Lammot v. Walz
| Decision Date | 29 September 1954 |
| Citation | 107 A.2d 905,9 Terry 532,48 Del. 532 |
| Court | Delaware Superior Court |
| Parties | , 48 Del. 532 Eugene LAMMOT, Plaintiff-Below Contestant, v. August F. WALZ, Defendant-Below Contestee. |
James L. Latchum of the Firm of Berl, Potter & Anderson, and Michael A. Poppiti, Wilmington, for contestant.
Clair J. Killoran, David Snellenburg of the Firm of Killoran & VanBrunt, and Robert H. Richards, Jr., of the Firm of Richards, Layton & Finger, Wilmington, for the contestee.
This action and eleven others (being Nos. 1220 through 1230 Civil Actions, 1953), all of which have been consolidated in the above action in accordance with Rule 42(a) of this Court, Del.C.Ann., are before me on Writs of Certiorari to review the proceedings of the Council of the Mayor and Council of Wilmington (hereinafter referred to as Council) pertaining to election contests growing out of the municipal election of the City of Wilmington held on June 6, 1953. All of the actions below (12) contested the right of the contestees, who were purportedly elected to certain offices in the City of Wilmington on June 6, 1953 to hold such offices.
The petitions forming the basis of these actions were filed pursuant to Section 27, Chapter 727, Volume 19, Laws of Delaware, by the Democratic candidates for the Office of Mayor, President of City Council, Treasurer, Northern Tax Collector and Councilmen from the First, Second, Third, Fourth, Fifth, Seventh, Eighth and Ninth Wards contesting the elections of their adversaries voted for the Wilmington City Election held on June 6, 1953. The respective petitions were filed on July 3, 1953 within thirty days next after said election as prescribed by Section 27, aforesaid. The petitions are in writing and allegedly set forth with particularity, as indicated therein, the grounds and specifications upon which the elections were contested. The petitions are under oath and accompanied by an affidavit that they were not filed for the purpose of vexation or delay.
Council on July 9, 1953 adopted a resolution setting the petitions down for hearing on July 17, 1953, a date within the prescribed fifteen day period from the time of filing such petitions. On July 16, 1953, the day preceding the scheduled hearing, the contestees filed motions to dismiss the several petitions. The grounds assigned are (1) that the petitions fail to state the grounds and specifications of the contest with sufficient particularity, and (2) it does not appear from the facts alleged that the result of the elections would be changed by correcting the wrongs complained of.
Over objections by contestants, Council proceeded by resolution to require briefs to be filed by all parties relating to the motions to dismiss. Contestants objected to any Council members whose election was contested in taking any part in ruling upon the contestees' motions to dismiss. These objections were overruled.
Briefs were filed by attorneys for all interested parties in accordance with schedule. The contestees' motions to dismiss were argued orally before Council on September 8, 1953. At the conclusion of the arguments Council adopted a motion to reserve decision upon the contestees' motions. On October 8, 1953 Council passed a resolution dismissing each of the twelve petitions. On December 15, 1953 each contestant filed a praecipe for the Writ of Certiorari to Council. 1 On December 28, 1953 a stipulation and order was entered in the above case which consolidated all of the election contests in this civil action pursuant to Rule 42(a) of this Court because of the common questions of law involved and in order to avoid unnecessary costs and delay. On January 6, 1954 the contestants filed their exceptions to the record below and the matter is now before me on these exceptions.
The statute involved is as follows:
For the purpose of this opinion I shall deal only with the petition filed by Eugene Lammot, the Democratic candidate for the Office of Mayor for the City of Wilmington, contesting the alleged election of his opponent, August F. Walz, the Republican candidate for the Office of Mayor of the City of Wilmington at the Wilmington City Election held on June 6, 1953, who claims to have been duly elected to said office.
'Your petitioner, Eugene Lammot, respectfully represents:
1. That he was the Democratic candidate for office of Mayor of the City of Wilmington at the City election held on June 6, 1953, and that he does hereby contest the right of August F. Walz, Republican candidate, who claims to have been duly elected to said office.
2. That this petition and contest is brought pursuant to the authority contained in Section 27, 19 Laws of Delaware, Chapter 727.
3. That the Department of Elections for New Castle County at a public session held on June 8, 1953 canvassed the 'statements of the result of the canvass and estimate of votes' submitted by the inspectors of each of the election districts, as required by Sections 21, 22 and 25, 19 Laws of Delaware, Chapter 727 and thereafter the said Department executed a certificate which proclaimed and declared August F. Walz to have been elected to the office of Mayor of the City of Wilmington at said election.
4. That the aforesaid canvass of said Department of Elections of the inspectors' 'statement of the result of the canvass and estimate of the votes' showed August F. Walz to have received 143 more votes than your petitioner for the said office of Mayor.
5. That upon information and belief your petitioner avers that the statements of the results of the canvass and the estimate of votes submitted to the said Department by the inspectors of each of the election districts in the City of Wilmington were and are incorrect because of the following reasons:
(a) ballots were counted which were improperly marked;
(b) ballots were counted which in fact were not marked at all;
(c) ballots were counted which contained distinguishing marks;
(d) defaced and mutilated ballots were counted, contrary to law;
(e) there are variations between the number of voted names on the Poll Lists, the number of ballots cast and the names in the Books of Registered Voters that are marked voted;
(f) the tally sheets reflect an incorrect tally of the ballots cast;
(g) the computations on the tally sheets are incorrect;
(h) the tally sheets, ballots, books of registered voters, poll lists, and inspectors' statement of results do not correspond as required by law;
(i) more ballots were counted than the number of voters in said districts;
(j) ballots were improperly counted.
6. That upon information and belief, petitioner avers that the following irregularities and/or fraudulent acts took place at said election:
(a) That Christopher S. Glover and Robert A. Groves, members of the Department of Elections for New Castle County, in the First Election District of the First Ward and in numerous other districts, ordered and advised the election officers of such districts, contrary to law, that the said election officers could not and must not require any person who attempts to vote to identify himself other than by giving his name and address and that they must accept the vote of that person without question, even though that person is known by them not to be the person whose name is given, if the voter swears, after being challenged, that he is, in fact, that person.
(b) That in the First District of the First Ward the following voters came to the polling place to vote and were informed that their names had already been voted: Alexander McGill, Leona Hayes, George Phillips, Alfred J. Green and John Moore.
(c) That in the same district an unknown white man, although challenged, voted the name of Theodore Johnson who was entered in the Books of Registered Voters as colored.
(d) That in the same district, a person who first gave his name...
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...here. (See also: McQuagge v. Conrad, (1953) 65 So.2d 851; Suttle v. Sullivan, (1955) 131 Colo. 519, 283 P.2d 636; Lammot v. Walz, (1954) 48 Del. 532, 107 A.2d 905; 29 C.J.S., Elections, sec. 268b(4).) In the absence of an allegation that the results of the election were changed by the alleg......
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...v. Conrad, (Fla. 1953,) 65 So.2d 851; Suttle v. Sullivan (1955,) 131 Colo. 519, 283 [25 Ill.2d 125] P.2d 636; Lammot v. Walz, (1954,) 9 Terry 532, 48 Del. 532, 107 A.2d 905; 29 C.J.S. Elections § 268 b(4).) In the absence of an allegation that the results of the election were changed by the......
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...v. Hedrick, 294 Mo. 21, 241 S.W. 402. This rule was also recognized in the Superior Court of this state in the case of Lammot v. Walz, 9 Terry 532, 107 A.2d 905. See generally 2 Davis Adm.Law, Sec. Where substantial evidence is presented showing that such a board is guilty of bias, a court ......
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