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urged on the motion to discharge the rule, its of this case, we cannot now do much more and dismiss the petition, and the authorities than announce the conclusions which the then cited are relied upon.

court has reached. Our attention is directed to errors and mis [5] First, we deem it important to say that takes in the list filed as set out in the return, in the selection of persons for registration and it is urged that the Department of Elec-officers too great care cannot be exercised. tions in the exercise of its discretion had a Efficient, reasonable and fair-minded men right to disregard the entire list, and to should be appointed-men who will discharge make the appointments independently thereof. their official duties faithfully without bias That the duties imposed under the statute or prejudice. An error in residence or disare judicial and not ministerial.

qualification as a voter in a particular dis[4] It is further urged that the provision trict should not prevent an appointment from of the statute requiring "that the total num- the rest of the list, for such district if comber of registration officers in each representa- posed of proper persons. A spirit of fairness tive district, shall be divided as equally as dictates such a course. One list from each possible between the two leading political of the two leading parties covering the disparties, as the same shall be determined up-tricts of the entire city is all that is required on by the Department of Elections at the by the statute. The practical effect of this time of making the appointments” is uncon- is that it constitutes a distinct list for each stitutional in that it conflicts with article

district. 14 of the state Constitution entitled “Oath

A fatal defect in the list with respect to of Office,” which after prescribing the oath one or more districts does not have the effect for public officers provides that “no other in law or good reason to vitiate and make oath, declaration or test shall be required illegal the remainder of the list. So far as as a qualification for any office of public the list which is required to be filed is in trust." The authorities relied upon are Attorney to one or more districts, it is good and suf

full compliance with the statute with respect General v. Detroit, 58 Mich. 213, 24 N. W. ficient as to such district or districts.

The 887, 55 Am. Rep. 675; State ex rel. Holt v. list filed with the Department of Elections Denny, 118 Ind. 449, 21 N. E. 274, 4 L. R. which has been under consideration does A. 65; People ex rel. Le Roy v. Hurlbut, 24 not appear to have been prepared with careMich. 44, 9 Am. Rep. 103; Rathbone V.

ful attention. But this fact does not warWirth, 150 N. Y. 459, 45 N. E. 15, 34 L. R. A. 408; Baltimore v. State, 15 Ma. 376, 74 Am. rant the action taken thereon with respect 408; Baltimore v. State, 15 Md. 376, 74 Am. to some of the districts in question. The obDec. 572; and Bowden v. Bedell, 68 N. J. Law, ject of the statute is obvious, and the ap451, 53 Atl. 198.

pointing power should never lightly disreWe will dispose of the last proposition

gard its purpose. immediately.

[6] The Department of Elections in makIt is said in 15 Cyc. 313, F:

ing the appointments of registration officers “This subject, however, has not been much attended to in other jurisdictions, but where the must as a preliminary step determine whethquestion has been raised it has been held that er proper persons have been named in the such a provision does not establish such a po- lists filed with them, and whether the quallitical test of office as is repugnant to the Constitution, but is rather a rule for the guidance ifications required by the statute exist; but of the appointing power.”

such determination is administrative and Without going into a general discussion of not of such judicial and final character as the question raised, we think the provision will prevent a review of their action by of the statute objected to as unconstitutional mandamus; for, “if it should be held that is reasonable within legislative intendment in all cases the determination of such preto promote fair elections, and that it is not liminary questions calls for the exercise of within the prohibitory clause of the Consti- judicial discretion, the writ of mandamus, tution or repugnant thereto. In re Wort- as has often been said, might as well be ex

