Abrahams v. Superior Court, New Castle County

Citation131 A.2d 662,50 Del. 394,11 Terry 394
Parties, 50 Del. 394 Alexander R. ABRAHAMS, Petitioner, v. The SUPERIOR COURT of The State of Delaware, in and for NEW CASTLE COUNTY, Sitting As The Board of Canvass, Consisting of Caleb R. Layton, 3rd, Resident Associate Judge for New Castle County, and Frank L. Speakman, Judge Ad Litem By Appointment Of The Governor, Respondents, Eugene Lammot and John E. Babiarz, Additional Respondents.
Decision Date07 May 1957
CourtUnited States State Supreme Court of Delaware

Castle County, and Frank L. Speakman, Judge Ad Litem By

Appointment Of The Governor, Respondents,

Eugene Lammot and John E. Babiarz, Additional Respondents.

Supreme Court of Delaware.

May 7, 1957.

Clarence W. Taylor, of Hastings, Lynch & Taylor, Wilmington, for petitioner.

James L. Latchum, of Berl, Potter & Anderson, Wilmington, for additional respondents.

SOUTHERLAND, C. J., and WOLCOTT and BRAMHALL, JJ., sitting.

SOUTHERLAND, C. J.

Prior to the amendments of 1955 hereafter discussed, the City Charter of the City of Wilmington, as amended, required the municipal election for the Mayor and the councilmen to be held on the first Saturday in June, 1953, and on the same day in every fourth year thereafter. See 17 Del.L. c. 207; 49 Del.L. c. 110. The vote was canvassed by the Department of Elections for New Castle County, to which the functions of the former Department of Elections for the City of Wilmington had been transferred. See 19 Del.L. c. 727, § 25; 42 Del.L. c. 115; 15 Del.C. §§ 102, 103.

By a series of statutes passed in 1955, the General Assembly sought to effect certain changes in the time and in the manner of conducting the Wilmington city election.

By an act that became law June 28, 1955, amending the City Charter, the date of the city election is changed to the date of the General Election to be held on the Tuesday next after the first Monday in November, 1956, and on the same day in every fourth year thereafter. 50 Del.L. c. 391.

By an act that became law May 17, 1955, amending the provisions of the Code dealing with municipal elections, Title 15, c. 75, it is provided in part:

' § 7521. From and after the passage of this Act, the registration, election and canvass of the vote cast at elections in the City of Wilmington for the Mayor, Council, and other officers of the City of Wilmington, shall in all respects be conducted in conformity with the provisions governing general elections as provided under Title 15 of the Delaware Code.' 50 Del.L. c. 390.

By an act that became law on June 28, 1955, the provisions of 19 Del.L. c. 727, relating to the Department of Elections for the City of Wilmington and the canvass of the city election by that Department, are repealed. 50 Del.L. c. 392. The legislative intent of each of the two acts last referred to is declared to be to make applicable to the city election 'all of the provisions of Title 15, Delaware Code, as may be applicable thereto.'

The provisions of Title 15 with which we are here concerned relate to the canvass of the vote. They are found in § 5701 which provides:

'(a) The Superior Court shall convene in each county on the second day after the general election, at 12 o'clock noon, for the performance of the duties imposed upon it by Section 6 of Article V of the Constitution of this State and by this chapter. Thereupon the Court, with the aid of such of its officers and such sworn assistants as it shall appoint, shall publicly ascertain the state of the election throughout the county and in the respective hundreds and election districts, by calculating the aggregate amount of all the votes for each office that shall have been given in all the hundreds and election districts of the county for every person voted for for such office.

'(b) For the purposes of this chapter, the Superior Court shall consist in New Castle County of the President Judge and the Resident Associate Judge; in Kent County of the Chancellor and the Resident Associate Judge; and in Sussex County of the Resident Associate Judge and the remaining Associate Judge. For the purpose of this chapter, the Superior Court in each county, as so constituted, shall be a Board of Canvass for the respective counties of this State.'

These statutory provisions are but a restatement of certain of the provisions of Art. V, Sec. 6 of our Constitution, Del.C.Ann., relating to the canvass by the Superior Court of the vote at general elections. The scope and effect of the constitutional provision are hereafter considered.

The Wilmington city election was accordingly held on November 6, 1956, on the same day as the general election. On the face of the returns, the Democratic candidates for the offices of Mayor and city councilmen were elected.

The Superior Court duly convened for the purpose of convassing the vote cast at the city election, as well as the vote cast at the general election. While the canvass was in progress the Republican candidate for Mayor petitioned this Court for a writ of prohibition restraining the Superior Court from canvassing the vote at the city election, on the ground that so much of the acts of 1955, above referred to, as purported to require the Superior Court to canvass that vote is an attempt to enlarge the canvassing jurisdiction of the Superior Court fixed by Art. V, Sec. 6, and is unconstitutional.

An order was entered, declining to stay the canvass, but directing the certificate evidencing the result of the vote to be deposited with the Clerk of the Court, subject to the further order of the Court.

