CHAPTER 33.
OF CONTESTED ELECTIONS.
AN ACT in relation to Contested Elections other than for Members of the General Assembly and Governor.
Be it enacted by the Senate and House of Representatives of the State of Delaware in General Assembly met:
SECTION I. Any person claiming to be elected to an office to be exercised in and for any county or hundred may contest the right of any person declared to be duly elected to such office for any of the following causes, to wit: 1st. For mal-conduct on the part of the officers or judges holding the election, or any one of them; 2d. When the person whose right to the office is contested was not at the time of the election eligible to such office; 3d. When the person whose right is contested, has given to any elector or inspector, judge or clerk of the election, any bribe or reward, or shall have offered any bribe or reward for the purpose of procuring his election; 4th. On account of illegal votes.
SECTION 2. No inequality or improper conduct in the proceedings of the officers or judges aforesaid, or any one of them, shall be construed to amount to such mal-conduct as to annul or set aside any election, unless the inequality or improper conduct shall have been such as to procure the person whose right to the office may be contested to be declared duly elected when he has not received the highest number of legal votes cast at said election.
SECTION 3. When any election held for an office, exercised in and for a county, is contested for any mal-conduct on the part of the officers or judges of election, or any one of them, in any hundred or election district, the election shall not be annulled or set aside upon any proof thereof unless the rejection of the vote of such hundred or hundreds, election district or election districts, shall change the result as to such office in the remaining vote of the county.
SECTION 4. Nothing in the fourth ground or cause of contest specified in the first section of this act shall be so construed as to authorize an election to be set aside or annulled on account of illegal votes, unless it shall appear that an amount of illegal votes has been given to the person whose right to the office is contested which, if taken from him, would reduce the number of his legal votes below the number of votes given to some other person for the same office, after deducting therefrom the illegal votes which may be shown to have been given to such other person.
SECTION 5. In cases arising under the second and third causes of contest, specified in section one of this act, a proceeding may be instituted under this act against such person by the person who received the next highest number of votes for the office at the election under which such ineligible person was declared elected, notwithstanding the person so contesting the election does not claim to have been elected.
SECTION 6. When any person authorized to do so under this act shall desire to contest the right of any person declared duly elected to such office, he shall, within twenty days after the result of the election shall have been officially ascertained by the board of canvass, or officers legally authorized to ascertain the same, file with the Prothonotary of the Superior Court of this State, in and for the county in which said contest is made, a written statement, setting forth specifically:
1st. The name of the person contesting such election; 2d. The name of the person whose right to the office is contested; 3d. The office; 4th. The particular cause or causes of such contest; which statement shall be verified by the affidavit of the contesting party, that the matters and things therein contained are true, as he verily believes, and that the said contest is made in good faith.
SECTION 7. When the reception of illegal votes is alleged as a cause of contest, it shall be sufficient to state generally that illegal votes were given to the person whose election is contested in the specified hundred or hundreds, election district or election districts, which, if taken from him, will reduce the number of his legal votes below the number of legal votes given to some other person for the same office, but no testimony shall be received of any illegal votes unless the party contesting such election shall deliver to the opposite party, at least four days before the trial, a written list or statement: 1st. Of the number of illegal votes and the general character of their illegality; 2d. The hundred or hundreds, election district or districts in which said votes were cast; 3d. That he intends to prove or endeavor to prove, the contents of said statement in the trial. And no testimony shall be received of any greater number of illegal votes than is specified in such list. The name or names of the alleged illegal voters need not be given in said list or statement.
SECTION 8. No statement of the cause or causes of contest shall be rejected, nor the proceedings thereon dismissed for want of form, if the particular cause or causes of contest shall be alleged with such certainty as will sufficiently advise the defendant of the particular proceeding or cause for which the election is contested.
SECTION 9. Before such statement being filed as aforesaid, it shall be the duty of the said Prothonotary to docket the said case in the Appearance Docket, as an issue to be tried at the next succeeding term of the Superior Court of said county, and immediately issue a citation for the person whose right to the office is contested, to appear on the first day of the next succeeding term of said court to make such defense as he may have in said case; which citation shall be delivered to the Sheriff, or if he be a party to the contest, to any constable of the county, and be served by him upon the party defendant in person, or, if he cannot be found, by leaving a copy thereof at the house where he last resided, at least five days before the day to which such citation is returnable. The original citation shall be returned to said Prothonotary on or before the first day of the next term of said court after it is issued, and the manner of service shall be endorsed thereon and signed by the officer serving the same.
SECTION 10. The court may dismiss the proceedings if the statement of the cause or causes of contest do not conform to this act, or for want of prosecution. If said proceedings are not so dismissed, the case shall proceed upon its merits and be tried and determined by the court, by the rules of law and evidence governing the determination of questions of law and facts in the courts of law in this State, so far as the same are applicable. And the said cause shall be tried at the first term of said court next after the filing of the statement of the cause or causes of contest, unless the court, for some good cause shown by either party, and supported by affidavit, deem it necessary for the ends of justice to continue the same. The costs of the continuance may, in the discretion of the court, be taxed upon the party applying therefor.
SECTION 11. The costs in all cases of contest under this act shall be awarded to the various parties entitled thereto,
in the same manner, and as near as can be, to the same amount as for like services in other cases tried in said court.
SECTION 12. All cases of contest under this act shall be fully heard and determined by the court, without the aid or intervention of a jury, unless one or both of the parties to the contest shall claim a trial by jury, and the court shall, in their judgment, determine that it is a case which, under the constitution and laws of the State, the party or parties are entitled to a trial by jury. In such case a jury shall be empanelled and the cause proceed according to the rules and practice of the court in jury trials.
SECTION 13. In the trial of any contested election under this act, the court shall have full authority to make an examination of the ballots given in such election, so far as the same may be necessary to arrive at a correct judgment, and may make and enforce by attachment all necessary orders to obtain possession of the same, and after hearing the allegations and proofs in the cause shall render judgment (in accordance with the verdict of die jury, if a jury shall have tried said cause), either confirming or annulling such election altogether, or declaring some other person than the one whose election is contested duly elected.
SECTION 14. If it appear by the judgment of the court or the verdict of the jury (if there be a jury), that any other person than the one whose election is contested received the highest number of legal votes, judgment shall be rendered declaring such person duly elected; which judgment, if it be in relation to an officer entitled under the provisions of law of this State to a commission, must be certified by the Prothonotary of said court to the Governor, who must Commission such person, and such judgment shall have the effect of depriving the person whose election is contested of all right or claim to such office, and of investing the person declared by such judgment duly elected with the right to the same, and the court shall order a writ of possession to issue for the same. Said writ shall be directed to the Sheriff, of if he be a party to the contest, to any constable of the county. The officer's fee for executing the said writ shall be the same as is now allowed for serving other writs of possession.
SECTION 15. When the person whose election is contested is proved to be ineligible to the office, judgment shall be rendered declaring the election void and the office vacant; and such proceedings shall then be had as in vacancies happening from any other cause. When it shall appear that two persons have received an equal number of legal votes for the same office, the provisions of law heretofore in force for the settlement of such cases shall prevail, if there be any such provision; if there be none; then the said office shall be adjudged and declared vacant, and such proceedings shall then be had as in vacancies happening from any other cause.
SECTION I6. Judgment for costs shall be rendered in all cases against the unsuccessful party to the contest, and execution may issue against him for the same.
SECTION 17. Any person contesting any election under the provisions of this act, shall be required to give security for costs in such amount and manner as the court shall order. Such security, however, shall in no case be enforced unless judgment for costs be rendered against the contestant.
Passed at Dover, March 14, 1883.