Evening journal., 1917-07-23
LEGAL Battle over
WET and DRY Law ON
coniInnnd rrom TIrst pnra.

Continued From First Page.
the New Castle legislators for the law
was withdrawn before the bill passed.
the Legislature and third because the
committee favorlng license failed 10
submit names TO the Governor for ap-
pointment 20 the special election
board and the naming of the board
without these names was an Illegal
act on the Governors part and made
I the board non est
] These attacks were In support Of
the petitions for the writs of man
damuA
Immediately after court convened
en- banc at Ills a. m, Chief Justice
/ Pennewill announced that because OF
/ the not weather the court would not
recess but sit through till the end OF
arguments.
Deputy Attorney General David j
Layton. Jr., Of Dover, personal coun-
sci for Governor Townsend. moved
| that the petition for q wri1 Of man.
damus brought by the New Castle
county license committee against
Governor Townsend be dismissed on
the ground that the court was with.
out Jurisdiction.
Attorney r. II. Richards for the Pc
tition. then read the full petition for
the writ the court agreeing TO hear
| the motion for the dismissal OF the
| petition at once. He had previously
moved that the oase be transferred
| from the Superior Court TO the court
en- bauo, a stipulation agreeing 10
this having been nled by al int9r-
ested.
Attorney Layton then tJok up the
argument 20 dismiss the petition for
the writ Of lnandamus against TIE Cow
ernor, VasSrE that the Governor did in
fact comply with the law when he
named tho special board, and hence is
not suticct to mandamus to do what
no bad already done He argued that
tho use In court docs not involve pri-
vato right and private property, the
point of his argument being that t5s
court docs NOT have the jurisdiction %
coerce a State executive 10 perform an
executive act IN a certain way when the
law gives such executive discretion in
the manner Of performing his executive
duties. Attorney layton cited numerous
decisions Of various States TO uphold his
position. but quoted only from de-
olgion Of Judge Cooley, who heard IN a
Michigan case that tho court cannot
coerce by writ Of mandamus, the Gov
ernor, 20 do an executive act.
The second point raised by Attorney
Layton was that the naming OF an
election board by the Governor Is not
strictly a ministerial act, and that man
damus against the chief executive can
be had only 20 compel him to perform
a strictly ministerial act, but not as 20
a governmental, discretionary. executive
or political act.
Attorney Layton's third point was
that the court has no power to tell
the Governor how he shall divide the
appointments 70 the election board,
among the vets and "drys," this
being a discretionary executive act
with which the court cannot interfere
His final argument was that a writ
OF mandamus does not issu to undo an
act already done and he agreed that
the officers had already been appoint
cd and have performed one days
work in registering voters on July
2l These men are officers and they
cannot now be removed except for
constitutional causes. therefore the
Governor could not obey such a writ
n issued Mr. Layton argued
Attorney Robert q. Harman for the
New Castle License Committee, op-
posed the motion on one main ground
namely that the Governor is not
above the law. and so Is amenable 70
the writ OF mandamus. His argument
was that the Governor did not obey
the law in naming the boards Of reg
istration IN rural New Castle county
and that, therefore. writ of man
damus lies 10 make him divide The
appointments equally.
Answering the contention Of the
! Governors counsel, that mandamus does
not lie 10 undo what has been done. At
| torney Har1nan argued that in the
case at bar the Governor has not act
ed. hence he can be compelled TO do
so. lie characterized the naming of
the boards az "peenut politics of the
J lowest and most contemplate kind He
charged that the anti-hcense forces got
all the places as registrars, and that
the registrars become inspectors at the
election. This ia political scheme Of
the lowest character" said Mr.. Norman.
Following Mr. Harmans argument.
Attorney Richards read the Levy
Court petition for a writ of prohibl-
ton against the special election board
the court taking no action on the
motion OF Attorney Layton 10 disnrfss
the petition against the governor No
action was taken on the second man
damus petition. that OF the Whining
ton Printing Company against the
Levy Court. the court indicating that
Il was ready 70 hear arguments on
the applications for the two writs of
prohibition against the members of
! the special department OF elections
! Attorney Richards presented an
amendment to the Levy Court petit
, ton.
I Attorney Caleb e. Burchenal for the