State ex relatione Wright v. Warren — 6 Del. 39

Majority

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The State ex relatione Samuel Wright v. Charles H. Warren.

Headnote

Although no certificate or other formal mode of making known to a person his election to the office of road commissioner, or other public office, may be prescribed or required by law, the result of the election, when ascertained and announced at the close of it, is final and conclusive on the officers of the election, and cannot afterwards he reconsidered or altered by them.

This case arose on a motion for a rule on Charles H. Warren, the respondent, to show cause wherefore a writ, in the nature of a writ of quo warranta, should not issue against him for usurping the office of a road commissioner in Pencad'er Hundred, New Castle County.

The affidavit of Samuel Wright, on which the motion was founded, alleged that, on the first Tuesday in October, 1854, an election was held at Glasgow, in said Hundred, for the election of an inspector, assessor, and two road commissioners for said Hundred, of which Joseph Veach was the presiding officer, and Robert Cann and Wesley Clement were judges; and that, after the poll was closed, the presiding officer announced that Josiah Stanton was elected inspector and Adam Dyott assessor, and also declared that Samuel Rambo, and Samuel Wright, the -deponent, were elected road commissioners; that the presiding officer and judges of the election made and signed certi

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ficates of the election of the inspector and assessor, hut refused to give a certificate of the election of road commissioners, because the law did not require them to do it. That, acting upon the official announcement of his election by the presiding officer, the deponent applied to Daniel McCallister, a justice of the peace, who was also a clerk of the said election, to be sworn as a road commissioner of the Hundred, but he refused to administer the oath to the deponent, on the ground that he had not been elected to the office; and he then applied to the presiding officer and judges of the election for such a certificate, and was again refused by them, on the ground, as .they alleged, that, after the election, an error had been discovered in counting the votes, and that the said Charles H. Warren, who was also voted for as a road commissioner at the election, was the person elected, and not the deponent; although there was no announcement of his election by the. presiding officer on the day of the election, nor was the said Warren announced by the presiding officer and judges on that day to have been elected, nor was any certificate given to him by them of his election; and that the said Charles H. Warren' had since been sworn, had usurped, and was then pretending to exercise and perform, the powers and duties of the office of a road commissioner of the Hundred.

To this, Warren, the respondent, filed a counter-affidavit, in which he stated that, during the reading and tallying of the votes cast at said election, one ballot was found to contain the name of a person voted for as assessor and the names of two voted for as road commissioners, but the name of no one for the office of inspector; and that another ballot was found to contain the name of a person for inspector and the names of two persons for road commissioners, but the name of no one upon it for the office of assessor; and the judges of the election being in doubt at the time as to the sufficiency and legality of these two ballots, laid them aside for the purpose of examining the law more particularly in regard to their validity after the reading out was finished. That, when the reading out

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was finished, it appeared, excluding the two ballots above mentioned, the . said Samuel Wright had one vote more for the office of road commissioner than the deponent, but, counting and including those ballots, the deponent had one more for the office than the said Samuel Wright, the deponent having been voted for as a road commissioner on both of the said ballots. That the judges of the said election did not decide upon the validity of those two ballots until the next mbrning after the election, when they determined that the same were legal votes; and thereupon the deponent was informally notified of his election by David McCallister, one of the clerks of the election, who, being also a justice of the peace for the county, administered to the deponent the proper oath of office; and that, since he was so qualified, he had exercised, and still exercises, the said office. The affidavit concluded with a denial that any certificate, or formal proclamation by the officers of the election, of the election of road commissioners, was either usual or necessary, according to custom or the law }n such cases.

Rodney, for the State,

was proceeding to call his witnesses to sustain the statement of facts contained in the affidavit of the relator, and on which the motion for the rule was founded, when the counsel for the respondent interrupted . him.

D. M. Bates, for respondent:

Were witnesses to be heard in the present stage of the case ? There was nothing in the law in regard to the election of road commissioners that required any certificate, proclamation, or announcement by the officers of the election, that any one was elected; and there was nothing alleged in the affidavit of the relator which the court could inquire into, for he did not even allege that he was elected a road commissioner. All he alleged merely was that the presiding officer of the election announced at the close of it, after reading and ' counting the ballots, that he was elected. Besides, the

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affidavits of the relator and respondent did not contradict each other; and the affidavit of the latter showed that, in point of fact and according to the law of the case, which was for a time misapprehended by the judges,'he was duly elected.

Mr. Rodney:

This was not a suit between the relator and respondent involving a question of right or title to the office between them as the parties to such suit, but the writ might issue on the affidavit of any one, for it was not to inquire if the relator was elected, but by what authority the respondent held and exercised the office. Road commissioners are to be elected on a certain day appointed by law, and the election must be completed on that dáy. What constituted an election? The organization of the body to hold it, the casting of the ballots, the reading and counting of the same, and the determination of the resúlt by the officers appointed by law for the purpose; all of which must be done on that day, and none of which can be under the law adjourned" or deferred to another day. In point of fact the relator was prepared to prove that the election-of the respondent was not declared or determined until two weeks afterwards. To what frauds upon the purity, honesty, and legality of elections, would not the sanction of such a course as that necessarily lead! If the law did not require any certificate of election, what other or better evidence of an election like this could there ;be under the law than the official promulgation or public announcement by the judges of the election at the close of it ? • "

Mr. Batef:

The counsel on the other side had assumed a dangerous principle, that" any private individual could come into court and institute such a proceeding as this, at the cost of the State, in the name of the Attorney-General. The true principle and distinction was this: Any private person' in the case of a private office may, at his own discretion, become the relator, and institute such an in

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quiry; but, in the case of a public office, it could only be instituted by the Attorn ey-G-en eral himself. But the relator does not allege that Warren, the respondent, was not elected. He therefore did not state sufficient ground to induce the court to entertain the application. Ho one could move the court for an inquiry like this without alleging that the respondent, who is now invested with the office, and exercising the functions of it, did not reeeive a majority of the legal votes for it polled at the electian.

After some conversation between the counsel it was then agreed, to save time and to accommodate the witnesses present, the examination of them should proceed, reserving all questions of law arising in the case for the consideration and decision of the court afterwards.

Several witnesses were then examined, who testified that, after the election was closed and the votes were counted out, the judges and clerks and presiding officer ascertained the result, and announced that Mr. Wright and Mr. Rambo were elected roa.d commissioners. The board had no meeting after that day. The two votes mentioned in the affidavit of the respondent were rejected by the officers of the election at the time they were read as illegal, and were not laid aside for further consideration. The presiding officer testified that it was not Until he was on his- way home from the election that night that he began to doubt whether he had done right in rejecting them; and it was not until the next day, on looking into the “Digest,” that he became satisfied that he had erred in doing it; and the respondent was not sworn into office until six weeks after-wards.

At this stage of the case the only question before us- is on granting the rule to show cause, and without reference to the testimony of the witnesses who have been examined, an'd which properly and without consent could not have been heard at this stage of the proceeding,

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the court thinks there is sufficient ground disclosed, and grants the information on the affidavit filed, because the officers of the election passed judgment on the sufficiency and legality of the votes in question at the time of their rejection, or when they concluded not to count them, and it was not competent for them after the close of the election, and the result of it was ascertained and made known, to change or alter that result. Although no certificate, or other formal mode of making known to a person his election to the office of road commissioner, or any other public office, may be prescribed or required by law, the court considers that when the result of it is ascertained and announced at the close of it, it is final and conclusive on the officers of the election, and cannot afterwards be reconsidered or varied by them, as such a course might lead to gross abuses on the part of such officers ; and, if an error should be committed, it is not to be corrected by the method adopted in this instance.