Knight v. Ferris

11 Del. 283

Opinion

Saulsbury, Chancellor.

The provisions of the act of the General Assembly of this State in respect to the election of inspectors applicable to the questions considered in this opinion are: That an election for the purpose of choosing an inspector shall be held by ballot in the several hundreds in this State on the first Tuesday of October next, before the time of holding the general election, and at the places by law appointed for holding the general election.

The collector of each hundred shall be the presiding officer at the election so held in his hundred.

When the election shall be closed, the collector, or other presiding officer, and judges, shall forthwith read and count the votes given, and ascertain the number given for each candidate voted for as inspector.

The person having the highest number of votes for said office shall be chosen; but if two or more persons shall have an equal and at the same time the highest number of votes for said office, the presiding officer shall give an additional casting vote.

The collector, or other presiding officer, and the judges shall, upon ascertaining the result of the election, make and sign three certificates thereof, and shall cause the same to be transmitted without delay, to wit: one to the inspector elected, one to the clerk of the peace of the county, and one to the sheriff of the county.

Such certificates shall be conclusive and the election shall not be liable to be contested.

Ziba Ferris preferred his petition to the Superior Court in and for Sussex County, at the October Term, 1880, therein stating, among other things, that an election was held in the fourteenth election district of the hundred and city of Wilmington, said election district being in the ninth ward, in the hundred and city of Wilmington, on Tuesday, the fifth day of October, 1880, for the purpose of electing an inspector and assessor for said district; and that Edmund C. Knight, George W. Kennedy, Sr., and Linsley L. Pierce, were judges of said election. That, at said election the petitioner received two hundred and four (204) votes, and Jesse U. Johnson received two hundred and three (203) votes, for the office of inspector. The petitioner also states that the petitioner having received the highest number of votes for said office of inspector was chosen as such inspector, and that Knight, the presiding officer, and the said two other judges, ascer t-ained and declared that the petitioner was chosen inspector of said election district. The petitioner also states that the petitioner and Johnson were the only candidates voted for at the said election for said office of inspector, and that the petitioner received a majority of one vote for said office of inspector. It also states, that three certificates of election were signed by the judges of said election, but that the name of the person elected was not inserted in said certificates at the time the same were so signed, and that notwithstanding the petitioner was elected inspector the name of Johnson, the defeated candidate, was afterwards inserted in said certificates by Edmund C. Knight as the person elected inspector instead of the name of the petitioner. It is further stated that the said name of Jesse U. Johnson was inserted in said certificates as aforesaid, by the said Edmund C. Knight, at the instance and upon the fraudulent pretence by him of the assumed authority of the presiding officers of the judges of the election districts comprised within the said several assessment districts of the hundred of Wilmington aforesaid, at their meeting on the evening of the said election, after the said certificates had been signed as aforesaid at the “ City Hall,” in said hundred, for the purpose of ascertaining the number of votes given for assessor in the different election districts, and that the name of Jesse U. Johnson was so inserted as aforesaid in the said blank in each of said certificates without the knowledge or consent of the said Lindsley L. Pierce, one of the said judges as aforesaid, and contrary to the understanding and purpose of all said judges of said fourteenth election district when they signed said certificates as aforesaid. The petition also states that the said Linsley L. Pierce, one of the judges of the said election as aforesaid, is willing to unite with the said Edmund C. Knight and George W. Kennedy, Sr., as judges of said election, in making and signing certificates that the petitioner was, at said election, elected inspector as aforesaid, and in transmitting the same, as required by law, to wit: One to the petitioner, one to the clerk of the peace of New Castle County, and one to the sheriff of said County; and that, since the election the petitioner has made demand of the said Edmund C. Knight, as the presiding officer of said election, and of George W. Kennedy, Sr., as one of the judges of the said' election, and of Linsley L. Pierce, the other of the said judges, that they make and sign three certificates of the election of the said petitioner at said election as said inspector of said fourteenth election district, and that they transmit one of them to the petitioner, another to the clerk of the peace, and another to the sheriff of said county, and that Edmund C. Knight and George W. Kennedy, Sr., refused to comply with said demand, but that Linsley L. Pearce upon said demand expressed his willingness, and was and now is willing to unite with the said Edmund C. Knight and George W. Kennedy, Sr., in making and signing certificates, and in transmitting the same, as demanded by the petitioner, whenever the said Knight would and will do the the same. The prayer of the petitioner was as follows: Your petitioner being without other adequate legal remedy in the premises, therefore prays your honors, that a rule may issue out of this honorable court, directed to and requiring the said Edmund C. Knight and George W. Kennedy, Sr., respectively, the per-siding officer, and one of the judges of said election for inspector of the fourteenth election district of the hundred of Wilmington, in New Castle County, to show cause why a writ of peremptory mandamus shall not issue against them as such presiding officer and judge of election as aforesaid, commanding them to make and sign and unite with the said Linsley L. Pierce, the other of said judges of said election, in making and signing three certificates that at said election your petitioner was duly elected inspector for the said fourteenth election district of Wilmington hundred aforesaid, and in transmitting one of said certificates to your petitioner, one of said certificates to the clerk of the peace of New Castle County, and the other of said certificates to the sheriff of said county.

To support the petitioner’s application for the rule to show cause, he at the same time filed the affidavits of four other persons, which are mentioned in the rule to show cause, viz.: Linsley L. Pierce, Francis E. Gallagher, Charles Grier and George B. Lewis. The court thereupon granted a rule upon the defendants to show cause why a writ of peremptory mandamus should not issue against them “ to make and sign and unite with the said Linsley L. Pierce, the other of said judges of said election in making and signing three certificates, that at the said election the said petitioner, Ziba Ferris, was elected inspector of the said fourteenth district of the city of Wilmington, hundred aforesaid, and in transmitting one of said certificates to the said petitioner, Ziba Ferris, one of said certificates to the clerk of the peace of New Castle County, and the other of said certificates to the Sheriff of New Castle County.” The defendants respectively filed affidavits, designed by them as answers, in which? however, they did not, nor did either of them deny any material fact stated in the petition of the relator, but stated in substance that three certificates were made and signed by all the judges of the election, after the election was closed, and that one of these certificates was delivered to Johnson, he having a majority of the legal votes; and thereupon the rule to show cause was made absolute, and a peremptory writ of mandamus was awarded as prayed. Upon the judgment awarding this mandamus, the plaintiffs sued out a writ of error to this court, and it becomes our duty to decide whether there is error in the record and proceedings of the court below. The office of the writ of mandamus is to compel a corporation, an inferior court or public officer to perform some particular duty incumbent upon them which is imperative in its nature and to the performance of which the relator has a clear legal right. The remedy is extraordinary, and if the right is doubtful, or the duty discretionary or if there be any ordinary and adequate specific legal remedy this writ will not in general be allowed. In England, it is considered to be a prerogative writ, and was so-called because the power to issue it was vested in the Judges of the King’s bench, the court in which the sovereign is supposed to be personally present. It is a remedial writ, the appropriate functions of which are the enforcement of the duties by officers and others, who either neglect or refuse to perform their duty, and for the enforcement of which duties there is no other specific legal remedy. “ Whenever,” says Mr. J. Strong, in the case of the Commonwealth v. Pittsburgh, 34 Pa. St., 496, “ there is a clear legal right in the relator, a corre spending duty in the defendants, and the want of any other adequate and specific remedy,” a writ of mandamus is the appropriate process. “ In this country,” says Mr. Dillon, in his work on Municipal Corporations, § 825, “ The functions of the writ are fully as extensive as in England, although we have here given more scope to other remedies which often effect practically the same ends.” The legislatures and the courts in modern times have improved and liberalized the proceedings by mandamus by relieving them of much of their former artificial and technical characters. Accordingly, he says upon high legal authority, “ it is well settled that a mandamus in modern practice is nothing more than an action at law, between the parties, and it is not now considered as a prerogative writ. The right to the writ and the power to issue it have ceased to depend on any prerogative power, and it is now regarded as an ordinary process in cases to which it is applicable. It is a writ to which every one is entitled, where it is the appropriate process for asserting the right he claims.” And such also is the modern doctrine asserted in well adjudged cases in the courts both Federal and State, in this country. Mandamus is not considered in England the proper remedy to try the right to a public or municipal office, and a mandamus to admit gives no title to the person admitted, but it enables him to try or enforce his right, and if there is another remedy open to the applicant as for instance an information in the nature of quo warranto, which lies where the adverse claimant or officer is in possession,” a mandamus will not be granted against municipal corporations, but it will be granted, says Mr. Wilcox, “ where quo warranto does not lie, although the office be already full, as otherwise in many cases the applicant would be without remedy.”

In this country the same general principles are recognized, although there is some difference of opinion as to the scope of their remedy by mandamus where there is an officer or adverse claimant in possession.

It has been decided in New York that where «a person is in office by color of right the remedy is not by mandamus to admit another having lawful claim, but by information in the nature of a quo warranto. Ang. and Ames on Corporations, § 738; The People v. The Corporation of New York, 3d Johns (N. Y.), cas. 79; The People v. Hillsdale and Chatham Turnp. Co., 2d John (N. Y.), R. 190. It has been decided in New Jersey, says Dillon, “ that a mandamus lies to compel the city council to admit a councilman, duly elected to that office. But on the grounds that mandamus was not a proper proceeding to try the right to a public office the court declined to make an order to show cause in a case where the relator claimed to have been elected by the common council to the office of assessor, and also claimed that the council wrongfully deprived him of his office by refusing to count the votes of one of their members in his favor. Dillon, 843; People v. Detroit, 18 Mich., 338. In a case in 9 Maryland R., in which the claimant sought not only the removal of the incumbent but the possession of the office for himself, the objection was made that quo warranto and not mandamus was the proper remedy to try the title to the office; but the court of appeals held that the objection was not well taken and that the plaintiff need not resort to quo warranto as preliminary to mandamus, as this might prove inadequate, by reason of the delay it would occasion. The court was of opinion that mandamus to compel the defendant to surrender to the petitioner the office was the only complete remedy, since under the quo warranto information the judgment might amove the occupant but would not instal the claimant. And the court further held that mandamus might issue, although the office was filled by the defendant, who claimed title. It admitted the conflict of decision on this point, but regarded mandamus as particularly applicable to the cause before the court. Mr. Dillon concludes his discussion of this question, § 846, in these words: There is much to recommend the views of the Maryland court in the case just referred to, since the delays of resorting to quo warranto are such, in consequence of the short terms of our elective officers, as generally to amount to a denial of justice. Before the quo warranto proceedings can be determined, the term of the claimant frequently expires, and a judgment in his favor is a barren victory. It is agreed that where for any reason quo warranto will not lie, and there is no adequate remedy provided, the right to a disputed office may be settled on mandamus. Looking at the question in view of our short official terms, we should say that where the effect of compelling a resort to quo warranto would be unreasonably to delay the decision of the disputed right (which concerns not only the individuals, but the public), the court would be justified in interfering by mandamus, so far at least, to see that the incumbent is actually a bona fide possessor of the place, and that there is real dispute and fair doubt as to which party has the legal title.

