State v. McCoy

• Decision Date: 01 November 1896
• Court: Delaware Superior Court
• Parties: The STATE OF DELAWARE, upon the relation of JAMES FRANK ALLEE, et al., v. THOMAS MCCOY, et al., Inspectors of Election in the several Election Districts of County of Kent, in the State of Delaware

36 A. 355

16 Del. 465

The STATE OF DELAWARE, upon the relation of JAMES FRANK ALLEE, et al.,

v.

THOMAS MCCOY, et al., Inspectors of Election in the several Election Districts of County of Kent, in the State of Delaware

Superior Court of Delaware, Kent County

November 1, 1896

This was an application for a writ of mandamus to be directed to the inspectors of election of the several hundreds and election districts of Kent County, constituting the Board of Canvass of that County, to require them to reassemble and ascertain and certify the true state of the vote for officers voted for in the several hundreds and election districts of the County at the general election on the third day of November, A. D., 1896.

The petition was filed in vacation, on November 11, 1896, and a special term of the Superior Court was called, pursuant to the statute, to meet at Dover on November 19, 1896, all of which will appear in detail from the order made on the petition which is stated at large, infra.

The petitioners were the candidates for the offices of Senator and Representatives in the General Assembly, Sheriff Coroner, County Treasurer, Levy Court Commissioners and Delegates to the Constitutional Convention.

The allegations of the petition (or of such paragraphs of it as were material) were in substance as follows:

1. The names of the petitioners and their respective qualifications under the Constitution and Laws of Delaware for the offices to which they claimed to have been severally elected.

2. The names of all the candidates nominated by the different political partios to be voted for at the said election for the several offices then to be filled; all of which names were duly placed on the official ballot and voted for, for said several offices, respectively, at the election.

3. The County had been duly divided into sixteen voting precincts the names and location of which were set out in detail.

4. The General Election was held on the third day of November, A D., 1896, at the usual and legal voting places and the respondents were by election or appointment duly and legally constituted inspectors thereof.

5. The number of votes received by the petitioners and by each of the other persons nominated for the several county offices in fourteen of the sixteen specified voting precincts of the County were set out in detail, being summed up as, for example, for the office of State Senator the petitioner James F. Allee, received a total of votes returned to the Board of Canvass of 3358 votes, Samuel R. Meredith a total of 3259 votes, John Heitshu a total of 168 votes, and John Heyd a total of 125 votes, showing a plurality in favor of the petitioner, James F. Allee, of 99 votes for said office of State Senator.

It was further averred that in the Eastern Election District of Duck Creek Hundred no election was held on the third day of November, A. D., 1896, and that in the Hundred of West Dover an election was held but no return of the votes cast was made to the Board of Canvass, but that if a return of the votes cast had been duly made, it would have disclosed a plurality for the petitioner, James F. Allee, of ten or under.

The petition then stated in the same manner the number of votes received by each of all of said candidates for the respective offices for which they had been severally nominated as aforesaid, in each of the said several election districts except the Eastern Election District of Duck Creek Hundred and the West Dover Hundred Election District, as to which last mentioned districts it was averred, in the same manner, that in the former no election had been held, and that in the latter it was also averred, as above, that if a proper canvass had been made of the votes cast therein, each of the said relators would have had a plurality of at least ten votes.

6. The functions of the several officers charged with official duties in connection with the ascertainment and certification of the result of the election were described and set forth at large, viz: that of the inspectors to meet at the Court House in Dover on the Thursday next succeeding the general election; that of the Sheriff, or, in case of his death or absence, the Coroner, to attend as the presiding officer of the Board of Canvass; that of each inspector to deliver to the Sheriff or other presiding officer of the Board, the certificate of election, or in case it could not be produced then the ballot box for the Hundred might be opened and the certificate therein contained might be taken and used and again deposited in the box; that of the Board of Canvass publicly to ascertain the state of the election throughout the County and to make certificates thereof as required by law with respect to each office for which the election was held.

