Rash Below v. Benjamin B. Allen, Complainant Below. Howard D. Ross, Below v. Charles M. Allmond, Complainant Below
Decision Date | 07 June 1910 |
Citation | 24 Del. 444,76 A. 370 |
Court | Delaware Superior Court |
Parties | WALTER RASH, respondent below, v. BENJAMIN B. ALLEN, complainant below. HOWARD D. ROSS, respondent below, v. CHARLES M. ALLMOND, complainant below |
CERTIORARI to The Council of Wilmington.
Writs of certiorari were issued by the Superior Court for New Castle County in the above stated cases (being Nos. 71 and 72, respectively, to the September Term A. D. 1909), to "The Council" of The Mayor and Council of Wilmington, commanding the Council to certify to the said Superior Court (comprising Chief Justice Pennewill and Associate Judges Conrad and Woolley) true and complete records of their proceedings in said cases. Such records were duly returned to said Court. Thereupon, upon application of counsel that said cases be heard and determined by the Court in Banc--the counsel for the respective parties first agreeing that the two cases should be argued together, that the judgment of the Court should be entered in each case, and that the decision of the Court in Banc should be final,--the said cases were accordingly certified from said Superior Court to the Court in Banc, under Section 15, Article 4 of the Constitution of Delaware, which provides:--"Whenever the Superior Court, Court of Oyer and Terminer or Court of General Sessions shall consider that a question of law ought to be heard by the Court in Banc, they shall have power, upon application of either party, to direct it to be so heard; and in that case the Court in Banc shall consist of the Chief Justice and the four Associate Judges."
Philip Q. Churchman, Robert H. Richards, Philip L. Garrett, Harry P Joslyn and Frank L. Speakman for plaintiffs in certiorari.
J Harvey Whiteman and Thomas F. Bayard for respondents.
OPINION
After listening to exhaustive arguments and the presentation of masterful briefs, by the respective counsel, and considering the same for several months, the said Court in Banc, on June 7, 1910, delivered the following opinion:
Writs of certiorari were issued by the Superior Court of this county to The Council of the Mayor and Council of Wilmington, commanding Council to certify to the said Court true and complete records of their proceedings in the above stated cases.
Such records were duly returned, and said Court is required to review the proceedings of said City Council, if it has the power to do so under the Constitution and laws of the State for the purpose of determining whether the Council had jurisdiction of said cases.
The authority claimed by The Council for the right to hear and determine the said contested election cases is found in the following statutes, viz.:
"An Act in Relation to Municipal Elections to be held in the City of Wilmington," being Chapter 727, Volume 19, Laws of Delaware.
Section 27 of said Act is as follows:
Acting under the authority conferred by said statutes the City Council of the City of Wilmingtonproceeded to hear and determine the case in which Charles M. Allmond contested the election of Howard D. Ross, who had been returned and certified duly elected Treasurer of the City of Wilmington at an election held on the fifth day of June, 1909; and also the case in which Benjamin B. Allen contested the election of Walter Rash who had been returned and certified duly elected a member of The Council of the City of Wilmington at said election.
Each of said cases was, after hearing, determined in favor of the contestant, it being held that the contestee was not entitled to the office in question, and that the contestant was.
It was considered by the Superior Court that the questions of law involved in said cases should be heard by the Court in Banc, and accordingly they directed them to be so heard.
It was agreed between counsel that the two cases should be argued together, that the judgment of the Court should be entered in each case, and that such judgment should be final.
It may be said, broadly, that there are two principal questions involved in the cases before the Court.
First, the jurisdiction of this Court; and
Second, the jurisdiction of the City Council or Court below.
There has never been, perhaps, in the history of this State, a case prepared with more thoroughness, labor and care, or presented to the Court with more ability, clearness and force, than those now before us. It is because of such fact, as well as on account of the important questions involved, that we have given to the cases so much time, labor and thought.
Many exceptions have been filed by the respondents to the record of the lower Court, but we shall not attempt to notice them specifically. Such exceptions may be divided into two classes, viz.:
First, those that challenge the constitutionality of Chapter 178, Volume 24, Laws of Delaware; and second, those that attack the validity of the judgments of the City Council because the record discloses that in hearing and determining the causes below The Council did not proceed in the manner prescribed by Section 27 of Chapter 727, Volume 19 of Delaware Laws.
In order that the questions raised may be clearly understood, it is necessary that certain Acts of the General Assembly, and certain constitutional provisions, shall be set out in whole or in part.
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