Rash v. Allen

• Court: Superior Court of Delaware
• Writing for the Court: PENNEWILL, C. J.
• Citation: 1 Boyce 444,76 A. 370
• Parties: RASH v. ALLEN. ROSS v. ALLMOND.
• Decision Date: 07 June 1910

76 A. 370
1 Boyce 444

RASH
v.
ALLEN.
ROSS
v.
ALLMOND.

Superior Court of Delaware. New Castle.

June 7, 1910.

76 A. 371

Election contest actions by Benjamin B. Allen against Walter Rash and by Charles 11, Allmond against Howard D. Ross. A hearing before the city council of Wilmington resulted in favor of contestants, and the Superior Court of New Castle County, on certiorari, certified the cases to the court in banc. Reversed.

Argued before PENNEWILL, C. J., and BOTCE, CONRAD, WOOLLEY, and HASTINGS, JJ., sitting as a Court in Banc in New Castle county.

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.

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,

76 A. 372

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, art. 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."

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 opinions:

PENNEWILL, C. J., with whom concurred CONRAD and HASTINGS, JJ., delivered the opinion of the Court.

Writs of certiorari were issued by the Superior Court of this county to the council of the mayor and council of Wilmington, commanding the 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:

"If any candidate for any of the offices before mentioned shall choose to contest the right of any person claiming to have been elected to such office, such candidate shall, within thirty days next after such election, cause to be presented to the said council of Wilmington, his petition in writing, setting forth particularly the grounds and specifications upon which said election is contested, together with an affidavit that such petition is not for the purpose of vexation and delay but that he does verily believe that he has just grounds for contesting such election, and shall also at the same time cause to be delivered to the person whose election is contested a true copy of said petition. Upon the filing of such petition and affidavit, the council shall appoint a day not less than ten nor more than fifteen days from the time of filing such petition and affidavit, for hearing and determining the same, giving public notice thereof in two newspapers published in the city of Wilmington, if so many be published at that time, and upon the day appointed for such a hearing the said city council shall sit in the city hall, in the presence of such citizens and others as may choose to be present, shall hear the allegations and proofs of the party, and shall determine according to the very right of the matter. Evidence shall be confined to the grounds and specifications set forth in the petition. The council shall have power to issue subpoenas, signed by the president of council for the time being, and attested by the clerk, for persons and papers, including all poll lists, tally lists, statements and certificates delivered to the department of elections, clerk of council, mayor of the city, or any of them, to administer oaths and affirmations, to examine witnesses, and to do all other things requisite to arrive at a full and perfect knowledge as to the right of the case. The decision of the council, signed by its officers, shall be published in two newspapers printed in the city of Wilmington, if so many be published at that time, and shall be final and conclusive."

And also section 30, c. 207, vol. 17, Laws of Delaware, as amended by volume 18, c. 660, Laws of Delaware, which is as follows:

"The council shall hold a meeting for organization (on the first day of July next ensuing the city election, or if that day falls on a Sunday, then on the Monday following), and shall further meet at least once in every month, at which time or times and place as it shall appoint. Special meetings may be called by the mayor upon his own motion, or shall be called at the request of five members. The sittings of the council shall be public. It shall be the judge of the election returns and qualification of its members, and of all officers of the corporation. It shall choose its officers except where otherwise provided for in this charter. It shall determine the rules of its proceedings, and keep a journal of the same."

Acting under the authority conferred by said statutes the city council of the city of Wilmington proceeded 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 5th day of June, 1909, and also the case in which Benjamin B. Allen contested the election of Walter Rash, who

76 A. 373

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 below 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, vol. 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 of 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.

The act published as chapter 177, vol. 24, and entitled "An act to alter and re-establish the statutes relating to the city of Wilmington," reads as follows:

"Sec. 3. That section 29 of said chapter 207, volume 17, Laws of Delaware, as amended, be amended by striking out all of said section, and inserting in lieu thereof a new section to be known as section 29, as follows :

"'On and after the first day of July, A. D. 1907, the council shall consist of a president of council and twelve other members. At the city election to be held on the first Saturday in June, A. D. 1907, and every fourth year thereafter, there shall be elected a president of council and twelve members of council, for the term of two years commencing on the first day of July next succeeding said election. The president of council shall be the presiding officer, and a member of said council and shall be elected from the city at large by a plurality of all the votes cast in the several election districts of the city. One member of council shall be elected from each ward of the city by a plurality of all the votes cast therein.'

"Sec. 4. That section 32 of said chapter 207, volume 17, Laws of Delaware, as amended, be amended by striking out said section, and inserting in lieu thereof the following section, to be...