State ex rel. Battaglia v. Delaware Dept. of Elections, for New Castle County

• Decision Date: 10 September 1975
• Citation: 344 A.2d 225
• Parties: STATE ex rel. Basil R. BATTAGLIA, Plaintiff below, Appellant, v. The DELAWARE DEPARTMENT OF ELECTIONS, FOR NEW CASTLE COUNTY, et al., Defendants below, Appellees. The DELAWARE DEPARTMENT OF ELECTIONS, FOR NEW CASTLE COUNTY, et al., Defendants below, Cross-Appellant, v. STATE ex rel. Basil R. BATTAGLIA, Plaintiff below, Cross-Appellee.
• Court: Supreme Court of Delaware

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344 A.2d 225 STATE ex rel. Basil R. BATTAGLIA, Plaintiff below, Appellant,
v.
The DELAWARE DEPARTMENT OF ELECTIONS, FOR NEW CASTLE COUNTY,
et al., Defendants below, Appellees.
The DELAWARE DEPARTMENT OF ELECTIONS, FOR NEW CASTLE COUNTY,
et al., Defendants below, Cross-Appellant,
v.
STATE ex rel. Basil R. BATTAGLIA, Plaintiff below, Cross-Appellee. Supreme Court of Delaware. Submitted Aug. 12, 1975.
Decided Aug. 12, 1975.
Opinion Sept. 10, 1975.

Upon appeal from Superior Court. Affirmed.

Joseph S. Yucht, of Balick & Yucht, and Lester J. Taufen, of Taufen & Brewster, Wilmington, for plaintiff below, appellant.

Charles Snyderman, Deputy Atty. Gen., Wilmington, for defendant below, appellee and cross-appellant, the Delaware Department of Elections for New Castle County.

Sidney Balick and William E. Wright, of Aerenson & Balick, Wilmington, for intervenor on appeal, Speaker of the House Casimir S. Jonkiert.

Before HERRMANN, Chief Justice, DUFFY and McNEILLY, Justices.

HERRMANN, Chief Justice.

This is an appeal from the denial by the Superior Court of a writ of prohibition sought by the plaintiff to prevent the holding of a special election on the date set. The determinative question is whether the Speaker of the House of Representatives had the legal authority to issue a writ of election under the circumstances.

On July 28, 1975, pursuant to proclamation of the Governor, the General Assembly was recalled into session for the purpose of considering certain revenue measures. At the close of the day, the Speaker recessed the House of Representatives 'to the call of the Chair.' On July 30, 1975, Representative Francis M. Jornlin, of the 6th Representative District of New Castle County, died. A writ of election was issued by the Speaker on August 6th,

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pursuant to 15 Del.C. § 7101, ¹ mandating the New Castle County Department of Elections to hold a special election under 15 Del.C. § 7104 ² to fill the vacant seat within 10 or 11 days from the date of the writ. The Department set the election for Saturday, August 16th.

Plaintiff, a resident of the 6th District, petitioned the Superior Court for a writ of prohibition to prevent the Department from conducting the August 16 election. His contention was that the Speaker lacked the authority to call the election because the House on July 30th--the date the vacancy occurred--was not 'in session', a prerequisite for the exercise of such authority. Consequently, he argued, a writ of election could not have been properly issued to the Department for at least 30 days after the vacancy, and then only after the Governor had convened the General Assembly under 15 Del.C. § 7103. ³ The Department maintained that a writ of prohibition could not lie against it to prevent a purely ministerial function--the carrying out of the Speaker's mandate; and the Speaker contended ⁴ that he had the authority to call the election.

The writ of prohibition was denied on the merits by the Superior Court on August 8. The plaintiff appealed from the denial of the writ and the Department cross-appealed from the lower Court's ruling concerning its availability. After argument, the decision below was upheld by this...