Merrill man (Sup.) 2 N. Y. Supp. 324; State v. McAl- punged from the remedial code." lister, 38 W. Va. 485, 18 S. E. 770, 24 L. R. A. on Mandamus, § 44. The same author says 343; Rogers v. Buffalo, 123 N. Y. 173, 25 the weight of authority seems to be that erN. E. 274, 9 L. R. A. 579; and Com. v. Plais- roneous decisions as to preliminary quested, 148 Mass. 375, 19 N. E. 224, 2 L. R. A. tions of law may be reviewed by this writ; 142, 12 Am. St. Rep. 566. Other cases cited: that erroneous decisions as to preliminary People v. Hoffman, 116 Ill. 587, 5 N. E. 596, questions of fact may be reviewed, unless 8 N. E. 788, 56 Am. Rep. 793; State v. Kin-the general nature of the duties to be perney, 63 Ohio St. 304, 58 N. E. 809; State v. formed are considered to be judicial, or the Finger, 48 Ohio St. 505, 28 N. E. 135; In re law intended that such decision should be Elec. Sup'rs (C. C.) 43 Fed. 859; In re Appt. final. Id. $ 48. This statement of the law Elec. Sup'rs (C. C.) 9 Fed. 14, 20 Blatchf. 13; is fully supported by the decisions. Vincent v. Mott, 163 Cal. 342, 125 Pac. 346; [7] We think the case at bar is distinguishSkain v. Milward, 138 Ky. 200, 127 S. W. ed from the case of Oxy-Hydrogen Co. v. Sim773.

mons et al., in 3 Pennewill, 291, 50 Atl. 213. Proceeding to the consideration of the mer- The duties here are certain, positive, similar

and successive, and present no conditions to ! trict of the Seventh ward, being three of the prevent one procedure for the relief sought. districts in question, and likewise one apThe alternative writ is, therefore, not duplic- pointment in certain other of said districts, itous.

including the Sixth district of the Second [8] The respondents in their return cannot ward, and the Third and Eleventh districts merely rely upon the powers with which they of the Tenth ward, the remaining three disare clothed by the statute and allege that tricts in question. they have performed. The office of the re It is a verred that the executive committee turn is to show a right to refuse obedience to of the Democratic party of the city of Wilthe alternative writ, and it must be good, as mington did not furnish the Department of tested by the ordinary rules of pleading. It Elections on or before the 1st day of June, must deny the allegations of the writ or show A. D. 1914, for each appointment so accreditother facts sufficient to defeat the claim of ed to the Democratic party a list of three the relator.

names of properly qualified persons from [9] The question now is whether upon the which list the Department of Elections was face of the return, the condition of the relator required to make said appointments, etc.; is so changed as to prevent the issuance of that the said list was incomplete, insufficient the peremptory writ. The court may quash and not in accordance with law in the followpart of the return and hold part sufficient. ing respects. Here follow at length the reaState ex rel. Lindsay et al. v, J. & M. P. Co., sons assigned. We do not think it necessary 7 Pennewill, 397, 72 Atl. 1057.

to incorporate these as most of them relate to All allegations in the alternative writ suffi- other districts than those involved in this prociently pleaded and not denied by the return ceeding. The substance of the reasons assignare to be taken as admitted. By the return, ed affecting the districts in question follows: the allegations in the first, third, fourth (ex With respect to the three districts accredcept in so far as the latter charges fraudulent ited with two Democratic appointments, it is and illegal neglect, etc.) and seventh para- averred in the return as to the first mentiongraphs of the petition are admitted.

ed that one of the persons on the list, naming As to the second paragraph it is admitted him, does not reside at the address given; that on the date alleged therein “the said as to the second, that one of the persons on James Saulsbury, then representing himself the list, naming him, does not reside in the to be chairman of the City Executive Commit- district; and that two other persons on the tee of the Democratic party for the city of list, naming them, do not reside at the adWilmington, filed with the Department of dresses given; as to the third, that one of Elections for the city of Wilmington, a list the persons on the list, naming him, does purporting to be a list of registration and not reside at the address given, but at Atelection officers which had theretofore been lantic City, state of New Jersey. With resubmitted by the respective ward-chairman to spect to the remaining three districts accredthe Democratic Committee, which said list is ited with one Democratic appointment, it is in the words and figures following. [Here averred as to the first mentioned that three follows a copy of the list filed.]” But as to of the persons on the list, naming them, do the said second paragraph the respondents not reside at the addresses given; as to "wholly deny

* * that a list of three the second that two of the persons, naming and more names of properly qualified persons them, do not reside at the addresses given, for each election district in the city of Wil- and which are not located in the district, and mington from which said names the Depart. that one of the persons named, is not a ment of Elections for the city of Wilmington qualified voter, and as to the third, that one was compelled by law to select names for of the persons named removed from the adeach appointment accredited to the Demo- dress given before filing list, and another cratic party as registrars, assistant registrars person named does not reside at the address and election officers for the purpose of regis- given. tering voters and holding the election to be [10] The return must not be uncertain, arheld on the third day of November, A. D. gumentative or evasive. 1914."