Amid this conflict of authority it might be presumptuous to express an absolute opinion of my own. I shall, therefore, in considering this case confine myself to two questions: First, had the Superior Court of this State, sitting in Sussex County, jurisdiction to award a writ of peremptory mandamus in this case ? And second, if the court had such jurisdiction, was the writ, in fact, awarded in substance proper and sufficient in law. There is no doubt that the Superior Court of the State of Delaware, being the highest common law court of the State, has jurisdiction in all proper cases to award the writ of mandamus. By the Constitution of the State, the Superior Court has jurisdiction of all causes of a civil nature, real, personal and mixed at common law, and all other the jurisdiction and powers vested by the laws of this State in the old Supreme Court and Court of Common Pleas, and by § 1 of chap. 92, of the Code, it is declared that the judges of the Superior Court, or any two of them, shall hold pleas of assize, scire facias, replevins, informations and actions on penal statutes, and hear and determine all and all manner of pleas, actions, suits and causes, civil, real, personal and mixed, according to the Constitution and laws of this State, as fully and amply to all intents and purposes as the Justices of the King’s Bench, Common Pleas and Exchequer of England, or any of them may or can do. Jurisdiction is of two kinds, one relating to territory and the other to the subject-matter of judicial cognizance. There is no difference as respects territorial authority between the courts of this State, for by the eleventh section of article 6, of the Constitution, it is declared that the jurisdiction of each of the aforesaid courts shall be co-extensive with the. State. Process may be issued out of each court in either county into every county. In respect to the subject-matter for the exercise of jurisdiction it will be sufficiently definite to say that the Superior Court exercises jurisdiction in respect to all matters purely legal, whether of common or statute law, the exercise of which is not vested in other tribunals, and being the highest common law court in the State it has the only authority in this State to award the common law writ of mandamus, an authority designed to be supervisory over all inferior legal tribunals, corporations, and persons bound to the proper discharge of authority with which they have been clothed by law for the public benefit. While the judicial power of this State is vested in the courts named in the Constitution, said courts have not, and neither of them has, as the Court of King’s Bench has, any fixed place at which its sessions are held except the Court of Errors and Appeals, which is held at Dover. The Superior Court, Court of Chancery, Orphans’ Court, Court of Oyer and Terminer, and Court of Sessions of the Peace in New Castle County, are held at Wilmington, in Kent County, at Dover, and in Sussex County, at Georgetown. The Superior Court may therefore be said to be, in fact, for most purposes, a county court. The reason why the Statute, chap. 91, of the Code, provides for the sessions of the courts in each of the counties was doubtless two-fold; first, public convenience, and secondly, because many subjects of adjudication, or rather things in respect to which adjudication in the courts might be necessary, were necessarily local in their character, and all contention in the courts in respect to such matters must necessarily be local and be determined in the county in which the controversy for determination arose. Now I know of no better distinction between a local and transitory action than this: “ When the cause of action could only have arisen in a particular place or county it is local, otherwise it is transitory.” In considering, therefore, whether the Superior Court had jurisdiction to award a peremptory mandamus, as it did in the cause before them in Sussex, it is important to ascertain whether the cause in controversy could have arisen in Sussex. The election for inspector was local; it was confined to the fourteenth election dis trict, being the ninth ward, in the city of Wilmington, in Hew Castle County. That particular election could not have been held anywhere else. Its officers could not have performed any duties in respect to it anywhere else. Must not, therefore, any judicial determination in respect to the duty of such officers and the exercises thereof by them necessarily be incepted and consummated in Hew Castle County ? In the case of Wayne Township v. Green Township, in the Supreme Court of Ohio, reported in Wright’s Reports, page 292, it is stated that a rule was granted at the last term of the court, that Green Township, in Clinton County, show cause, etc., why a mandamus should not issue to compel them to levy a tax, etc. In that case the court said: “The application is in Warren County for a mandamus against a township in Clinton County. Why is the application made here ? Generally, and for the most purposes, the Supreme Court in this State is a county court. We do not say that it is altogether so; that in no case will it exercise a general jurisdiction through the State, or that in a proper case it may not grant a rule or take the incipient steps to a mandamus in another county than that in which it is to operate, but such rule is in general to show cause in the county where the writ is to operate, and where alone it must issue, let it be awarded where it may. The rule in the case before us has been improvidently entered and must be discharged.” How the jurisdiction of the Supreme Court of Ohio seems at that time (1831-2-3-4) to have been very similar to that of our Superior Court. In the preface of Wright’s Reports, it is stated that the Supreme Court of Ohio was composed of four judges, the largest number the Constitution permitted. The Constitution required it to be holden in each of the counties of the State, and made any two of the judges a quorum. And such was the decision of that court in respect to the question I am now considering. Again in 2 Pickering, 397, it was decided that upon the application of a person claiming to be clerk of the town of Hampden for a mandamus to the former clerk a rule to show cause why it should not issue may be granted to be heard in another county, but the writ of mandamus must be returnable in Hampden. Why the rule to show cause might be granted to be heard in another county does not appear. It seems that the court itself making this decision embraced three counties within its jurisdiction, and it may be that there was something in the Massachusetts’ statutes that gave the court, for the purpose of expediting.business, the authority to consider matters preliminary in their nature in a cause, in any county of the district, although proceedings final in their character were necessary to be had in a different county, or the county where the matter in controversy arose. Of this, however, I have no certain knowledge. What is the meaning of the eleventh section of the sixth article of the Constitution of this State, which declares that the jurisdiction of all the courts mentioned in the Constitution, not of the Superior Court alone, shall be co-extensive with the State, and that process may be issued out of each court in either county into every county ? The provision evidently meant, as afterwards declared by statute, that the courts should hold sessions or terms in each of the counties, and that when such terms were being held, or it was necessary to issue process for any purpose in connection with the proper business of the courts in each county, the court in which the issuing of any process might be proper should have authority to issue such process into any other county and to compel obedience to that process. It never was designed to abolish the distinction between local and transitory actions, or to change the common law in respect to the place where and manner in which causes or controversies of any character within the jurisdiction of any of the several courts should be heard and determined.

This is the interpretation that the uniform practice of the courts has placed upon the section of the sixth article of the Constitution. No one ever supposed that a purely local action or one arising in a particular county of the State, and which could not have arisen elsewhere, could be heard and determined by the court in another county although the process of the court necessary and proper to be issued in the cause might, in the language of the Constitution, be issued out of the court in the county in which the suit or controversy was pending in either county into every county.

