v. Smith, 23 Mont. 44, 57 Pac. 449; State v. Savage, 64 Neb. 684, 90 N. W. 898, 91 N. W. 557; State v. Blaisdell, 4 Nev. 241; Cotten v. Ellis, 52 N. C. 545; State v. Chase, 5 Ohio St. 528; State v. Nash, 66 Ohio St. 612, 64 N. E. 558; State v. Brooks, 14 Wyo. 393, 84 Pac. 488, 6 L. R. A. (N. S.) 750, 7 Ann. Cas. 1108. But it is settled that the executive cannot be compelled by mandamus to perform acts concerning which he is vested with a discretion. 6 A. & E. (2d Ed.) 1013; 2 Bailey, Habeas Corpus, § 227; 26 Cyc. 158. That the weight of authority is that the | 572; Chumasero v. Potts, 2 Mont. 242; State courts have no power to coerce or compel the Governor to perform any act or duty whether such act or duty is strictly ministerial, or otherwise. State v. Drew, 17 Fla. 67; People v. Bissell, 19 Ill. 229, 68 Am. Dec. | 591; People v. Dunne, 258 Ill. 441, 101 N. E. 560, 45 L. R. A. (N. S.) 500; State v. Warmoth, 22 La. Ann. 1, 2 Am. Rep. 712; State v. Warmoth, 24 La. Ann. 351, 13 Am. Rep. 126; In re Dennett, 32 Me. 508, 54 Am. Dec. 602; Rice v. Austin, 19 Minn. 103 (Gil. 74), 18 Am. Rep. 330; People v. Governor, 29 Mich. 320, 18 Am. Rep. 89; Hawkins v. Governor, 1 Ark. 570, 33 Am. Dec. 346; Board of Directors v. Wolfly, 3 Ariz. 132, 22 Pac. 383, 8 L. R. A. 188; Vicksburg, etc., R. Co. v. Lowry, 61 Miss. 102, 48 Am. Rep. 76; Jonesboro Turnpike Co. v. Brown, 8 Baxt. (Tenn.) 490, 35 Am. Rep. 713; Bates v. Taylor, 87 Tenn. 319, 11 S. W. 266, 3 L. R. A. 316; Mauran v. Smith, 8 R. I. 192, 5 Am. Rep. 564; State v. Fletcher, 39 Mo. 388; Huidekoper v. Hadley, 177 Fed. 1, 100 C. C. A. 395, 40 L. R. A. (N. S.) 505; State v. Cruce et al., 31 Okl. 486, 122 Pac. 237; Merritt v. Kraft, 71 Misc. Rep. 492, 129 N. Y. Supp. 636; People v. Morton, 156 N. Y. 136, 50 N. E. 791, 41 L. R. A. 231, 66 Am. St. Rep. 547; Hovey v. State, 127 Ind. 588, 27 N. E. 175, 11 L. R. A. 763, 22 Am. St. Rep. 663; State v. Dike, 20 Minn. 363 (Gil. 314); State v. Dinkins, 77 Miss. 874, 27 South. 832; State v. Stone, 120 Mo. 428, 25 S. W. 376, 23 L. R. A. 194, 41 Am. St. The question here is whether or not the duty of choosing registration officers, as nearly equal as possible, from the lists submitted, is a ministerial duty. What are ministerial duties? See note, 33 Am. Dec. 362; Pennington v. Streight, 54 Ind. 376; State v. Johnson, 4 Wall. 475, 18 L. Ed. 437: A ministerial duty is one in respect to which nothing is left to discretion. Sullivan v. Shanklin, 63 Cal. 247; Rains v. Simpson, 50 Tex. 495, 32 Am. Rep. 609; State v. Brooks, 14 Wyo. 393, 84 Pac. 490, 6 L. R. A. (N. S.) 750, 7 Ann. Cas. 1108. See 26 Cyc. 160; 6 A. & E. Ency. of Law (2d Ed.) 1016. All courts agree that mandamus will not lie against a Governor to compel the exercise of governmental, political or discretionary powers. Traynor v. Beckham, 116 Ky. 13, 74 S. W. 1107, 76 S. W. 844, 3 Ann. Cas. 388. Counsel for the petitioners, in reply, urged that the Governor did not appoint the registration officers in accordance with the statute; that he should have given the committees for half of the registrars, and one-half of the and against license respectively each oneassistant registrars, and one-half of the alternate registrars, for the reason that on election day each registrar becomes an inspector of election and the two assistant registrars drop out, and the law requires that each committee having charge of the cam Rep. 705; Gledhill v. State, 25 N. J. Law, 331; Hartranft's Appeal, 85 Pa. 433, 27 Am. Rep. 667; Woods v. Sheldon, 9 S. D. 392, 69 N. W. 606; State v. Frazier, 114 Tenn. 516, 86 S. W. 319; Houston R. Co. v. Randolph, 24 Tex. 317; State v. Rusk, 55 Wis. 465, 13 N. W. 452; Ky. v. Dennison, 24 How. 66, 16 L. Ed. 717; Rice v. Governor, 207 Mass. 577, 93 N. E. 821, 32 L. R. A. (N. S.) 355; People v. Gullom, 100 Ill. 472; People v. Yates, 40 Ill. 126; People v. Dubois, 33 Ill. 9; State v.paign for and against license shall each name Kirkwood, 14 Iowa, 162; Commonwealth v. Wickersham, 66 Pa. 134; Teat v. McGaughey, 85 Tex. 478, 22 S. W. 302; Oklahoma City v. Haskell, 27 Okl. 522, 112 Pac. 992; State v. Huston, 27 Okl. 606, 113 Pac. 190, 34 L. R. A. (N. S.) 380. See also note to 33 Am. Dec. 346; note in 6 L. R. A. (N. S.) 750; Merrill on Mandamus, §§ 91 to 94; 2 Bailey, Habeas Corpus, 932; 26 Cyc. 229; Cooley's Cons. Lim., note on page 162; 6 A. & E. (2d Ed.) 1015. There is authority holding that the Governor may be compelled to perform a duty strictly ministerial. Tenn., etc., Co. v. Moore, 36 Ala. 371; Middleton v. Low, 30 Cal. 596; Harpending v. Haight, 39 Cal. 189, 2 Am. Rep. 432; Greenwood Co. v. Routt, 17 Colo. 156, 28 Pac. 1125, 15 L. R. A. 369, 31 Am. St. Rep. 284; Martin v. Ingham, 