State v. Lewis

28 Del. 213 | Del. Super. Ct. | 1914

Boyce, J.,

delivering the opinion of the court:

This is a motion to quash the return for insufficiency, uncertainty, argumentativeness and as being contrary to law.

This motion is resisted for three reasons: First, that the answer conclusively shows that the Department of Elections in the appointment of said registration and election officers acted within its discretion and in accordance with the law; second, that in the manner of making the appointments the provisions of the statute are merely directory and not mandatory; and third, that if the court should hold, that the provisions of statute in regard to the manner of the appointments of said registration and election officers is mandatory then said provision of law is unconstitutional.

The contention made by the respondents on the first proposition is the same as was urged on the motion to discharge the rule and dismiss the petition, and the authorities then cited are relied upon.

Our attention is directed to errors and mistakes in the list filed as set out in the return, and it is urged that the Department of Elections in the exercise of its discretion had a right to disregard the entire list, and to make the appointments independently thereof. That the duties imposed under the statute are judicial and not ministerial.

[4] It is further urged that the provision of the statute requiring “that the total number of registration officers in each representative district, shall be divided as equally as possible between the two leading political parties, as the same shall be determined upon by the Department of Elections at the time of making the appointments” is unconstitutional in that it conflicts with Article 14 of the state Constitution entitled “Oath of Office,” which after prescribing the oath for public officers provides that “no other oath, declaration or test shall be required as a qualification for any office of public trust.”

The authorities relied upon are Attorney General v. Detroit, 58 Mich. 213, 24 N. W. 887, 55 Am. Rep. 675; State ex rel. Holt v. Denny, 118 Ind. 449, 21 N. E. 274, 4 L. R. A. 65; People ex rel. Le Roy v. Hurlbut, 24 Mich. 44, 9 Am. Rep. 103; Rathbone v. Wirth, 150 N. Y. 459, 45 N. E. 15, 34 L. R. A. 408; Baltimore v. State, 15 Md. 376, 74 Am. Dec. 572; and Bowden v. Bedell, 68 N. J. Law, 451, 53 Atl. 198.

We will dispose of the last proposition immediately.

It is said in 15 Cyc. 313, F:

“This subject, however, has not been much attended to in other jurisdictions, but where the question has been raised it has been held that such a provision does not establish such a political test of office as is repugnant to the Constitution, but is rather a rule for the guidance of the appointing power.”

Without going into a general discussion of the question raised, we think the provision of the statute objected to as unconstitutional is reasonable within legislative intendment to promote fair elections, and that it is not within the prohibitory clause of the Constitution or repugnant thereto. In re Wortman (Sup.) 2 N. Y. Supp. 324; State v. McAllister, 38 W. Va. 485, 18 S. E. 770, 24 L. R. A. 343; Rogers v. Buffalo, 123 N. Y. 173, 25 N. E. 274, 9 L. R. A. 579; and Com. v. Plaisted, 148 Mass. 375, 19 N. E. 224, 2 L. R. A. 142, 12 Am. St. Rep. 566. Other cases cited: People D. Hoffman, 116 Ill. 587, 5 N. E. 596, 8 N. E. 788, 56 Am. Rep. 793; State v. Kinney, 63 Ohio St. 304, 58 N. E. 809; State v. Finger, 48 Ohio St. 505, 28 N. E. 135; In re Elec. Sup’rs (C. C.) 43 Fed. 859; In re Appt. Elec. Sup’rs (C. C.) 9 Fed. 14, 20 Blatchf. 13; Vincent v. Mott, 163 Cal. 342, 125 Pac. 346; Skain v. Mil-ward, 138 Ky. 200, 127 S. W. 773:

Proceeding to the consideration of the merits of this case, we cannot now do much more than announce the conclusions which the court has reached.

[5] First, we deem it important to say that in the selection of persons for registration officers too great care cannot be exercised. Efficient, reasonable and fair-minded men should be appointed—men who will discharge their official duties faithfully without bias or prejudice. An error in residence or disqualification as a voter in a particular district should not prevent an appointment from the rest of the list for such district if composed of proper persons. A spirit of fairness dictates such a course. One list from each of the two leading parties covering the districts of the entire city is all that is required by the statute. The practical effect of this is that it constitutes a distinct list for each district.

A fatal defect in the list with respect to one or more districts does not have the effect in law or good reason to vitiate and make illegal the remainder of the list. So far as the list which is required to be filed is in full compliance with the statute with respect to one or more districts, it is good and sufficient as to such district or districts. The list filed with the Department of Elections which has been under consideration does not appear to have been prepared with careful attention. But this fact does not warrant the action taken thereon with respect to some of the districts in question. The object of the statute is obvious, and the appointing power should never lightly disregard its purpose.

[6] The Department of Elections in making the appointments of registration officers must as a preliminary step determine whether proper persons have been named in the lists filed with them, and whether the qualifications required by the statute exist; but such determination is administrative and not of such judicial and final character as will prevent a review of their action by mandamus; for, “if it should be held that in all cases the determination of such preliminary questions calls for the exercise of judicial discretion, the writ of mandamus, as has often been said, might as well be expunged from the remedial code.” Merrill on Mandamus, § 44. The same author says the weight of authority seems to be that erroneous decisions as to preliminary questions of law may be reviewed by this writ; that erroneous decisions as to preliminary questions of fact may be reviewed, unless .the general nature of the duties to be performed are considered to be judicial, or the law intended that such decision should be final. Id. § 48. This statement of the law is fully supported by the decisions.

