Evening journal., 1910-02-01
YET ARGUING
ELECTION CASE
Counsel For Almond and
Rash Are Heard by Court
Today
COURTS QUESTIONS
ARE ANSWERED

Philip O. Churchman in the court
en- banc last evening concluded his
argument in tho contested election
cases.
When court met this morning j. Har-
vey Whiteman commenced argument in
opposition a reversal Of the judgment
of City Council in the cases. He claim
ed there was not a case on record TO
sustain the proposition regarding de
facto officers as set up by counsel for
the respondents below.
Mr.. Whitemap argued that the case
differs entirely from all other cases.
IF act No. 17S was constitutional il
shows the parties TO this case had |
no interest. II act No. IFS is uncon-
stitutionaI then there was no election |
held in 1909. II no election had been /
held this case was heard below be-
fore a body that was no court at all. |
The learned gentlemen have failed to
distinguish between a judgment that
is void and one that is voidable. A
court will not sit to review a void
judgment. ANY person who attempts |
to take rights under a void judgment
is trespasser.'
At this point Judge Boyce inter-
rupted Mr. Whiteman with the ques
tion. Suppose a justice of the peace
gives judgment on a suit for $780, do
you say this court would have no right
to review?"
Mr. Whiteman answered. Your
Honor. Judge Boyce, can see that would
be a voidable judgment as the court
that gave that judgment was a leg
ally constituted one. But void judg
ment is entirely different. Suppose
the Levy Court would sit to hear and
give judgment in favor Of a A. 3.
against c. d. for $500 would this court
review such a case?'
Judge Hastings replied. suppose
these de facto officers had as part Of
their duty to hear this contest, would
they not still remain such regardless
of the act 17s."
Judge Woolley inquired IL Mr. Rash
had claimed he was elected on June
8, 1909?
Mr.. Whiteman replied that Mr.. Rash
did, and nut in evidence in support
of that contention. "If 17s was not
legal act then these members of City
Council were only assuming and did
not have legal standing 10 render iudg
ment Growing out Of the issues Ross
and Rash had no interest at stake.
Judge Hastings then remarked that
he understood that this question comes
as TO the right Of the respondents 70
raise this point
MIR. Whiteman said the parties come
into court and say eve claim no right
under the election of 1909 because there
was no election. They have brought
up a record regarding one thing and
want this court to decide another
were they elected in 1907
I'VE believe the other side erred in
bringing certiorari proceedings instead
Of quo warranto action and that the
petition then could contain all these
. matters" said Mr.. Whiteman.
Courts Questions Answered.
The second query Of the court was as
follows:
If Chapter III Of Vol "a Laws OF Della
ware is a valid act. it is manifest from
the face thereof that an error has been
made I'm the use of the words Fourth" or
Two" Can the court correct the error II
from an inspection Of said act the inten-
ton Of the Legislature can be discovered?
, And if il can what was the intention Of
the Legislature in the use Of such words?
Counsel for the respondents considered
AUAc HNtcAlDM hiAnNA AiiN ARhbWAAE hfabhs
1. That the act must be read literally
.. II an intent is to be sought aliunde
5 the intent was 20 establish elections in the
city Of Wilmington every four years.
B. That construction must be adopted
which gives effect to every clause
g. That it is not possible to sustain an
intent to create or establish a new two
5 year election when such WAS then and
had been for many years heretofore the
statute law.
Third Query-Does IL clearly and satis-
factorily appear from the journals that
Senate substitute FOR Senate bill l42 was
not passed by an aye and nay vote?
In answer TO this question counsel for
respondents below in their brief say;
Counsel respectfully submit that chapter
IFS not only did not pass in one house
but did not pass in either house as shown
by the Journals upon any final vote
I which was taken by ayes and mays and
! the names Of the members voting for and
against the the same entered on the
y journal" as required by the constitutional
I mandate above quoted.
n For convenience and IN aid Of the couri
:. in determining beyond any question what
soever. that the act was not passed az
!. above stated. counsel have prepared and
! submit as a part Of this brief a chart Of
: the journals showing minutely and in de
tail what was done by both the Senate
and the House in regard 20 the origina
bnI and also what was done as regards
the substitute bill.
Counsel also submit that it must al
., ways be borne in mind, in considering thi
y matter that there were two bills Of th'
same number d42) but bearing differen
n titles. The chart shows the course OF tn
, original bill as follows, as printed in th'
= journals:
i Senate Journal-Notice given page 405
ic introduced and read first time 592: real
v second time and referred 5s2; read thir'
a time SIP; passed by aye and nay vote s1s
" sent to House Sis; reported passed b,
d House SS2.
p House Journal-Messaged from Senat
re- page s2i read first time 924; read seconi
D. time and referred s2i; reported out o
p committee 9S5i third reading ss5; passe
1T by aye and nay vote, 9S5.
IL Substitute Bill.
.r senate Journal-Rsported from com
mittee page S1i.
~ House Journal-Reported enrolled s54-e
- House returned sigped S66; reported en-