Art. V, Sec. 6 of the Constitution, relating to the canvass of the vote at the general election, provides in part as follows:

'Section 6. The presiding election officer of each hundred or election district, on the day next after the general election, shall deliver one of the certificates of the election, made and certified as required by law, together with the ballot box or ballot boxes, containing the ballots, and other papers required by law to be placed therein, to the Prothonotary of the Superior Court of the County, who shall at twelve o'clock noon on the second day after the election present the same to the said court, and the election officer or officers having charge of any other certificate or certificates of the election shall at the same time present the same to the said court, and the said court shall at the same time convene for the performance of the duties hereby imposed upon it; and thereupon the said court, with the aid of such of its officers and such sworn assistance as it shall appoint, shall publicly ascertain the state of the election throughout the County, by calculating the aggregate amount of all the votes for each office that shall be given in all the hundreds and election districts of the county for every person voted for for such office.

* * *

* * *

'The said court shall have all the other jurisdiction and powers now vested by law in the boards of canvass, and such other powers as shall be provided by law.

'After the state of the election shall have been ascertained as aforesaid, the said court shall make certificates thereof, under the seal of said court in the form required by law, and transmit, deliver and lodge the same as required by this Constitution or by law, and deliver the ballot boxes to the sheriff of the county, to be by him kept and delivered as required by law.

'No act or determination of the court in the discharge of the duties imposed upon it by this section shall be conclusive in the trial of any contested election.

'For the purposes of this section the Superior Court shall consist in New Castle County of the Chief Justice and the resident Associate Judge; in Kent County of the Chancellor and the resident Associate Judge; and in Sussex County of the resident Associate Judge and the remaining Associate Judge.'

The petitioner's argument is that this section determines the limits of the jurisdiction of the Superior Court to sit as a Board of Canvass; that such jurisdiction is restricted (1) to the canvass of the general election and (2) to such other jurisdiction as had been vested in the boards of canvass prior to the adoption of the Constitution; and that the canvass of a municipal election does not fall in either category.

There can be no doubt, we think, that the words 'general election', as used in our Constitution, do not include municipal elections. Thus, Art. V, Sec. 3, dealing with challenges for bribery, refers to 'any general or special or municipal election'; and the same phrase occurs in Sec. 7 of the same article. Other provisions of Article V refer only to the 'general election'. Thus Section 1 provides:

'The general election shall be held biennially on the Tuesday next after the first Monday in the month of November, * * *.'

and Section 4 provides:

'Registration shall be a prerequisite for voting only at general elections, at which Representatives to the General Assembly shall be chosen, unless the General Assembly shall otherwise provide by law.'

The 'general election' referred to in these sections does not include school or municipal elections. Brennan v. Black, Del.Ch., 104 A.2d 777. And, as pointed out in that case, the Debates of the Constitutional Convention of 1897 make it entirely clear that the phrase 'general election' does not include school or municipal elections.

The phrase 'general election' in Art. V, Sec. 6 of our Constitution does not include a municipal election, and the constitutional duty of the Superior Court to 'ascertain the state of the election' casts no duty upon the court to canvass the vote at a municipal election.

But, although the Constitution does not require the court to canvass the municipal election, may the General Assembly require it to do so? The answer to this depends upon whether the Constitution, having defined the jurisdiction of the Superior Court in respect of the canvass, impliedly excludes any extension of that jurisdiction by the legislature. Even if there were no specific language in the Constitution bearing directly upon this point, it would certainly seem highly probable that the jurisdiction specified in the Constitution was intended to be exclusive, under the general...

To continue reading

Request your trial
19 cases
  • Young v. Red Clay Consol. Sch. Dist.
    • United States
    • Court of Chancery of Delaware
    • May 24, 2017
    ...election irregularity, even one of constitutional dimensions." (citing Irregularities in State Elections at 1099)); Abrahams v. Superior Court, 131 A.2d 662, 671 (Del. 1957) (declining to invalidate municipal election canvassed pursuant to a state law requiring judicial canvassing despite h......
  • State v. Dickerson
    • United States
    • United States State Supreme Court of Delaware
    • November 1, 1972
    ...Del.Supr., 287 A.2d 660 (1972); State ex rel. James v. Schorr, Del.Supr., 6 Terry 18, 65 A.2d 810 (1949); Abrahams v. Superior Court, Del.Supr., 11 Terry 394, 131 A.2d 662 (1957). Accordingly, for the guidance of the Superior Court in this case and others in like retroactive category, we ex......
  • U.S. ex rel. Clark v. Anderson
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • June 13, 1974
    ...been convicted of conduct which he necessarily knew to be illegal, I would affirm the judgment of the district court. 1 Abrahams v. Superior Court, Del.1957, 131 A.2d 662; State ex rel. James v. Schorr, Del.1949, 6 Terry 18, 65 A.2d 810, 822; Wilmington Trust Co. v. Highfield, Del.1931, 4 W......
  • Young v. Red Clay Consol. Sch. Dist., C.A. No. 10847-VCL
    • United States
    • Court of Chancery of Delaware
    • May 24, 2017
    ...irregularity, even one of constitutional dimensions." (citing Irregularities in State Elections at 1099)); Abrahams v. Superior Court 131 A.2d 662, 671 (Del. 1957) (declining to invalidate municipal election canvassed pursuant to a state law requiring judicial canvassing despite holding tha......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT