The STATE of Delaware, ex rel. James W. SMITH
James B. CAREY, resident Associate Judge in Sussex County, and Daniel L. Herrmann, Associate Judge, who constitute the Superior Court of Sussex County and the Board of Canvass thereof under Section 6 of Article V of the Constitution of the State of Delaware, and Raymond M. Lank, Intervener.
Proceeding for writ of mandamus directing Board of Canvass to reconvene and recanvass vote and issue to relator a certificate of election. A Supreme Court, Southerland, C. J., held that convening of House of Representatives did not necessarily strip court of jurisdiction theretofore acquired in proceeding for writ of mandate but held that since the House had thereafter assumed jurisdiction of election contest, court would decline to exercise its jurisdiction over the Board of Canvass.
Houston Wilson, Georgetown, for relator.
Daniel J. Layton, Jr., and W. Howard Thompson, Georgetown, for intervener.
SOUTHERLAND, C. J., and WOLCOTT and BRAMHALL, JJ., sitting.
SOUTHERLAND, Chief Justice.
James W. Smith, the relator, seeks a writ of mandamus to the Superior Court of Sussex County, sitting as the Board of Canvass, directing it to reconvene and recanvass the vote and issue to him a certificate of election.
The essential question is whether in the circumstances presented this Court should in the exercise of a sound discretion entertain the petition. The facts are these:
At the general election held November 2, 1954, James W. Smith and Raymond M. Lank were the opposing candidates for the office of Representative in the General Assembly from the Tenth Representative District of Sussex. The Superior Court, sitting as the Board of Canvass, found that Smith had received 2610 votes and Lank 2735 votes and issued certificates of Lank's election. The votes counted included those cast by absentee ballot under the provisions of the absentee voting laws.15 Del.C. Ch. 55, as amended in 1953 by 49 Del.L. Ch. 278. Without the absentee ballots Smith would have been elected. Smith, the relator, moves for summary judgment. He asserts that the absentee voting laws are unconstitutional; that all absentee [49 Del. 145] ballots should have been rejected; and that this Court should direct the Board of Canvass to issue to him a certificate of election.
Lank has intervened and answered, and has also moved to dismiss the petition for lack of jurisdiction.
From the afffidavits supporting the motions of the parties the following facts appear:
On December 11, 1954 Smith served upon Lank written notice of his intent to contest the election, and on December 17th served written specification of the grounds relied upon. On January 4, 1955, the opening session of the House of Representatives of the General Assembly convened. Smith's counsel presented to the presiding officer a petition to contest the election, accompanied by copies of the notice and specifications referred to. All of this procedure is required by the provisions of 15 Del.C. § 5901 ff., relating to contested elections of members of the General Assembly.
Thereafter, during the course of the same session, the House adopted the following resolution:
‘ Resolved, That Raymond M. Lank, who has been certified and returned by the Superior Court of Sussex County, sitting as the Board of Canvass thereof, as elected to the office of Representative in the General Assembly of the State of Delaware from Representative District Number Ten in Sussex County, shall retain his seat as a member of this House upon taking and subscribing the prescribed oath: Subject, Always, to the Contested Election this day filed against his election and return by James W. Smith and to the right and power of this House, upon final hearing, determination and judgment in the matter of such Contested Election, to unseat him, the said Raymond M. Lank, and to seat the contestant, James W. Smith, in his place and stead; and further,
‘ Resolved, That such ...