Fouracre v. White
| Citation | 30 Del. 25,102 A. 186 |
| Court | Delaware Superior Court |
| Decision Date | 01 August 1917 |
| Parties | THOMAS S. FOURACRE, ROBERT M. BURNS. WILLIAM T. PURKS, ISAAC C. ELLIOTT, BENJAMIN A. GROVES, JAMES G. SHAW, and JAMES A. BUCKSON, Levy Court Commissioners, composing and constituting THE LEVY COURT OF NEW CASTLE COUNTY, v. WILLIAM P. WHITE, JOSEPH S. HAMILTON and GEORGE M. FISHER |
The opinions were certified to the Superior Court, whereupon the motion to quash the return to the rule was refused and the writ of prohibition was denied.
Superior Court, New Castle County, May Term, 1917.
Rule to show cause, No. 146, May Term, 1917.
PETITION with affidavit annexed, by Thomas S. Fouracre and others Levy Court Commissioners, composing and constituting "the Levy Court of New Castle County," for a rule to show cause why a writ of prohibition should not issue to William P. White and others, who had been appointed and commissioned by the Governor to act as and to constitute the "Department of Elections for the City of Wilmington," under Chapter 111, Volume 29, Laws of Delaware.
The rule was awarded by the Superior Court and respondents waived the issuance thereof and appeared gratis without prejudice.
There was a motion to discharge the rule and dismiss the petition. On joint application of parties the questions arising were heard by the Court in Banc. Motion refused and writ denied.
It was averred in the petition inter alia that the petitioners are the duly elected Levy Court Commissioners for the several Levy Court districts of New Castle County, and as such compose and constitute "the Levy Court of New Castle County;" and in such capacity are charged with the duty of raising by taxation, appropriating and paying out such sums of money as are necessary to defray the legitimate expenses of the government of the said New Castle County and of the several parts thereof.
That the Governor of the State of Delaware, on or about the twenty-ninth day of June, 1917, appointed, and issued commissions to the following named persons to act as and to constitute the "Department of Elections for the City of Wilmington," provided for by the pretended act of the General Assembly mentioned and referred to in the next succeeding paragraph hereof, to wit: William P. White, Joseph S. Hamilton and George M. Fisher, the defendants herein, and James H. Kane and Timothy J. Mooney.
That the said appointments by the Governor of the said five persons were made under color of a pretended act of the General Assembly of the State of Delaware entitled, "An act providing for the submission to the vote of the qualified electors of the City of Wilmington as one district, and to the qualified electors of the remaining part of New Castle County as one district, as mentioned in Section 2, Article XIII of the Constitution of the State of Delaware, the question whether the manufacture and sale of intoxicating liquors shall be licensed or prohibited within the limits of the said two districts in accordance with said Article XIII of said Constitution and fixing penalties for the illegal manufacture and sale of intoxicating liquors in either of said districts wherein there shall be a majority of votes cast against license;" which said pretended act of the General Assembly the defendants allege was passed by the General Assembly of the State of Delaware, at its biennial session held in the year 1917, and allege was approved by the Governor of said state on the fifth day of April, A. D. 1917 and which said pretended act of the General Assembly appears printed in Volume 29 of the Laws of Delaware as Chapter 111 thereof, a copy whereof is attached hereto; and that the said appointments were so made by the Governor particularly pursuant to the pretended authority of paragraphs 4 and 5 of Section 2 of said pretended act, which said paragraphs are as follows, to wit:
That at the time of making said appointments and of issuing said commissions, on the said twenty-ninth day of June, 1917, and prior thereto, there had been submitted to the Governor, and he had before him, a list of names presented and submitted by certain individuals styling themselves "the Committee having charge of the campaign against license," which said list of names was then and there intended to be a list from which the Governor should select not less than two nor more than three of the five persons which the above quoted paragraphs 4 and 5 of said Section 2 of said pretended act of the General Assembly provide for to be known as the "Department of Elections for the City of Wilmington" for the purpose of conducting the special election authorized in said pretended act of the General Assembly; but that, at the time of making said appointments and issuing said commissions there had not been submitted to the Governor any other list of names by any persons styling themselves "The Committee having charge of the campaign for license" or by any other person or persons whomsoever, nor did the Governor, then and there, have any such other list before him.
That the Governor, without there having been submitted to him the two lists of names provided for in the above quoted paragraphs of said Section 2 of said pretended act and without having both such lists before him, without any lawful authority to appoint the committee of five persons to be known as the "Department of Elections for the City of Wilmington" provided for and contemplated by the said paragraphs of said pretended act, nevertheless exercising a power he did not possess, appointed five persons to constitute said department of elections, to wit, the said defendants and the said James H. Kane and Timothy J. Mooney three of whom, to wit, the said defendants, were appointed from the said list so as aforesaid submitted by the persons styling themselves "The Committee having charge of the campaign against license," and the remaining two of whom, to wit, the said Kane and the said Mooney, were appointed, not from a list of names submitted to the Governor by "The Committee having charge of the campaign for license" (no such list having been so submitted), but in some manner unknown to and contrary to the provisions of the said pretended act of the General Assembly.
That the said action of the Governor in appointing the said five persons was and is wholly illegal and void. That the said five persons do not and cannot constitute the said department of elections contemplated by said pretended act of the General Assembly.
That of the said five persons so appointed as aforesaid, the three defendants, on the thirtieth day of June, A. D. 1917, met together in the City of Wilmington and assumed and pretended to constitute the said department of elections and assumed and pretended to organize themselves, as the said department of elections, by electing the said White as president and by electing a certain Charles A. Hagner secretary. That the said Kane and the said Mooney were not present at said pretended organization of said pretended department of elections and as your petitioners are informed and believe, have not participated in any of the acts or doings of the said three defendants so as aforesaid assuming to act as the said department of elections; and the said Kane and the said Mooney have not assumed to act as members of any such department of elections, nor have they assumed to take the oath of office or otherwise to qualify as members of such department.
That the said action of the defendants in so pretending and assuming to constitute the said department of elections, and in organizing as such, was and is wholly illegal and void, and without any warrant or authority in law.
That on the said thirtieth day of June, 1917, the said defendants, so as aforesaid pretending and assuming to act as the said department of elections, received a list of names for registration officers from the said persons styling themselves "The Committee having charge of the campaign against license," and then and there the said defendants appointed and named from said list certain registration officers to conduct and hold the registration authorized by said pretended act of the General Assembly for the purpose of said special election authorized to be conducted by said pretended act, and that the said defendants, without having received any other list of names for registration officers from any persons styling themselves "The Committee having charge of the campaign for license," then and there also named and appointed other registration officers to conduct and hold the said registration, claiming that the said other registration officers are representatives of those persons who are in favor of license in the said City of Wilmington.
That the said defendants, so...
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Fouracre v. White
... 102 A. 186 FOURACRE et al. Levy Court Com'rs. v. WHITE et al. Superior Court of Delaware. New Castle. Aug. 1, 1917. 102 A. 187 Conrad and Heisel, JJ., dissenting. Petition by Thomas S. Fouracre and others, Levy Court Commissioners, composing and constituting the Levy Court of New Castle Co......
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