvassing of all the votes actually
| given in all the hundreds aud the
making and delivering of the ceItifi-
Gates OF the result of said election
throughout the county-in aid of
which they prayed for said mandamus?
20. Have they also shown that the
alleged board of CANVASS to whom the
peremptory writ is directed, had then
the power to do those specific things?
Tho majority Of the respondents
below, by their return showing cause
against the mandamus, contend that
neither OF these essential prerequisites
to the awarding of the peremptory writ
has been sufficiently shown or estab.
lished. The theory upon which said
respondents have based said return is :
" l. That the alleged inspectors CON
posing said alleged board of canvass,
excepting only one, have never been
elected or appointed under any statute
of this State and that therefore said
alleged board is not, and has never
been, legally constituted, or lawfully
entitled, empowered or required to per
form the specific acts commanded 10
be done by This particular mandam US.
'2. That If, however, they are, and
nave been. in legal contemplation duly
and legally constituted and lawfully
authorized and required to do said
acts, yet that they, nevertheless, have
always been and we're when the per-
emptory writ Was awarded unable by
reason OF the several causes they have
specified in said return, to ascertain
the state of the said election through
cut tine county by calculating the
aggregate amount of all the votes for
each Office which have been actually
gwen in all the hundreds and election
districts of the county for every per.
son voted for for such office, and to
make the prescribed certificates
thereof. as required by law; and
4 therefore were unable to obey the neg
emptory writ as prayed for and as
awarded by the court below.
'Of the said several causes of said
inability specified in the said re-
spondents' return and assigned as error
we shall now consider but ono only,
as Its determjnation will, in our iude-
ment, be sufficient to adversely dispose
of the case before us.
This particular cause OF inability
tn n nj 4 L