[7] We think the case at bar is distinguished from the case of Oxy-Hydrogen Co. v. Simmons et al., in 3 Penn. 291, 50 Atl. 213. The duties here are certain, positive, similar and successive, and present no conditions to prevent one procedure for the relief sought. The alternative writ is, therefore, not duplicitous.

[8] The respondents in their return cannot merely rely upon the powers with which they are clothed by the statute and allege that they have performed. The office of the return is to show a right to refuse obedience to the alternative writ, and it must be good, as tested by the ordinary rules of pleading. It must deny the allegations of the writ or show other facts sufficient to defeat the claim of the relator.

[9] The question now is whether upon the face of the return, the condition of the relator is so changed as to prevent the issuance of the peremptory writ. The court may quash part of the return and hold part sufficient. State ex rel. Lindsay et al. v. J. & M. P. Co., 7 Penn. 397, 72 Atl. 1057.

All allegations in the alternative writ sufficiently pleaded and not denied by the return are to be taken as admitted. By the return, the allegations in the first, third, fourth (except in so far as the latter charges fraudulent and illegal neglect, etc.) and seventh paragraphs of the petition are admitted.

As to the second paragraph it is admitted that on the date alleged therein “the said James Saulsbury, then representing himself to be chairman of the City Executive Committee of the Democratic party for the City of Wilmington, filed with the Department of Elections for the City of Wilmington, a list purporting to be a list of registration and election officers which had theretofore been submitted by the respective ward-chairman to the Democratic Committee, which said list is in the words and figures following. [Here follows a copy of the list filed.]” But as to the said second paragraph the respondents “wholly deny * * * that a list of three and more names of properly qualified persons for each election district in the City'of Wilmington from which said names the Department of Elections for the City of Wilmington was compelled by law to select names for each appointment accredited to the Democratic party as registrars, assistant registrars and election officers for the purpose of registering voters and holding the election to be held on the third day of November, A. D. 1914.”

A general denial is made of the fifth and sixth paragraphs. We do not think it necessary for the purpose of this case to incorporate those paragraphs in the opinion.

It is shown by the return that the list filed by the relator was filed on the twenty-eighth day of May, A. D. 1914, and that on the sixteenth day of June following, the Department of Elections for the City of Wilmington at its meeting accredited to the Democratic party two appointments for certain of the several one hundred and eighteen election districts in the City of Wilmington as therein mentioned, including the Fifth and Tenth Districts of the Third Ward, and the Tenth District of the Seventh Ward, being three of the districts in question, and likewise one appointment in certain other of said districts, including the Sixth District of the Second Ward, and the Third and Eleventh Districts of the Tenth Ward, the remaining three districts in question.

It.is averred that the executive committee of the Democratic party of the City of Wilmington did not furnish the Department of Elections on or before the first day of June, A. D. 1914, for each appointment so accredited to the Democratic party a list of three names of properly qualified persons from which list the Department of Elections was required to make said appointments, etc.; that the said list was incomplete, insufficient and not in accordance with law in the following respects. Here follow at length the reasons assigned. We do not think it necessary to incorporate these as most of them relate to other districts than those involved in this proceeding. The substance of the reasons assigned affecting the districts in question follows:

With respect to the three districts accredited with two Democratic appointments, it is averred in the return as to the first mentioned that one of the persons on the list, naming him, does not reside at the address given; as to the second, that one of the persons in- the list, naming him, does not reside in the district; and that two other persons on the list, naming them, do not reside at the addresses given; as to the third, that one of the persons on the list, naming him, does not reside at the address given, but at Atlantic City, State of New Jersey. With respect-to the remaining three districts accredited with one Democratic appointment, it is averred as to the first mentioned that three of the persons on the list, naming them, do not reside at the addresses given; as to the second that two of the persons, naming them, do not reside at the addresses given, and which are not located in the district, and that one of the persons named, is not a qualified voter, and as to the third, that one of the persons named removed from the address given before filing list, and another person named does not reside at the address given.

[10] The return must not be uncertain, argumentative or evasive.

[11, 12] The averments in the return that certain persons named in the list filed do not reside at the addresses given without further averring that such persons are not residents of the respective districts for which they were named is not sufficient answer to the alternative writ. The averment that a person named in the list does not reside in the district for which he was named is sufficient. The averment that a person named in the list is not a voter in the district for which he was named, when admitted as in this case, is sufficient. The statute makes it mandatory that the names of three persons shall be furnished as provided for each appointment accredited to any political party. So that where two appointments are accredited to a party for any district, and six names as required have been submitted for that district in the list required, and the return distinctly and sufficiently shows that one or more of such persons is disqualified, the list with respect to such district does not comply with the requirements of the statute; and the Department of Elections may, as to such district, disregard the remaining names on the list, and appoint other suitable persons.

The same principle applies when only one appointment is accredited to a party. And if, in such a case, six names are furnished, and three of the names are properly qualified persons, the appointment must be made from the list.

The return is insufficient as to the Sixth District of the Second Ward, the Third District of the Third Ward, and the Third and Eleventh Districts of the Tenth Ward, and as to these four districts the return is quashed. With respect to the appointments alleged to have been heretofore made in these four districts of persons whose names were not on the list furnished the Department of Elections, we will say that in contemplation of law the department in attempting to make these appointments exceeded the discretion permitted by the law. The return is sufficient as to the Fifth District of the Third Ward and the Tenth District of the Seventh Ward and as to thesé two districts, the motion to quash the return is denied.

It is ordered that a peremptory writ of mandamus as prayed for issue directed to the respondents with respect to the Sixth District of the Second Ward, the Third District of the Third Ward, the Third District of the Tenth Ward, and the Eleventh District of the Tenth Ward.