[11, 12] The averments in the return that A general denial is made of the fifth and certain persons named in the list filed do not sixth paragraphs. We do not think it neces- reside at the addresses given without fursary for the purpose of this case to incor-ther averring that such persons are not resiporate those paragraphs in the opinion. dents of the respective districts for which

It is shown by the return that the list filed they were named is not sufficient answer to by the relator was filed on the 28th day of the alternative writ. The averment that a May, A. D. 1914, and that on the 16th day of person named in the list does not reside in June following, the Department of Elections the district for which he was named is suffifor the city of Wilmington at its meeting ac- cient. The averment that a person named in credited to the Democratic party two appoint- the list' is not a voter in the district for ments for certain of the several 118 election which he was named, when admitted as in districts in the city of Wilinington as therein this case, is sufficient. The statute makes it mentioned, including the Fifth and Tenth dis-mandatory that the names of three persons tricts of the Third ward, and the Tenth dis- shall be furnished as provided for each ap

pointment accredited to any political party. Rev. Code 1852, amended to 1893, p. 961 (11 So that where two appointments are accred-Del. Laws, c. 454) § 1, even though he be not ited to a party for any district, and six financially interested in the game and does not

derive a profit from keeping the table. names as required have been submitted for

[Ed. Note.-For other cases, see Gaming, that district in the list required, and the re- Cent. Dig. $$ 190–198; Dec. Dig. $ 74.*] turn distinctly and sufficiently shows that

3. CRIMINAL LAWS 308*)-EVIDENCE-PREone or more of such persons is disqualified,

SUMPTIONS. the list with respect to such district does An accused is presumed to be innocent unnot comply with the requirements of the til proven guilty beyond a reasonable doubt; statute; and the Department of Elections the burden of proving guilt being on the state. may, as to such district, disregard the re- Law, Cent. Dig. § 731; Dec. Dig. § 308.*]

[Ed. Note.-For other cases, see Criminal maining names on the list, and appoint other suitable persons.


-SUFFICIENCY. The same principle applies when only one appointment is accredited to a party. And acquit if they have, after consideration of the

In a criminal prosecution, the jury should if, in such a case, six names are furnished, evidence in a careful and conscientious way, and three of the names are properly qualified a reasonable doubt as to accused's guilt. persons, the appointment must be made from [Ed. Note.-For other cases, see Criminal the list.

Law, Cent. Dig. § 1267; Dec. Dig. § 561.*] The return is insufficient as to the Sixth Charles B. Morris was indicted for exhibdistrict of the Second ward, the Third dis- iting a gaming table. Verdict, guilty. trict of the Third ward, and the Third and See State v. Panaro, 91 Atl. 998. Eleventh districts of the Tenth ward, and as Argued before CONRAD and WOOLLEY, to these four districts the return is quash- JJ. ed. With respect to the appointments al Arnon D. Chaytor, Jr., Deputy Atty. Gene, leged to have been heretofore made in these for the State. J. Frank Ball, of Wilmington, four districts of persons whose names were for accused. not on the list furnished the Department of

The accused was tried under an indictment Elections, we will say that in contemplation of law the department in attempting to make (No. 38, January term, 1914) under chapter these appointments exceeded the discretion 454, volume 11, Laws of Delaware (Revised permitted by the law. The return is suffi-Code 1852, amended to 1893, page 961), concient as to the Fifth district of the Third taining four counts. The first count charged ward and the Tenth district of the Seventh that Charles B. Morris, the accused, exhibward and as to these two districts, the mo- ited a gaming table on December 17, 1913. tion to quash the return is denied.

