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

tHsHeos lhcu ~ 10 DDhlllNtiN bTut
that it cannot be done. This is clear
because the law points out plainly the
method to be pursued, and it would be
| cruel and monstrous for this court or
any other court to impose upon man a
duty which it is impossible for him TO
perform. My learned friend. MIR. Hayes,
asserted here very vigorously that the
certificates from West Dover hundred
were in the ballot box, and that this
| count should presume they were there.
There is no allegation 10 THAR petition
that the certificate is in the ballot
box. There is. know, au implication
that MIR. Baxter withheld the GER
| tificate from his hundred as aforesaid
| This is the only allegation 10 the world
there is about it. They have shown in
this averment that it was necessary to
| do so.
Mr.. Wolcott then read from "Merrill
on Mandamus," supporting his conten-
| ton.
Now" he continued, 'idoes it not
appear to this court that when they
| came to make the allegation concerning
| the certificates, that they should have
done it with more care? With such
particularlity that il this board is com
| PEELED TO reasonable they shall have be-
fore them certificates which they are
bound to recognize? These certificates
constitute the only authority for the
counting Of these votes.
The ex-Chanceilor here quoted Chief
| Justice Lore's opinion reading from
Every Evening, at the conclusion of
which he said:
The counsel on the other side base
their statement on this point almost
entirely on information and belief. and
we all know that statements based
upon information and belief are abso--
| lutely valueless in this or any other
court. In this case they did not even
say that the certificates were in con-
formity with the law. Now, then.
these certificates are conditions precs-
dent, because il there are no certifi.
| Gates there can be no ascertainmept of
elections. Yesterday my friend, MIR.
Ward became 30 fervent that he even
said il these certificates we're as false
as his satanic majesty the board was
| required to count the vote. 10 matters
| of this kind the facts from which the
| conclusions are deduced must be set
forth clearly and distinctly. Defects in
the petition of the REALTORS cannot be
cured by anything in the answer of the
respondents.
In our return we mention papers
| purporting to be certificates. But we
| expressly deny that certificates for West
Dover HUNDRED were ever made and
| signed and therefore could not be in
the ballot box; they never existed. 1t
has been suggested that if this board
of canvass is reconvened ii would have
| the power to issue mandamus to
| compel the election officers to meet and
| count the vote These REALTORS when
they asked for writ OF mandamus from
the superior court were required to
show that they we're in position to
compel the reconsention of the board.
l was amazed and startled at the an
nouncement made by my friend Mr..
Ward in regard to the power Of the
sheriff. | thought he was going to say
that Sheriff Shaw had the power to
issue a writ OF mandamus compelling
the board of canvass to come before
him. l don't think Mr.. Ward intended
to mislead the court in this matter.
but do think he read the law too
hastily and did not exactly comprehend
it's full meaning. So long as there
has been an election, and so long as
there are votes in the ballot box, the
principle OF law advanced by our
friends cannot be carried out. And
yet our friends come here and ask il.
1t makes NO difference whether these
votes would change the result or not.
This mandamus is addressed TO the
board nf canvass, and these proceed
ings must be carried on strictly in
accordance with the statute.
1.-The trouble ali arose over these
conspirators who were standing about
with blood IN their eyes. 1t was not
the fault of the inspectors. These
conspirators were threatening and
would perhaps have shown violence
had they believed their wishes would
not have been carried out.
take it when the court says that
a writ of mandamus will not issue to
compel party to perform duty
which it ia Impossible to perform, and
the leading text writer's agrees thereto,
that further talk on this point is alto
gether Unnecessary.
IF they had asked for writ to COM
pei the board to reconvene and canvass
the vote in all the hundreds of the
county except West Dover, then the
writ might have properly issued and
the board would have been able 10
comply. But they have gone too far
and asked too much-asked that the
board be compelled to perform an i'm.
possible act. | just want to suggest
this point to the court.
Wherever there is an intermediate
act to be performed and it is incum-
plete that act stands between the re.
lators and respondents in mandamus. :"
Mr.. Wolcott again quoted from "Mer-
: rill on Mandamus' aud other authori.
ties. He referred to the case of Lurty
vs.. Hardcastle, which occurred in Duck
Creek in this county, and where writ
OF mandanus applied for was denied in
an opinion delivered by Judge Grubh
on the ground that it would have been
nugatory and in vain.
1.-THE West Dover hundred election
officers, said Mr.. Wolcott," adjourned
without performing their duty, and
there is no power in the superior court
to compel them to reconvene, especially
, SO If the court has not the authority to
compel the board of canvass to recon.
vene.
In reference to this Intermediate
, act, there was case cited here yester.
day regarding "A road overaaer, where
: the mandamus issued to campel the
Overseer to keep the road in repai,.
Tho court refused to issue a mandamus,
} saying that the road should have boon
clearly located, and that the overseer
! should not be compelled to search the
records in order to discover The road.
This was an intermediate act to be per
formed. Thomas H. BaXter himself was