For the same reason and upon the same principle no rule to show cause in respect to a matter in its nature local, and no judgment absolute upon the determination of such rule can be heard or entered in any county other than that where the controversy necessarily arises. The language sometimes used in respect to a writ of mandamus may perhaps, with some persons cause an erroneous idea to be formed in respect to it. In England it is uniformly called a prerogative writ because it was issued in the name of the king, and because the king was supposed to have a general supervision over all his courts and inferior tribunals, and because the writ was not issued to any intervening ministerial agency, but its command was given to the tribunal or to the persons bound to obey. And inasmuch as the king exercises this prerogative through his Court of the King’s Bench, the power to issue the writ of mandamus was said to be the flower of that court’s jurisdiction, and our American text-books and decisions abound in similar expressions.

Now these are very pretty expressions, without any very great substantive meaning at the present day in this State.

Many writs in England were prerogative writs, and in the same sense as that of the writ of mandamus, and every writ in the State of Delaware, issuing out of the Superior Court in the name of the State, and addressed directly to the parties bound to obey its mandate, is as much a prerogative writ as is the writ of mandamus. The writ of quo warranto is in the same sense a prerogative writ, and the same rule and principles in respect to the place where a writ of quo warranto shall issue and be determined applies equally to the writ of mandamus. If this be not so, I at least am not advised of any case in which the contrary has ever been decided.

Now, suppose a writ of quo warranto was proper to be issued against any of the public officers in New Castle County, as for instance, the clerk of the peace, or suppose it was necessary to issue such writ in a proper case against a corporation in New Castle County, could it be imagined for one moment that the writ should be issued anywhere else than in New Castle County ? Why not ? for the very simple reason that the cause of action could notarise

anywhere else than in that county. Ang. & A. on Corp. (see also the case of The People v. Cycott, 15 Mich. Reports, 326). It is true that in some States it has been held that an information in the nature of a writ of quo warranto may be filed in any county, the process issuing thereon being made returnable in the proper county. It was so held in the case of the Commonwealth v. Smead, 11 Mass., 74, in which case the court said that the practice is too well settled to be now shaken, and no inconveni-ence can arise to the respondents in these cases, since they will be holden to answer only in their own county. This was approved in the case of the People v. Richards, 4 Cowen, 120. So also in the case cited from 15 Mich., where it was held that a proceeding by quo warranto in the Supreme Court to try the right to a county office is local in character, and must be sent for trial to the county where the duties are to be exercised. We, however, have no such practice as that mentioned in Massachusetts of initiating proceedings in any other county than that in which the case is finally to be determined, and I think it would be unwise to adopt such a practice.

I now refer to the second division, under which I propose to consider the matter before the court, viz.: If the court had such jurisdiction, was the writ, in fact, awarded, in substance proper, and sufficient in law ? The prayer for the rule to show cause was, that a rule might issue directed to and requiring Edmund C. Knight and George W. Kennedy, Sr., respectively the presiding officer and one of the judges of said election for inspector of the fourteenth election district of the hundred of Wilmington, in Hew Castle County, to show cause why a writ of peremptory mandamus shall not issue against them as such presiding officer said judge of election, as aforesaid, commanding them to make and sign and unite with the said Linsley L. Pearce, the other of said judges of said election, in making and signing three certificates that, at said election the petitioner was duly elected inspector for the said fourteenth election district of Wilmington hundred aforesaid, and in transmitting one of said certificates to said petitioner, one of said certificates to the clerk of the peace of Hew Castle County, and the other of said certificates to the sheriff of said county.

Now, under the statute, it was the duty of all three of the judges to make the certificates of election, and to transmit them to the person elected, the clerk, and the sheriff, and the application for the rule, as I apprehend, should have been made against all of them, and I know of no authority to the contrary.

The application (Tapping on Mandamus, page 290) for the rule should be made against all those, if more than one, whose duty it will be to execute the writ if it should ultimately issue. Thus, if several persons form but one artificial person they must all be made the subject of the same rule. The author refers to 3 B. & C., 149, 152; Bull. N. P. R. v. Clenkeweell (Parish) Bull. N. P., 200.

Even in a case where a demand is necessary to be made before applying to a court for a mandamus, it is necessary that such demand should be made upon all the persons whose duty it is to do the act. In Tapping, before cited, 284, the author says: “ But when two persons only are specially designated by the legislature to do a certain act, it is not sufficient to found an application for a mandamus to show that an application has been made to one of them only.” And he cites R. v. London, 13 East, 425.