The second count charged that Morris was It is ordered that a peremptory writ of concerned in interest in keeping and exhibit

The third mandamus as prayed for issue directed to ing a gaming table on said date. the respondents with respect to the Sixth count charged him with keeping a gaming district of the Second ward, the Third dis- table from November 1 to December 20, 1913; trict of the Third ward, the Third district and the fourth count charged said Morris of the Tenth ward, and the Eleventh district with being concerned in interest in keeping of the Tenth ward.

and exhibiting a gaming table between the latter dates.

The state proved: That the defendant up(5 Boyce, 226)

on the dates mentioned in the indictment STATE v. MORRIS.

was conducting a cigar store at Fourth and (Court of General Sessions of Delaware. New Poplar streets, in the city of Wilmington. Castle. Jan. 14, 1914.)

That said business was conducted upon the 1. GAMING (8 74*)—KEEPING “GAMING TA- first floor, from which there were steps leadBLE"-OFFENSE.

Under Rev. Code 1852, amended to 1893. ing to a basement which was fitted up with p. 961 (11 Del. Laws, c. 454) § 1, providing pool tables and also contained two smaller that if any person shall keep or exhibit a gam- tables about 4 feet and 412 feet in diameter, ing table at which any game of chance is play- respectively, covered with green cloth, with ed, or shall be concerned in interest in the keeping of such table, he shall be guilty of a playing cards upon them, which basement misdemeanor, the word “keeping" is to be given and paraphernalia were in the possession its ordinary significance, and a “gaming table” and control of the accused. At various times to be understood as one used for gaming pur- on and about the said dates, games of poker, poses; the purpose of the act being to prevent the keeping of devices suitable for gambling. pitch, and pinochle were played with cards

[Ed. Note.-For other cases, see Gaming, for money by various persons and upon the Cent. Dig. $$ 190–198; Dec. Dig. § 74.* tables furnished by Morris and that the usual

For other definitions, see Words and Phrases, amount played for was 5 cents ante and 25 First and Second Series, Gambling Table.]

cents limit. That during the course of the 2. GAMING ($ 74*)-KEEPING GAMING TABLE games 5 cents would be taken out of the pot -ELEMENTS OF OFFENSE.

Where one keeps a gaming table on which and laid aside and when a sufficient amount games of chance are played, he is guilty of the had accumulated the players would order offense of keeping a gaming table, denounced by | cigars, cigarettes, chewing gum, or candy,

*For other cases see same topic and section NUMEER in De: Dig. & Am. Dis. Key-No. Series & Rep'r Indexes

from Morris or some one representing him,, any denomination, at which cards, dice or any and the amount thus accumulated would be other game of chance is played for money, or handed to Morris without counting it or concerned in interest in the keeping or exhibit

other thing of value, or shall be a partner or without estimating the gross amount of the ing such table, bank, sweat cloth, or other depurchases. That at times the money would vice, he, she or they shall be deemed guilty of a be spent for oysters or drinks not furnished misdemeanor,” etc. Rev. Code, 961. by Morris. · There was also evidence that at It is that law that the counsel in this times Morris himself joined in the above case have asked us to construe. mentioned games. There was no evidence, [1] The accused is charged under the first however, that Morris had any direct pecun- and third counts of this indictment with iary interest in the games, or that he was keeping or exhibiting a gaming table. In what is technically known as a “backer.” the opinion of the court a person keeping a The accused offered no evidence upon his gaming table is liable under the statute; and part.

by keeping, the ordinary meaning of the State's Prayers.

word is applicable. The word keeping means

to maintain, to control, to carry on, to man1. That if the jury find that the accused

age. A gaming table is a table used for kept or exhibited any table at which a game gaming purposes, a table upon which games of cards was played for money, then they of chance are played for a stake, and the should find him guilty, as under the first evident idea in the minds of the legislators clause of the first section of the act (chapter was that the keeping of a table to be used for 454, volume 11, Laws of Delaware, Revised gaming purposes and called a gaming table Code, 961), the mere exhibiting or keeping of was an important and almost necessary ada gaming table is made the crime. Toney y junct in the matter of gambling, and that in State, 61 Ala. 1; Wren v. State, 70 Ala. 1; 1 prohibiting the keeping or exhibiting of a Bibb v. State, 83 Ala. 84, 3 South. 711; Id., gaming table, the effect would be to lessen 84 Ala. 13, 4 South. 275.

