Evening journal., 1910-06-07
RASHAND
WIN--- ---ELECTION
LAW is UPSET

which Benjamin b. Allen contested the
election of Walter Rash who had been
returned and certified duly elected a
member Of the Council OF the City of
wilmington at said election.
1T may be said broadly, that there
are two principal questions involved
in the cases before the court.
First. the jurisdiction Of this court;
and
Second jurisdiction of the
City Council or court below.
The complainants below have moved
that tie wrts OF cer,io.an De dismissed
ion want of jurisdiction in the superior
Court out OF which said wits were issued.
Being c.eariy of the opinion that the
wrts Of ceruorari in question were issued
IN pursuance OF the power and authority
concerned By the constitution, We think
this court has the power to review tie pro-
cedeings OF The Council of the city "
Wilmington in the cases before us, for
the purposes indicated. The motion TO dis
miss is therefore refused.
Having determined that the writs Of
cortiorari we're properly and legally issued
for the purpose of ascertaining whether
the court below had jurisdiction to hear
and deter mine said cases, ana believing
that the respondents oeiow have such in
terest in the decision of the cases here.
and had in the contests below, as will en-
able them TO sustain their writs Of certior-
arl. il becomes necessary TO determine
whether the act Chapter Us. Vol "A, Laws
OF Delaware, under which tho city e.ec-
ton was held in the month OF June last
was valid or invalid
After quoting authorities at great length.
the majority Of the court say.
I'VE think that by the great weight Of
authority I'm this country to-day. as well
as by reason, and public policy which
demands the enforcement Of constitutional
provisions. the courts may. and should,
notice. or look 70 the journals OF tho Leg
islature for the purpose of impeaching a
duly enrolled act when the constitutional
/ ity Of its enactment is challenged; that
when a state constitution contains a pro-
vision that no bin shall become law, or
that no bill shall pass unless the ayes and
nays are entered upon the journal such
provision is mandatory and must be en-
forced: and II it clearly and afhrmatively
appears from an inspection Of the journals
that such mandatory provision has not
been complied with in the passage OF an
act or II the journal Tail TO show that
such provision has been compiled with il
is the duty OF the couri TO declare such
act void"
In making the above decision the court
established what is known as The Jour
nal entry doctrine" for Delaware.
The important question is not what
the Legislature may have intended to
I do. not what was the practice or usual
1 course of procedure in the Legislature
as known TO those familiar herewith;
/ not whether the clerks got the two
bills mixed or confused. made mis-
/ take at the close of the session but
rather what according TO the Journal
J entries was the bill upon which the
I yeas and nays were ordered. the bill
that was constitutionally passed? Was
I it the Senate substitute? II il was
not, then il makes no difference
whether the original bill was passed
/ or not, because the bill i'm question was
not constitutionally passed, and did
not become a law.
But we are clearly of the opinion
that in the present case the journals
not only do not show that such was
] AlAt AuNA UuN AitN ANAlN llO AONAAA AVA
doubt. We. therefore, must conclude
that Senate substitute for Senate bill
No. 142 was never constitutionally
passed. and that the act published as
chapter 17S. vol "a of the Delaware
laws is void
Having concluded that the said
chapter 17S is void in conclusion we
say that while said act, chapter 1T3.
vol. "a, Laws Of Delaware. is invalid,
and the city election held hereunder
void. the member of the City Council
and other city officers duly returned
and certified as elected at said cleo
ton are nevertheless defacto officers
The minority. or rissenting opinion
of Judges Woolly and Boyce was read
by Judge oWolley 1t comprised Ga
typewriter pages. and was devoted to
an analysis of the arguments adduced,
and the quotation of authorities. In
part Judge Woolley said:
I'VE concur with the majority Of the
court, that as an abstract PROPOSE
tion, the Superior Court is vested by
the constitution with jurisdiction to
review on certiorari the proceedings
of the Council In contested election
cases and when its jurisdiction over
| Nht PARTIES AAltitAO IL SHOWN nN AHcll
interest therein. TO determine by judg-
ments of affirmance or reversal,
whether the proceedings of the Coun-
Gil were within the jurisdiction con-
ferred upon 1t by law. The other
proposition OF law maintained in the
majority opinion of the court. do not.
however, command the assent OF Judge
Boyce and myself. We, therefore.
dissent from the judgments 10 be en-
tered in these cases, and consider that
4 the magnitude Of the questions in
volved renders that dissent of import
ance sufficient to warrant a statement
of the reasons and grounds upon
which it is made"
Speaking of the journal entry doc
trine, Judge Woolley says:
by the adoption of the journal entry
doctrine as announced by a majority OF
this court. the right TO conclusively certify
its own acts by its own solemn authenti-
cation is taken from The Legislature, and
its two clerks arc made the sole witnesses
and their journals the conclusive evidence
of what the Legislature did This doc
trine viii make insecure the foundation OF
every law to be enacted. and will make IL
possible for one clerk, through incompe-
tency or dishonesty. or for any person
having access TO his memoranda. 10 an
nul any law that is passed by the legis-
lative and approved by the executive de-
, Continued IN Seoord De-.