Again, the writ must be directed to all those who are legally bound to execute it. Tapping, 314. A breach of this rule renders the writ liable to be either superseded or quashed. Tapping, 314.

Again, the peremptory writ is, in general, issued against those who should have executed the first writ. Tapping, 414.

When two persons have been appointed commissioners by law, whose duty it is to perform some act required by law, and one of them refuses to join with the other in the performance of such act, the one willing to do his duty under the law may ask for a writ of mandamus to compel the performance of the act, but the writ, if awarded, must go against himself as well as his co-commissioner. This has been repeatedly decided, and is plainly laid down in the text-books upon this subject.

It would be useless to refer to all the cases to be found in the books on this subject—in fact, it would be impossible to do so. I know of no well-adjudged case contrary to the principle laid down in the text-books. I refer to one case, however, where the doctrine of mandamus in this respect seems to have been well considered by a court of high authority in this country. The case is The State v. Robert Jones and others, 1 Iredell’s Reports, 129. In this court it was held that the writ of mandamus should be directed to all the persons whose duty it is to perform the acts required, though some of them may be applicants for the writ. In this case there were seven commissioners whose duty it was to do a specific act. Three of the commissioners filed a petition for a mandamus to compel the other four, in concurrence with them, to perform the specific duty, and an alternative mandamus was issued directed to the four only, which was returned with an admission of service by the three petitioners and an expression of readiness to perform their duty, whereupon a peremptory mandamus was ordered. It was held that the order for the peremptory mandamus was against all, and that the proceedings were sufficient. Gaston, Judge, in delivering the opinion of the court, says: “ The objection that the writ should have been directed to all the commissioners, whose duty it was to perform the act required, has been strongly pressed upon us; and, to show that such is the regular course of proceeding, a case has been quoted from 2 Chitty’s Reports, 254, where, on an application for a mandamus against one of the churchwardens of a parish, to concur in a rate with the overseers, it was said by the court: “ You must take the mandamus against the whole of the parish officers, against yourself as well as against the other overseers; it has often been so done.” We admit fully the correctness of the doctrine contended for by the defendants, and yet hold that their objection is not sustained. The writ might, indeed, have been more formally directed to each and every of the seven commissioners, but upon this record it must be held that it was so directed. The mandamus prayed for in the petition is a mandamus directed to all. The petitioners, three of the commissioners, admit service of the mandamus, and declare that they are ready to act. A writ is then addressed to the other four only, because their colleagues have accepted service, and the act which the four are ordered to do, or shew cause to the contrary thereof, is an act in company with their colleagues, and which their colleagues are, by virtue of their express assent of record, bound to join, under the penalty of a contempt. The three petitioning commissioners who acknowledge service of the alternative mandamus declare that they have no cause to show wherefore the act ordered should not be done, and if the others, to whom an opportunity is thus offered of shewing cause, offer none, then all having been directed to do the act, or signify wherefore they do not, the peremptory mandamus properly issues against all,' as prayed for.” It will be observed that the court, in this opinion, approved the doctrine in 2 Chitty—that the mandamus must go against all the officers whose duty it was to concur in performing the act, and that it must issue against those of them asking for the writ as well as those refusing to concur with them. The court say they admit fully the correctness of the doctrine contended for by the defendants, although in the particular case before them they held that the objection was not sustained, because the mandamus prayed for in the petition was a mandamus directed to all. The petition in the case before us did not pray for a mandamus directed against all three of the judges of the election, but only directed against two. In the case in Iredell the petitioners, three of the commissioners, admitted service of the mandamus and declared their readiness to act, and the reason why the alternative writ was directed against four only was because their colleagues had accepted service, and the act which the four were ordered to do, or show cause to the contrary thereof, was an act in company with their colleagues, and in which their colleagues were, by virtue of their express assent of record, bound to join, under the penalty of contempt. Now, although the affidavit of Mr. Pierce, one of the judges, was filed before the issuing of a rule to show cause, he nowhere has admitted service of the rule, nor declared his readiness to act, nor was there any express assent on his part of record to the issuing of the rule or the peremptory mandamus, and consequently he was not bound to join, under the penalty of a contempt, in making three certificates and delivering them as required by the act. He might, notwithstanding the issuing of the peremptory mandamus against the other two judges, have refused to join in making and delivering the certificates, and had he so refused he could not have been compelled to join therein, and could not have been punished for a contempt for his refusal. It won’t do to say, that the petitioner states in his petition that Pierce was willing to do his duty. The court cannot assume, without his express admission of record, that he would so act, and upon such assumption award the peremptory writ against the other two judges. Courts do not, and should not, so act. Their commands should be such that obedience to them can be enforced, and not be dependent upon the voluntary action of any one. Had Pierce refused to act, he could not have been compelled to act, nor be punished for a contempt in refusing to act, and if the other two judges had made return to the writ that they were willing to act, but that Pierce would not join in acting with them, they could not have been punished for a contempt, and thus the command of the court would have been nugatory, and no advantage could have resulted from the issuing of the writ.

Again, in the case of Iredell, the court says: “The petitioning commissioners, who acknowledge service of the alternative mandamus, declare that they have no cause to show wherefore the act ordered should not be done. And if the others to whom an opportunity is thus afforded of showing cause offer none, then all having been directed to do the act, or signify wherefore they do not, the peremptory mandamus properly issues against all as prayed for.” That is to say—after the admission by the three petitioning commissioners had acknowledged service of the rule, and admitted service of the alternative mandamus, and the other four commissioners had made no return to the alternative mandamus, the peremptory mandamus issued, was issued against all the seven. This case is wholly unlike the one before us, and instead of justifying the issuing of the peremptory writ against two only of the judges of the election, shows conclusively that the peremptory mandamus was improper, and that it could only have been legally issued against all three of the judges, who were, by law, bound to make and deliver the certificates. To show that mandamus does lie to compel one officer to unite with the other officers in performing a duty enjoined upon both by law, we were referred the case of the People v. Prennan, 39 Barb., 651. This I do not deny, but expressly admit it to be true. But how can such officer be compelled thus to unite with other officers ? By awarding a writ of peremptory mandamus against all, to compel all to perform the duty, and not by awarding the writ agaizist one to compel him to unite with the others, who have not, by their submission of record, consented to perform the duty. The defendant in error, however, alleged that the objections that Pierce, one of the judges, was not made a party to the proceedings below, cannot now be made, and that technical objectiozzs or that preliminary objections rather not affecting the merits must affirmatively appear to have been taken below, or they will not be considered on appeal, and that merely technical objections cannot prevail if taken after the return to the. mandamus, and that they should have been urged in limizie on a motion to quash, and that they now come too late. The doctrine upon this subject is thus stated by Tapping, 339 : “ Formerly, if the writ of mandamus were any way objectionable, an application to quash must have been made before return filed, for after that step taken the objection was considered as waived ; but this doctrine, at all events, as to matters of substance, is now over-ruled, the court having, in numerous cases, permitted such an objection to prevail when a return has been argued; and in one case, after a return had been held to be had, exceptions were allowed to be taken to the writ in a subsequent term. The rale of law which now obtains upon this point is, that where a return is set down for argument on a concilium or demurrez-, the defendant may take objections to the writ in matters in substance, for on a con-cilium the whole record is set down for argument, and the defendant has a right to object to the writ of mandamus in mattez's of substance, as much as a defendant has a right to object to a declaration where the whole record is set out upon demurrer or writ of error after a plea in civil proceedings. Also, in the case of an indictment, to which there has been special pleas, the defendant has a right to object to the indictment for quod initio vitiosum est, non potest tractu temporis convalescere.”

Again in the case of The King v. The Margate Pier Company, 3 B. & A., 220, where a writ of mandamus to a corporation, commanding them to pay a poor rate, omitted to state that the defendants had no effects upon which a distress could be levied, it was held that this was a fatal objection to the writ and might be taken after the return or at any time before the issuing of the peremptory mandamus. Abbott, Ch. J., in delivering the opinion of the court, said: “I am of opinion that it is not too late now to take an objection to the writ. Suppose an action brought for a false return, if the writ be defective, the party bringing the action can never be entitled to judgment. And, besides, in a case like this, where there is no writ of error, the court will surely, at any time before a peremptory mandamus issues, suffer itself to be informed, and examine whether the writ is so framed as to give them jurisdiction. It is undoubtedly more convenient that such an objection should be taken at first, and that will probably account for the observations of Lord Kenyon and Mr. J. Buller in the case cited. But the other authorities, showing that such an objection may at any time be taken, do not seem to have occurred to these learned judges, when those observations were made. Then, as to the objection itself, it appears to me that the ground of such an application as the present is, that there is no other remedy, and therefore, it is clear that the writ ought to state the fact distinctly; if not, it would deprive the defendants of the power of traversing that most material fact, for they are only to anwer what is alleged in the writ. I think, therefore, that this is an objection in substance and not in form and that we ought to quash the writ.”