the offense of gambling. 2. That it is not necessary for the state to show that the defendant had any pecun- indictment in this case the accused is charg

[2] Under the first and third counts of the iary interest or expectation of gain in the keeping and exhibiting of a gaming table, to ed with exhibiting and keeping (on different show a violation of the first clause of sec. charged is fully sustained when the fact is

dates) a gaming table. The offense SO tion one. See authorities above cited and Commonwealth v. Colton, 8 Gray (Mass.) 488. proven to the satisfaction of the jury that

3. That the fact that a table may at times the accused kept or exhibited a gaming tahave been used for other purposes than gam- ble, and the matter of the accused being

coning would not deprive it of its character as cerned in interest in, or deriving a profit a gaming table, if as a matter of fact it was from it, is not an element in the charge. kept and exhibited as a gaming table. Jones The keeping and exhibiting are the only

things that need be shown under these two v. Territory, 5 Okl. 536, 49 Pac. 934, 935.

counts. That disposes of the first and third Counsel for the accused opposed the pray-counts. ers as asked for by the state, and requested

In the second and fourth counts the acthe court to charge the jury that, in order to cused is charged with keeping and exhibiting convict, it is incumbent upon the state to a gaming table in which he was concerned, prove beyond a reasonable doubt all the nec. or in which he had an interest. The court, essary elements or ingredients of the offense feel constrained to say that under the evicharged in the indictment.

dence adduced in this case in its opinion the That in order to convict, the jury must be charge made in the second and fourth counts satisfied beyond a reasonable doubt that the of the indictment that the accused was conaccused had a pecuniary interest in the keep-cerned in interest in the keeping or exhibiting and exhibiting of a gaming table.

ing of a gaming table has not been sustained,

and the charges made in those two counts CONRAD, J. (charging the jury). Gentle

are withdrawn from your consideration; so men of the jury: Charles B. Morris, the ac, that the question left for your determination cused, stands indicted before this court and is on trial before you under an act of the is, whether or not the accused kept or exhibis on trial before you under an act of the ited a gaming table, as defined. You are to General Assembly, entitled “An act for the weigh, gentlemen of the jury, and consider suppression of gaming,” passed as long ago the evidence as you have heard it from the as 1857 (11 Del. Laws, c. 454), so that it is stand. If the state has proven to your satisold enough to be good. It is the province of faction that the accused kept or exhibited a the court when called upon, to interpret and construe the law, and it is your province as gaming table, that it was under his control members of the jury to take the law and to or management, then the offense charged has

been sustained and your verdict should be fit the facts into it and from that make up guilty, regardless of the fact that no profits your verdict. This act provides:

were shown to have been proved as received “Section 1. That if any person or persons shall keep or exhibit a gaming table, faro bank. by the accused from the table. sweat cloth, roulet table, or other device under [3, 4] We also charge you, gentlemen of the


jury, that the accused is presumed to be in- , sweat cloth, roulet table, or other device under nocent until he is proven guilty beyond a rea- any denomination, at which cards, dice or any sonable doubt, and the burden is upon the other thing of value, or shall be a partner or

other game of chance is played for money, or state to prove its case, so that if after con- concerned in interest in the keeping or exhibitsideration in a careful conscientious way, as ing such table, bank, sweat cloth, or other dereasonable, fairminded men, you have a rea- vice, he, she or they shall be deemed guilty of

a misdemeanor,” etc. sonable doubt as to the guilt of the accused, then you should find him not guilty. The

The indictment under which the defendmatter is left with you.

ant is being tried was obviously drawn in

contemplation of the two provisions of this Verdict, guilty.