38 Kan. 641, 17 Pac. 162; Traynor v. Beckham, 116 Ky. 13, 74 S. W. 1105, 76 S. W. 844, 3 Ann. Cas. 388; Groome v. Gwinn, 43 Md. a judge of election. So that as the Governor gave the anti-license forces all of the registrators, they will, on the day of election, have a majority of the election officers in every one of the thirty-four election districts of rural New Castle county. This is not an equal division, and there has been a failure to comply with the statute. The rule, therefore, should not be discharged. Mandamus will lie to the Governor in this case to compel compliance with the statute. That the general rules and principles applicable to the issuance of the writ of mandamus apply where the application is for the writ addressed to a public officer; that the writ will issue to the chief executive of the state to compel the performance of ministerial duties which by special act or otherwise it is his plain duty to perform. State v. Department of Elections, 5 Boyce (28 Del.) 213, 91 Atl. 993. Recognizing the three departments of government, as well as the theory that they are independent of each other, yet it is not the office of the person to whom the writ is directed, but the nature of the thing to be done by which the propriety of issuing the writ is to be determined. (7 Boyce, 25) FOURACRE et al., Levy Court Com'rs, v. WHITE et al. (Superior Court of Delaware. New Castle. Aug. 1, 1917.) That with respect to the appointment of 1. PROHIBITION 16-JURISDICTION TO ISthe registration officers which the Governor SUE. is required to make under the act, and par-issue a writ of prohibition, notwithstanding ConThe Superior Court has inherent power to ticularly with respect to the equal division stitution gives that power to Supreme Court. thereof, he is to be regarded as to such duty, 2. PROHIBITION 3(1)-ACTS AND PROCEEDnot as the executive, but as a merely ministerial officer, and the writ will lie to him to compel the performance of such duty. 2 Bailey on Juris. § 647. PENNEWILL, C. J., delivering the opinion of the court: The court are of the opinion that the petition for a rule to show cause why a writ of peremptory mandamus shall not issue in the above stated case to compel the Governor to appoint the registration officers in New Castle county, outside of Wilmington, in accordance with the law should be dismissed, because it appears from an inspection of the petition that the Governor has performed this duty in compliance with the statute. INGS OF PUBLIC OFFICERS. Superior Court may issue writ of prohibition to prevent the performance of a public act by a tribunal acting under color of law that has in fact no legal existence, provided there is no other immediate and adequate remedy. 3. PROHIBITION 28-ACTS AND PROCEEDINGS OF PUBLIC OFFICERS. When writ of prohibition issues to prevent the performance of a public act, sole question is whether body undertaking to perform the act is a legal body or not, and it is immaterial whether the act sought to be prevented is judicial or ministerial. 4. STATUTES 107(1) — TITLE - CONSTITUTIONAL PROVISION-CONSTRUCTION. tle should be liberally construed, and if matters Constitutional provision as to statutory ticlaimed to constitute two subjects are connected with each other and are germane to the primary object of the statute, the act containing them is not invalid. 5. STATUTES 114(6) -TITLE-EXPRESSING SUBJECT-INTOXICATING LIQUORS. The act requires that the registration officers shall be appointed from lists of names furnished by the committees, and that they shall be divided as nearly as possible equally between the lists submitted, for each representative district. It does not require that the registrars shall be equally divided, but that the three officers appointed in each election district shall be so divided in each rep-expressed in the title and necessarily connected resentative district. Upon examination of the appointments made, we find that a more equal division of such officers could not have been made in each representative district, as appears from the list attached to the petition. It so happens that in the act under consideration the registrars are made inspectors of the election, and this will result in giving the party opposed to license a majority of the election officers in every district. This may be unfortunate, and we think it is, but the registrars are made inspectors by the statute and not by the Governor. He was authorized and directed to appoint the registration officers, including of course the registrars, and so far as we are advised, or can discover, he has complied with the terms of the act in making such appointments. This would not have been