This court has decided in the case of Saunders and the African Church, that a writ of error will lie to the judgment of the Superior Court awarding a peremptory mandamus. And it is to such a judgment that the writ of error in this case has been taken. The object of the writ of error is to have a decision by this court whether the court below could award the writ of peremptory mandamus they did award in the case before them. The objections which I have been considering to the jurisdiction of the court in the present case and its power to award the peremptory mandamus against two only of the judges holding the election in the fourteenth election district, in the city of Wilmington, are not technical or necessarily preliminary, but are of substance material and fundamental, and appear on the face of the record and proceedings transmitted to us. When the want of jurisdiction in the Superior Court in any action pending before it does not appear upon the face of the plaintiff’s declaration, such want of jurisdiction can only be taken advantage of by a plea in abatement, and if such plea be not pleaded, but the defendant pleads in bar to the action and judgment is recovered against him, such judgment will not be reversed on writ of error, but if the plaintiff himself shows, by his declaration that the court had no jurisdiction to hear and determine the cause, objection to the jurisdiction maybe made by demurrer, by motion for non-suit, by motion in arrest of judgment, and will be causes of error, for which the judgment below will be reversed. In the present case, if I am correct in the views already presented, the defendant in error, having made application for a writ of peremptory mandamus in the Superior Court in and for Sussex County, in respect to a matter and cause which could only arise and exist in New Castle County, presented a state of facts which show to the court below, and show to this court, that the court below had no jurisdiction in the premises. No plea in abatement was necessary, because every fact which could be disclosed by any such plea, if made by the defendant below, appeared in the petition of the petitioner himself. And therefore, upon the principle before stated, governing the determination of all civil causes in the court below, the petitioner showing that he had no status in that court by reason of its wg,nt of jurisdiction to hear and determine the questions presented to it, and that want of jurisdiction appearing to us by the record transmitted to us, we are not at liberty for this reason, as well as the other reason I have stated, to enter any other judgment but that of reversal of the one below.

There were many causes of error assigned to the record and proceedings below. I have considered two only, "and express no opinion in respect to the others. It will be time enough to consider such questions when they shall arise in a cause depending upon their determination. It would have been more agreeable to me to have arrived at a different conclusion from that to which I have been compelled to come by my thorough conviction that the views I have presented are correct and should govern the determination of this cause. Though not bound to express any opinion as to the facts upon which the petitioner based his claim, yet I feel justified in saying that, if the facts stated in the petition for the writ are true, Mr. Ferris, and not Mr. Johnson, was chosen inspector at the election mentioned in the petition, and that the certificate of election should have been delivered to him and not to Johnson. The defendants below had the privilege of denying the statements contained in the petition, if they were not true, in their answer to the rule. They did not deny that those statements were true. They did not deny that Ferris was chosen inspector. They did not deny that he had one majority of the votes cast at the election.' They did not deny that the certificates of election were made out in blank as to the name of the person voted for as inspector. Their answer was evasive, being simply that three certificates were made and signed by all the judges of the election, and delivered, one to Johnson, one to the clerk of the Peace, and one to the sheriff of New Castle County, he, Johnson, having a majority of the legal votes. Upon such an answer in a proper case, in which the court has jurisdiction, the court would be fully justified in awarding a writ of peremptory mandamus. After the votes were received by them as judges of the election and deposited in the box, their judicial functions ceased, and nothing remained for them to do but to count the votes, ascertain in whose favor the majority of the votes were cast, and make and deliver the certificates of .election as required by law. After the votes were so received and deposited, they had no right to refuse to count all the votes cast. They had no authority after that to pass upon the legality or illegality of any vote cast. After that they possessed no judicial authority whatever. The board to determine who were elected assessors for the city of Wilmington had no authority whatever to determine any matter in respect to the question who was, or was not, chosen inspector in the fourteenth election district in the city of Wilmington. The judges themselves had no authority to choose an inspector for that district. The person having a majority of the votes voted was chosen inspector by the law, and not by the judges of the election or by any other person or persons whomsoever.

While my duty as a judge of this court compels me to decide that the judgment of the court below must be reversed, I do not intend that my opinion shall be used in support of, or to give countenance to, conduct which, as far as facts have been disclosed, meets my unqualified disapproval and condemnation.