one paragraph of the statute, and contains

two counts, the first of which charges sim(5 Boyce, 230)

ply that the defendant kept or exhibited a STATE v. PANARO.

gaming table at which cards, dice or other (Court of General Sessions of Delaware. New games of chance were played for money, and Castle. May 7, 1914.)

the second, that the defendant was "con1. GAMING (8 63*)-STATUTES-POLICE POWER. cerned in interest" in such a table being kept

Rev. Code 1851, amended to 1893, p. 961 (11 Del. Laws, c. 454) § 1, making it a misde- and exhibited for such a purpose. meanor for any person to keep a gaming table

It is contended that the mere keeping and or to be interested in the keeping of such table, exhibiting of a gaming table at which games is directed against gambling appliances them- of chance are played for money is not withselves, and is within the police power of the state, being enacted for the protection of the in the prohibition of the statute, and hence morals of society.

the first count states no offense, and that [Ed. Note.-For other cases, see Gaming, the only offense contemplated by the statute Cent. Dig. 120; Dec. Dig. 8 63.*]

is that of being concerned in interest in the 2. GAMING (§ 74*)--STATUTES-CONSTRUCTION. keeping of such a table for such a purpose,

Rev. Code 1852, amended to 1893, p. 961 and as the testimony of the witness discloses (11 Del. Laws, c. 454) § 1, making it a misdemeanor for any person to keep or exhibit a no such interest, no offense under the second gaming table, or to be interested in the keep-count is proven. ing of such a table, denounces two offenses, one The statute in question does not prohibit the "keeping" or maintaining of a table upon gambling, but is designed rather to reduce which persons are authorized to play games of chance, and the other being inferested in the the opportunities and discourage the facilikeeping; hence one who keeps a gaming table ties for gambling. There is nothing in this is guilty, though he derives no profit from the statute which makes it unlawful for four keeping

men to play cards for money upon a table, [Ed. Note.-For other_cases, see Gaming, Cent. Dig. 88 190–198; Dec. Dig. 8 74.*]

nor does it make it unlawful for the owner

of a table to permit it to be used for card Daniel Panaro was indicted for violation of the law against keeping gaming tables. playing for stakes, when the table is neither

kept nor exhibited for that purpose. The On motion to strike the testimony of a wit-object of the statute as its title indicates, is ness. Motion denied.

“the suppression of gambling,” and the parSee State v. Morris, 91 Atl. 998.

ticular method pursued by the Legislature Indictment (No. 27, May term, 1914) for to attain this end, was to prevent and proviolating the provisions of chapter 454, vol. hibit the keeping of gambling tables and deume 11, Laws of Delaware (Rev. Code 1852, vices, under circumstances of notoriety and amended to 1893, page 961), against keeping opportunity, which would induce or enable gaming tables.

men the more readily to gamble. Counsel for the defendant moved that all This enactment is within the police power of the testimony of one of the witnesses be of the state, and under that power, a state stricken out upon the ground that the testi- may enact such laws of regulation and remony did not show that the defendant was straint over men and things as are reasonable “concerned in interest” in keeping a gaming and proper to protect the lives, health, comtable, and therefore did not prove that the fort and property of its citizens and to prodefendant had violated any provision of the mote the order, morals and welfare of sostatute under which he was indicted.

ciety. Argued before WOOLLEY and RICE, JJ. The meaning of this statute is such as its

Josiah O. Wolcott, Atty. Gen., for the plain words conveys. A gaming table is a State. Robert G. Harman, of Wilmington, table used for gambling purposes, upon which for defendant.

games of chance are played for stakes. The

use to which the table is put characterizes WOOLLEY, J. [1, 2] The statute under the table and determines its part in the which the defendant is indicted is chapter crime. If a table so used and thus char454, volume 11, Laws of Delaware (Revised acterized is kept and exhibited for the uses Code of 1852, amended to 1893, page 961), to which it is put, then he who keeps or exand is as follows:

hibits a table for such a purpose, violates “Section 1. That if any person or persons

the law. shall keep or exhibit a gaming table, faro bank, The words “keep” or “exhibit," as used

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

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