questioned, we think, if the law had not made the registrars inspectors of election; but that circumstance cannot affect the legality of the act the Governor was required to perform. The court express no opinion upon any question raised in the case except the one herein mentioned. The opinion was certified to the Superior Court, whereupon the motion to discharge the rule and dismiss the petition was granted. Statute whose general subject, as expressed in title, is holding of special election on question of local option, is not unconstitutional because it also contains provisions, not expressed in title, as to election officials and appointment by them of registration officers, since such provisions are germane to the general subject as therewith. 6. INTOXICATING LIQUORS 29-LOCAL OPAUTHORITY TO SUBMIT QUESTION CONSTITUTIONAL PROVISION. TION islature shall, on request of a majority of its Under Const. art. 13, providing that Legmembers elected from a certain district, submit at general election question of local option, and may submit that question at special election without such request, it may, when such request has been made, submit question under either mandatory or permissive provision. 7. CONSTITUTIONAL LAW 70(1)-LOCAL OPTION-AUTHORITY TO SUBMIT. Under Const. art. 13, court cannot compel Legislature to submit to voters of a district question of local option, under request made pursuant to mandatory provision, by denying it right to do so under permissive provision. 8. CONSTITUTIONAL LAW 70(1)-DISTRIBUTION OF POWERS-ENCROACHMENT ON Leg ISLATURE. Court has no power to compel Legislature to do something it should have done and failed to do. 9. INTOXICATING LIQUORS 29-LOCAL OPTION AUTHORITY TO SUBMIT CONSTITUTIONAL PROVISION. Held, that Legislature, in submitting to voters of district at special election question of local option, did not act upon request under mandatory provision of Const. art. 13, but under permissive provision. 10. INTOXICATING LIQUORS 29-LOCAL OPTION- AUTHORITY TO SUBMIT - CONSTITUTIONAL PROVISION. Where request for submission of question of local option has been presented to and received by Legislature, pursuant to Const. art. 13, it levy court of New Castle county," for a rule cannot be withdrawn. to show cause why a writ of prohibition should not issue to William P. White and others, who had been appointed and commissioned by the Governor to act as and to constitute the "department of elections for the city of Wilmington," under chapter 111, volume 29, Laws of Delaware. 11. INTOXICATING LIQUORS 34(2)-LOCAL 186-CONSTRUCTION-CASUS When there is clearly a casus omissus in a statute, the courts are powerless to supply it. 13. STATUTES 61-CONSTRUCTION - CAsus OMISSUS. Statutes should not be declared inoperative on the ground that there is an omission, unless it is very clear that there is such a defect. 14. CONSTITUTIONAL LAW 48-CONSTRUC TION-PRESUMPTION OF VALIDITY. A statute reasonably susceptible of two constructions, one of which will render it void and the other valid, must be construed so as to make it valid. 15. STATUTES 228-CONSTRUCTION - PROVISOS. Though a proviso in a statute applies ordinarily only to the section or paragraph to which it is attached, it is held to apply to other sections, where the context requires it, or it is necessary to carry into effect the evident intent of the Legislature as it appears from the whole act. 16. STATUTES 228-CONSTRUCTION - PROVISOS. Where statute provided that governor should appoint registration officials for an election from names submitted to him by committees having charge of campaigns for and against license, provided that, if such lists were not furnished, he should appoint "suitable persons having the qualifications provided for in this section," and in a later paragraph of the same section directed the appointment of other officials from similar lists, without similar proviso in case no such lists were furnished, proviso will be construed as applying to latter paragraph also. The rule was awarded and respondents waived the issuance thereof and appeared gratis without prejudice. There was a motion to discharge the rule and dismiss the petition. Argument on the motion; whereupon and before decision the court permitted the return to the rule to be filed. Motion to quash the return. Argu-, ment on last motion. The court refused to quash the return and denied the writ of prohibition. It is averred in the petition inter alia that the petitioners are the duly elected levy court commissioners for the several levy court districts of New Castle county, and as such compose and constitute "the levy court of New Castle county"; and in such capacity are charged with the duty of raising by taxation, appropriating and paying out such sums of money as are necessary to defray the legitimate expenses of the government of the said New Castle county and of the several parts thereof. That the Governor of the state of Delaware, on or about the twenty-ninth day of June, 1917, appointed, and issued commissions to the following named persons to act as and to constitute the "department of elections for the city of Wilmington," provided for by the pretended act of the General Assembly mentioned and referred to in the next succeeding paragraph hereof, to wit: William P. White, Joseph S. Hamilton and George M. Fisher, the defendants herein, and James H. Kane and Timothy J. Mooney. Conrad and Heisel, JJ., dissenting. That the said appointments by the Governor of the said five persons were made under Petition by Thomas S. Fouracre and oth-color of a pretended act of the General Asers, Levy Court Commissioners, composing and constituting the Levy Court of New Cas-"An act providing for the submission to the sembly of the state of Delaware entitled, tle County, for a rule to show cause why a writ of prohibition should not issue to Wil-vote of the qualified electors of the city of liam P. White and others, constituting the Wilmington as one district, and to the qualiDepartment of Elections for the City of Wil-fied electors of the remaining part of New mington. On joint application of parties, motion to quash the return to writ heard by the Supreme Court in banc. Motion refused, and writ denied. In the Superior Court for New Castle County; RICE and HEISEL, JJ., sitting. Frank L. Speakman, Robert G. Harman, Robert H. Richards, and Herbert H. Ward, all of Wilmington, for petitioners. Caleb D. Burchenal and Horace G. Eastburn, both of Wilmington, for respondents. Petition with affidavit annexed, by Thomas S. Fouracre and others, levy court commissioners, composing and constituting "the Castle county as one district, as mentioned of the state of Delaware, the question wheth in section 2, article XIII of the Constitution er the manufacture and sale of intoxicating the limits of the said two districts in accordliquors shall be licensed or prohibited within ance with said article XIII of said Constitution and fixing penalties for the illegal manufacture and sale of intoxicating liquors in either of said districts wherein there shall be a majority of votes cast against license," which said pretended act of the General Assembly the defendants allege was passed by the General Assembly of the state of Delaware, at its biennial session held in the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes year 1917, and allege was approved by the [ by the said paragraphs of said pretended act, Governor of said state on the fifth day of nevertheless exercising a power he did not April, A. D. 1917, and which said pretended possess, appointed five persons to constitute act of the General Assembly appears printed said department of elections, to wit, the said in volume 29 of the Laws of Delaware as defendants and the said James H. Kane and chapter 111 thereof, a copy whereof is at-Timothy J. Mooney, three of whom, to wit, tached hereto, and that the said appoint- the said defendants, were appointed from the ments were so made by the Governor particularly pursuant to the pretended authority of paragraphs 4 and 5 of section 2 of said pretended act, which said paragraphs are as follows, to wit: "The Governor shall, also, sometime in the month of June aforesaid (1917) appoint five suitable persons of the city of Wilmington for the purpose of conducting the election provided for in this act. The said persons so appointed shall be selected from a list of names submitted by the committee having charge of the campaign against license, and from a list of names submitted by the committee having charge of the campaign for license, and not more than three of said persons shall be appointed from either of said lists. "This committee so appointed shall be known as the department of elections for the city of Wilmington herein provided for and shall perform all the duties in relation to said election, and in relation to the registration therefor, shall have all the power and authority and shall be subject to all the duties and obligations so far as said election is concerned now devolving upon the department of elections of the city of Wilmington under the provisions of chapter 57 of the Revised Statutes of the state of Delaware." That at the time of making said appointments and of issuing said commissions, on the said twenty-ninth day of June, 1917, and prior thereto, there had been submitted to the Governor, and he