Evening journal., 1910-06-07
Majority of Court Says Law
Under Which the Last
City Election Was Held
June 1909, is Invalid
STANDING OF THE
PRESENT OFFICERS

Judges Of Superior Court sitting en- banc
to-day made their decision in the WI
mington city election cases growing out
o. the contest by Dr. c. NJ. Almond Of the
election Of Howard d. Ross as city treas
urer, and the contest by Benjamin b. AL
len of the election Of Walter Rash as
councilman from the Second ward.
Nlessrs. Almond and Allen are Democrats
and Messrs. Ross and Rash are Rcpubii-
cans The latter appea ed to Superior
Count from the action Of Council in declar-
ing them ousted
majority of the court to-day decided
that Mossrs. Ross and Hash are entitled to
office, by reason OF Messr Almond and
Allen having no legal status as contest
ants. inasmuch as a majority of the court
decides that the law Under which the last
city election was held is invalid because
of the ute of the bill affecting the cleo
tion which was enrolled not being the
title Of the bill that was passed by both
branches Of the legislature
A minority Of the court gave a dissent.
ing opinion TO the effect that they consd-
ar the law valid as passed by the Legisla-
tute. and therefore .hey could not con-
cur In the majority opinion that the law
under which the election Of June, 1903 was
held is invalid.
chief Justice James Pennewill and
Judges Daniel o. Hastings and Henry c.
Conrad united in the majority opinion up
setting the election law. Judges Victor B.
lWoolley and James II. Boyce united in the
dissenting opinion sustaining the election
law
The court Is unanimous upon another i'm.
portant point in the case. however-that
the Superior Court has authority 10 re-
view the record of the proceedings OF City
Council on a writ Of certiorari. Inasmuch
rs the decision was made upon the law be-
ing declared invalid, however. the court
goes no further than these two main prin-
cipai contentious. and does not pass upon
TIE questions of whether Council gave
proper notice 10 contestants. or whether
many things done by Council In the course
Of the contest were done legally.
In the cases decided to-day Robert
il. Richards. Philip Q. Churchman.
Phillip l.. Garrett Harry p. Joslyn
and Frank L. Speakman appeared as
counsel for Messrs. Ross and Rash.
and ]. Harvey Whiteman and Thomas
Messrs. Almond and Allen
The attack upon the validity of the
last election was made by counsel for
Ross and Rash upon the ground that
the law was not passed in conformity
with the constitutional provision that
every bill before il shall become law,
must have passed with an aye and nay
vote, which vote shall be entered upon
the journals Of the respective houses.
The court established an important
legal doctrine to-day I'm it's decision,
il being to the effect that the court
can go further than a scrutiny OF the
enrolled bill signed by the Governor
and can scrutinize and compare the
Journals Of both branches Of the Legis-
lature 10 see that constitutional re-
quirements have been complied with
This should make future Legislatures
caneful to see that the journals are
written properly and that bills are en-
rolled by title TO compare accurately
with the journal entries.
The Legislature of 1907 passed a law
amending the charter Of Wilmington,
but It differed in the wording as to
the terms Of city officers. In some
places provision was made for a four
year term and in others for a two
year term.
The Legislature Of 1909 attempted to
amend and clarity this law by passing
n bill substituting -four" wherever
1.-TWO" appeared in the 1907 law. and
substituting second" for fourth
wherever IL appeared. The bill was
introduced by Senator George w.
Sparks. and was known as Senate bill
no. 142. Later a substitute for SEN
ate bill No. 142 was reported from SEN
ate committee. bearing a different
title.
It was the intention to pass the sub
Rtitute, yet It appeared that due TO a
mix-up by the clerks of both branches
in making entries Of the bills that
original Senate bill 142 was passed by
yea and nay vote. But theebill that
was enrolled and was signed by the
Governor bore the title of the substi-
tute bill No. 142. Therefore the bill
Rs signed by the Governor did not con-
tain the title Of the bill that passed
by yea and nay vote Of the Legislature,
according TO the journal entries.
Because of this discrepancy the ma
Iority Of the court holds that the con-
Ftitutional provision making a yea and
nav vote necessary and to be entered
II. upon iit INhlhni ~ nut Nn0WM ~ ndNt
been complied with.
The court. however, declared that the
men certified as elected in June, 1909
are de facto officers OF Wilmington.
This means they will hold Office until a
tourt should determine after a contdst
shall have been borught, that they are
not legally entitled TO ofice.
The opinion of Judges Pennewill
Hastings and Conrad covers ninety-fiv
lvpewritten pages, and tho greater
! part Of IL Is devoted 20 quoting au-
] khorities and to expressing the rea-
/ yoning of the court in consideration
Df such authorities quoted. In part
1 their decision says:
Acting under the authority con-
lerred by said statutes the City Coun-
4 eli Of the City of Wilmington proceed
I'd to hear and determine the case il
ISL which Charles NJ. Almond contested
IbA election Of Howard d. Ross. whC