9. It was further averred that the inspectors of the several Hundreds and Elections Districts of the County, did meet at the time and place so provided by law, and that the Sheriff did attend and remain continuously until the adjournment, he and the inspectors constituting the Board of Canvass of which the Sheriff was the legal presiding officer. At the said time and place each of the inspectors of the Hundreds and Election Districts where elections were held, with the exception of the inspector for West Dover Hundred, did deliver to the Sheriff, as such presiding officer, the certificate of election for his Hundred or Election District.

11. And the Board of Canvass did not open the ballot box for West Dover Hundred and take out and use the certificate therein contained, as under the law it was their duty to do.

12. It was further averred that the Board of Canvass did not publicly ascertain the state of the election throughout the County by calculating the aggregate amount of all the votes for each office that had been given in all the Hundreds and Election Districts of the County for every person voted for for such office, but, on the contrary, though assembled for that purpose, refused so to ascertain the state of the election, although requested to do so.

13. It was expressly averred that the Board of Canvass refused to calculate the number of votes for every person voted for for each office in Election Districts Nos. 1 and 2 of East Dover Hundred, No. 2 of South Murderkill Hundred, and the Western Election District of Milford Hundred.

14. And that the Board of Canvass did not, before any adjournment or separation, make any legal and proper certificates of election as prescribed by law.

15, 16. It was further averred that certain of the defendants, to wit, Thomas McCoy, the inspector for Eastern Election District of Duck Creek Hundred, Abel S. Farries, the inspector for Western Election District of Duck Creek Hundred, William H. Greenwell, the inspector for Kenton Hundred, John L. Scotten, the inspector for Little Creek Hundred, Thomas H. Baxter, the inspector for West Dover Hundred, William H. Walker, the inspector for Election District No. 2 of East Dover Hundred, Alexander J. Draper, the inspector for West Election District of North Murderkill Hundred, Samuel C. Hughes, the inspector for Election District No. 1 of South Murderkill Hundred, John W. Sheldrake, the inspector for Election District No. 1 of Mispillion Hundred, Frank Tumlin, the inspector for Election District No. 2 of Mispillion Hundred, did at the time and place prescribed by law pretend to ascertain the state of the election throughout the County, but calculated the number of the votes for each office that had been given only in the following Hundreds and Election Districts, to wit: The Western Election District of Duck Creek Hundred Little Creek Hundred, Kenton Hundred, Third Election District of East Dover Hundred, West Election District of North Murderkill Hundred, Election District No. 1 of South Murderkill Hundred, Election District No. 1 of Mispillion Hundred, and Election District No. 2 of Mispillion Hundred, and did refuse to calculate the number of the votes for such officers in all the remaining hundreds and election districts for said County, and did, as a result of said ascertainment, knowingly, illegally and wrongfully make, sign, and deliver, false, incorrect, misleading, and illegal certificates of said election to certain candidates for the offices voted for in said County who had not received a majority or plurality of the votes cast in said County for each of said offices respectively.

17. This action it was charged was an attempt to deprive each of the petitioners of the office to which he was justly and legally entitled and worked an injury and detriment to each of the petitioners.

18. And in each and every of the Hundreds and Election Districts of which the last mentioned members of the Board of Canvass refused to calculate the votes, a large plurality of the votes cast were for each of the petitioners.

19. It was further averred that certain of said inspectors constituting a portion of said Board of Canvass, to wit Erasmus D. Burton, inspector for Election District No. 1 of East Dover Hundred, John S. Rowan, Inspector for Third Election District of East Dover Hundred, Levi G. Sterner, Inspector for Eastern Election District of North Murderkill Hundred, Benjamin T. Conwell, Inspector for Election District No. 2 of South Murderkill Hundred, Clarence Mason, Inspector for Eastern Election District of Milford Hundred, and Charles Macklin, Inspector for Western Election District of Milford Hundred, did, on the day and year aforesaid, meet with the other of said Inspectors at the County Court House of said County, and constituting a portion of said Board of Canvass, did publicly, in the presence of such electors of the County as thought proper to be present, ascertain the state of the election throughout the County by calculating...