had before him, a list of names presented and submitted by certain individuals styling themselves "the committee having charge of the campaign against license," which said list of names was then and there intended to be a list from which the Governor should select not less than two nor more than three of the five persons which the above quoted paragraphs 4 and 5 of said section 2 of said pretended act of the General Assembly provide for to be known as the "department of elections for the city of Wilmington" for the purpose of conducting the special election authorized in said pretended act of the General Assembly; but that, at the time of making said appointments and issuing said commissions there had not been submitted to the Governor any other list of names by any persons styling themselves "the committee having charge of the campaign for license" or by any other person or persons whomsoever, nor did the Governor, then and there, have any such other list before him. said list so as aforesaid submitted by the persons styling themselves "the committee having charge of the campaign against license," and the remaining two of whom, to wit, the said Kane and the said Mooney, were appointed, not from a list of names submitted to the Governor by "the committee having charge of the campaign for license" (no such list having been so submitted), but in some manner unknown to and contrary to the provisions of the said pretended act of the General Assembly. That the said action of the Governor in appointing the said five persons was and is wholly illegal and void. That the said five persons do not and cannot constitute the said department of elections contemplated by said pretended act of the General Assembly. That of the said five persons so appointed as aforesaid, the three defendants, on the thirtieth day of June, A. D. 1917, met together in the city of Wilmington and assumed and pretended to constitute the said department of elections and assumed and pretended to organize themselves, as the said department of elections, by electing the said White as president and by electing a certain Charles A. Hagner secretary. That the said Kane and the said Mooney were not present at said pretended organization of said pretended department of elections and, as your petitioners are informed and believe, have not participated in any of the acts or doings of the said three defendants so as aforesaid assuming to act as the said department of elections; and the said Kane and the said Mooney have not assumed to act as members of any such department of elec tions, nor have they assumed to take the oath of office or otherwise to qualify as members of such department. That the said action of the defendants in so pretending and assuming to constitute the said department of elections, and in organiz ing as such, was and is wholly illegal and void, and without any warrant or authority in law. That on the said thirtieth day of June, 1917, the said defendants, so as aforesaid pretending and assuming to act as the said department of elections, received a list of That the Governor, without there having names for registration officers from the said been submitted to him the two lists of names persons styling themselves "the committee provided for in the above quoted paragraphs having charge of the campaign against liof said section 2 of said pretended act and cense," and then and there the said defendwithout having both such lists before him, ants appointed and named from said list cerwithout any lawful authority to appoint the tain registration officers to conduct and hold committee of five persons to be known as the registration authorized by said pretendthe "department of elections for the city of ed act of the General Assembly for the pur other persons to serve as registration officers in place of those above mentioned who have refused to serve, as aforesaid, and also intend and are about to administer the oath required by law to persons whom they have heretofore appointed and whom they intend hereafter to appoint to serve as registration officers under the provisions of said pre conducted by said pretended act, and that the [of elections, intend and are about to appoint sa'd defendants, without having received any other list of names for registration officers from any persons styling themselves "the committee having charge of the campaign for license," then and there also named and appointed other registration officers to conduct and hold the said registration, claiming that the said other registration officers are representatives of those persons who are intended act. favor of license in the said city of Wilming- That said pretended act of the