Certiorari proceedings to review the proceedings of the Council of the Mayor and Council of Wilmington pertaining to election contests growing out of the municipal election of the City of Wilmington held on June 6, 1953. The Superior Court, Terry, J., held that paragraph of petition in proceedings to contest alleged election of candidate for office of Mayor of Wilmington at city election which alleged that election officers in stated district and ward fraudulently denied 145 legal voters right to cast ballots for reason their names already had been voted, justified inference of fraud on part of election officers in such district, but that paragraph was insufficient because not alleging that alleged fraudulent practices or any alleged illegal votes accrued to benefit of contestee or that election result would be changed by correction of alleged wrongs.
Orders in accordance with opinion.
See also 97 A.2d 547.
[48 Del. 534] Action by contestant to review by certiorari the proceedings of Council of the Mayor & Council of Wilmington in election contests growing out of the municipal election in the City of Wilmington held on June 6, 1953.
James L. Latchum of the Firm of Berl, Potter & Anderson, and Michael A. Poppiti, Wilmington, for contestant.
Clair J. Killoran, David Snellenburg of the Firm of Killoran & VanBrunt, and Robert H. Richards, Jr., of the Firm of Richards, Layton & Finger, Wilmington, for the contestee.
This action and eleven others (being Nos. 1220 through 1230 Civil Actions, 1953), all of which have been consolidated in the above action in accordance with Rule 42(a) of this Court, Del.C.Ann., are before me on Writs of Certiorari to review the proceedings of the Council of the Mayor and Council of Wilmington (hereinafter referred to as Council) pertaining to election contests growing out of the municipal election of the City of Wilmington held on June 6, 1953. All of the actions below (12)
[48 Del. 535] contested the right of the contestees, who were purportedly elected to certain offices in the City of Wilmington on June 6, 1953 to hold such offices.
The petitions forming the basis of these actions were filed pursuant to Section 27, Chapter 727, Volume 19, Laws of Delaware, by the Democratic candidates for the Office of Mayor, President of City Council, Treasurer, Northern Tax Collector and Councilmen from the First, Second, Third, Fourth, Fifth, Seventh, Eighth and Ninth Wards contesting the elections of their adversaries voted for the Wilmington City Election held on June 6, 1953. The respective petitions were filed on July 3, 1953 within thirty days next after said election as prescribed by Section 27, aforesaid. The petitions are in writing and allegedly set forth with particularity, as indicated therein, the grounds and specifications
upon which the elections were contested. The petitions are under oath and accompanied by an affidavit that they were not filed for the purpose of vexation or delay.
Council on July 9, 1953 adopted a resolution setting the petitions down for hearing on July 17, 1953, a date within the prescribed fifteen day period from the time of filing such petitions. On July 16, 1953, the day preceding the scheduled hearing, the contestees filed motions to dismiss the several petitions. The grounds assigned are (1) that the petitions fail to state the grounds and specifications of the contest with sufficient particularity, and (2) it does not appear from the facts alleged that the result of the elections would be changed by correcting the wrongs complained of.
Over objections by contestants, Council proceeded by resolution to require briefs to be filed by all parties relating to the motions to dismiss. Contestants objected to any Council members whose election was contested in taking any part in ruling upon the contestees' motions to dismiss. These objections were overruled.
Briefs were filed by attorneys for all interested parties in accordance with schedule. The contestees' motions to dismiss [48 Del. 536] were argued orally before Council on September 8, 1953. At the conclusion of the arguments Council adopted a motion to reserve decision upon the contestees' motions. On October 8, 1953 Council passed a resolution dismissing each of the twelve petitions. On December 15, 1953 each contestant filed a praecipe for the Writ of Certiorari to Council. On December 28, 1953 a stipulation and order was entered in the above case which consolidated all of the election contests in this civil action pursuant to Rule 42(a) of this Court because of the common questions of law involved and in order to avoid unnecessary costs and delay. On January 6, 1954 the contestants filed their exceptions to the record below and the matter is now before me on these exceptions.
The statute involved is as follows:
‘ Section 27. If any candidate for any of the offices before mentioned shall choose to contest the right of any person claiming to have been elected to such office, such candidate shall, within thirty days next after such election, cause to be presented to the said council of Wilmington, his petition, in writing, setting forth particularly the grounds and specifications upon which said election is contested, together with an affidavit that such petition is not for the purpose of vexation and delay but that he does verily believe that he has just grounds for contesting such election; and shall also, at the same time, cause to be delivered to the person whose election is contested, a true copy of such petition. Upon the filing of such petition and affidavit the council shall appoint a day, not less than ten nor more than fifteen days from the time of filing such petition and affidavit for hearing and determining the same, giving public notice thereof in two newspapers published in the city of Wilmington, if so many be published at that time, and upon the day appointed for such a hearing the said city council shall sit in the city hall, in the presence of such citizens and others as may choose to be present, shall hear the allegations and proofs of the party, and shall determine [48 Del. 537] according to the very right of the matter. Evidence shall be confined to the grounds and specifications set forth in the petition. The council shall have power to issue subpoenas, signed by the president of council for the time being, and attested by the clerk, for persons and papers (including all poll lists, tally lists, statements and certificates delivered to the department of elections, clerk of council, mayor of the city, or any of them), to administer oaths and affirmations, to examine witnesses, and to do all other things requisite to arrive at a full and perfect knowledge as to the
right of the case. The decision of the council, signed by its officers, shall be published in two newspapers printed in the city of Wilmington, if so many be published at that time, and shall be final and conclusive.’
For the purpose of this opinion I shall deal only with the petition filed by Eugene Lammot, the Democratic candidate for the Office of Mayor for the City of Wilmington, contesting the alleged election of his opponent, August F. Walz, the Republican candidate for the Office of Mayor of the City of Wilmington at the Wilmington City Election held on June 6, 1953, who claims to have been duly elected to said office.
‘ Your petitioner, Eugene Lammot, respectfully represents:
1. That he was the Democratic candidate for office of Mayor of the City of Wilmington at the City election held on June 6, 1953, and that he does hereby contest the right of August F. Walz, Republican ...