Action by candidate for mayor to restrain members of department of election from destroying ballots, poll lists, etc., until disposition of proposed election contest and to obtain appointment of custodian to guard such records. The Court of Chancery, Seitz, Chancellor, held that, where candidate's only reason for seeking restraint was his doubt as to defendant's duty to preserve such records, but the Court of Chancery determined that defendants had such duty, candidate would not have basis for relief since defendants would be bound to act in accordance with such legal duty.
Restraining order dissolved, rule to show cause discharged, and complaint dismissed.
[33 Del.Ch. 549] E. Ennalls Berl and James L. Latchum, of Berl, Potter & Anderson, and Michael A. Poppiti, of Wilmington, for plaintiff.
H. Albert Young, Atty. Gen., for defendants.
This is the decision on the defendants' motions to dismiss the complaint and to vacate a restraining order heretofore entered.
Plaintiff was the Democratic candidate for the office of Mayor of the city of Wilmington at the election held June 6, 1953. Defendants are the members of the Department of Elections for New Castle. A chronological statement of facts will reveal the issues involved.
Pursuant to the provisions of 19 Laws of Delaware, Chapter 727, Section 25 the members of the Department met on Monday, June 8 to canvass the vote cast at the election held June 6 for certain offices including the office of Mayor. The canvass admittedly showed a majority in favor of August F. Walz, the Republican candidate for Mayor and plaintiff alleged that the department was about to certify his election. Plaintiff has indicated that he intends to contest the election in accordance with the procedure provided by 19 Laws of Delaware, Chapter 727, Section 27. He alleges several grounds for his attack on the outcome of the election. However, those grounds can only be resolved by City Council pursuant to the mechanics provided by the said Section 27.
Plaintiff claims that under the existing statutory law governing an election for offices in the city of Wilmington there is no prohibition against the destruction at any time of the ballots, poll lists and certificates. It is also admitted that after the canvass the Department of Elections refused to give plaintiff's attorney positive assurance that the ballots would not be destroyed prior to the expiration of the time for filing a contest. Although they did indicate that they would seek a legal opinion as to their legal duty, [33 Del.Ch. 550] it does not appear that they committed themselves to communicate that opinion to plaintiff or his counsel prior to taking action thereon.
Plaintiff applied for a restraining order to prevent the destruction of the ballots, poll lists, etc., until the disposition of the proposed contest, and plaintiff further sought the appointment of a custodian to guard such records until the disposition of the proposed contest of the election.
Although defendants received short notice of the application, it is the fact that no one appeared in opposition thereto. The restraining order was granted because of the lack of any statute explicitly defining the duties if any of the Department of Elections with respect to the retention of the ballots, the poll lists and the certificates, and because the Department had refused to give any positive assurance that it would not destroy the ballots prior to the filing of a contest. I might point out that the granting of a restraining order should not be construed to be any reflection upon the good faith of the members of the Department, since the basis for issuance of the restraining order was the doubt as to the Department's legal duty if any, and, indeed, the same doubt apparently existed in the minds of the members of the Department because they saw fit to ask for a legal opinion thereon.
The defendants now seek to dismiss the complaint on the ground that the court lacked jurisdiction to entertain the action for several reasons but I now consider the contention that this ‘ Court has no jurisdiction to direct that records be removed from the possession, control and custody of the Department of Elections when it is granted such by statute.’
It is true, as plaintiff's counsel says, that 19 Laws of Delaware, Chapter 727, Section 20 when enacted provided that after the ballots have been counted by the election officials at the poll and their certificates made, ‘ the said ballots shall then be immediately destroyed unless any of the said ballots shall be disputed or rejected, in which case the said disputed or rejected ballots shall be placed with the said certificates in an envelope and sent to the Department of Elections.’ [33 Del.Ch. 551] In 1913 a statute was passed applying inter alia to city elections which required the election officials to place the ballots back in the envelopes and then in the ballot boxes, 27 Laws of Delaware, Chapter 65, Section 24. I have some doubt that this statute is still in effect, at least in general elections, but that is not too important to my conclusion in view of a later statute. Thus in 1945 by a statute found in 45 Laws of Delaware, Chapter 156, dealing with elections in the city of Wilmington, it is provided in part as follows:
‘ Section 23. The poll lists kept at such election shall be certified in writing by both poll clerks to be a true and correct list of the votes cast at the said election in their respective election districts, and shall be placed ...