General ton. Assembly, in so far as it provides for an elec That the said defendants, so as aforesaidtion to be held in the said city of Wilmington, illegally pretending and assuming to act as is illegal, unconstitutional and void in that said department of elections, have been, it was not passed by a two-thirds vote of since the said last-mentioned date, and up to the said General Assembly. and including the present time, are proceeding to act as a legally constituted department of elections for the city of Wilmington as provided for by said pretended act, and have been and are doing all the various acts and discharging the duties and functions incumbent upon a legally created department of elections under said pretended act. That the said pretended act of the said General Assembly is illegal, unconstitutional and void in that, prior to the introduction of the bill in the said General Assembly and prior to the enactment of the same by the said General Assembly, a majority of all the members elected to each house of the General Assembly by the qualified electors in the local option district consisting of that part of New Castle county which remains after eliminating the city of Wilmington therefrom, created by section 2 of article XIII of the Constitution of the state of Delaware, by a written petition presented to the said General Assembly, requested of the said General Assembly, the submission of the question of license or no-license to a vote of the qualified electors in said district; and, after such request, the said General Assembly was wholly without power to receive, consider or act upon the said bill, or to pass the said pretended act. That the department of elections for the city of Wilmington created by the said section 2 of said pretended act of the General Assembly is a judicial body or, at least, a quasi judicial body. The acts, duties and functions required by law to be performed by said department are both judicial and ministerial. Many of the acts, duties and functions to be performed by said department involve the exercise of judgment and discretion; such as passing upon the question as to whether registration officers appointed by said department are residents and voters, passing upon the question as to whether the oath of office has been taken That the said pretended act is unconstituby such registration officers in accordance tional and void in that the body of the said with law, dismissing or removing registra-pretended act deals with two entirely sepation officers for cause and filling the vacan- rate and distinct subjects, but one of which cies so caused by the appointment of other is expressed in the title of said pretended persons possessing the proper legal qualifi-act. cations, etc. That the petitioners are informed and believe, and therefore aver, that many of the persons named and appointed to serve as registration officers by the said defendants, as heretofore averred, have refused to serve as such registration officers upon the ground that the said defendants had and have no legal authority to appoint them, and such persons, so refusing as aforesaid, have given notice to said defendants of their said refusal. Petitioners particularly aver that the following named persons, to wit: Charles P. Saylor, first district of the Seventh ward; Lewis A. Boehm, second district of the Sixth ward; Levin L. Shockley, fifth district of the Seventh ward-who were so appointed by the said defendants to serve as registration officers in the said city of Wilmington, have refused to serve upon the said ground that the said defendants have no legal authority to appoint them. That the said defendants, so as aforesaid pretending to constitute the said department That the said pretended act of the General Assembly is in conflict with section 16 of article II of the Constitution of the state of Delaware; and also is in conflict with article XIII of said Constitution. That the said pretended act of the General Assembly is in conflict with the Fourteenth Amendment to the Constitution of the United States. That the said defendants assumed to act as and to constitute the said department of elections solely under color of, by virtue of, and under the authority of the said pretended act of the General Assembly, so as aforesaid appearing printed as chapter 111 of volume 29 of the Laws of Delaware, and under color of, by virtue of, and under the supposed authority of the said pretended appointments of them, so as aforesaid made by the Governor of the state of Delaware, and the said commissions issued to them by the said Governor. That the said defendants, in so assuming to act as said department of elections, and |