Collison v. State
| Decision Date | 25 October 1938 |
| Citation | 39 Del. 460,2 A.2d 97 |
| Court | United States State Supreme Court of Delaware |
| Parties | NORMAN COLLISON, JAMES H. LATCHUM and CLARENCE E. GRACE, Respondents Below, Plaintiffs in Error, v. THE STATE OF DELAWARE, upon the relation of Percy Warren Green, Plaintiff Below, Defendant in Error |
Supreme Court, No. 3, June Term, 1938.
Quo warranto by the State of Delaware, on the relation of Percy Warren Green, Attorney General, to test the validity of the appointment of Norman Collison, James H. Latchum, and Clarence E. Grace, as members of the State Industrial Accident Board. To review a judgment of ouster, 197 A. 836 defendants bring error.
Reversed.
Writ of Error to the Superior Court for New Castle County.
The writ calls for a review by this court of a judgment of ouster entered by the Superior Court sitting in and for New Castle County in a quo warranto proceeding instituted by the State on the relation of the Attorney-General, against the plaintiffs in error who were purporting to act as members of the Industrial Accident Board.
On December 31, 1933, Robert K. Jones was appointed a member of the Board for a term of six years; on November 9, 1935, Harry V. Lyons was appointed a member for a like term; and on December 2, 1935, Charles H. Grantland was appointed a member for a like term.
On June 15, 1937, the Governor, after having requested the resignation of Mr. Lyons and not having received the same, by letter under that date undertook to remove him from office notwithstanding six years had not then elapsed since his appointment. After like requests for resignation and failure to comply therewith, the Governor undertook to remove from office Messrs. Jones and Grantland on the dates respectively of July 12, 1937, and August 17, 1937, before the expiration of the period of six years from the dates of their respective appointments.
Following said removals, the Governor appointed to the vacancies the plaintiffs in error, Messrs. Collison, Latchum and Grace, for the terms of six years commencing respectively on June 22, 1937, July 12, 1937 and August 17, 1937.
Thereafter the Attorney-General inaugurated quo warranto proceedings against the new appointees and judgment of ouster was awarded against them on March 4, 1938. See State v. Collison, 9 W. W. Harr. (39 Del.) 245, 197 A. 836. Whereupon the pending writ of error to the June Term, 1938, of this court was sued out.
The judgment is reversed.
E. Ennals Berl and Josiah Marvel, Jr., for Plaintiff in Error, Clarence E. Grace.
Hugh M. Morris, S. Samuel Arsht and James M. Tunnell, Sr., for Plaintiffs in Error, Norman Collison and James H. Latchum.
Percy Warren Green, Attorney-General, in propria persona, James R. Morford and H. Albert Young for Defendant in Error.
OPINION
WOLCOTT, Chancellor.
When occasion arises to refer to the parties, the designation of them will be as in the court below. The defendant in error will be called the relator and the plaintiffs in error will be called the defendants.
The statute creating the Industrial Accident Board was enacted in 1917. The statute is known and cited as the Delaware Workmen's Compensation Law of 1917, and appears as Chapter 175 of the Revised Code of 1935, § 6071 et seq. It confers jurisdiction upon the Board of all cases arising under the compensation schedules of the act and entrusts to the Board the general administration of the act's provisions.
Section 23 of the Act (Revised Code 1935, § 6093) creates the Board. Since the particular question here involved has to do with the title to office of members of the Board, it is necessary to quote no more of the language of the act than that which is pertinent in that connection. The portion thereof which is of immediate interest is found in Sec. 6093 of the Revised Code of 1935, and reads as follows:
In removing the old members of the Board, the Governor assigned no cause for his action and afforded them no opportunity to be heard in opposition.
The Governor relied on the express language of the act wherein it is provided that he "may remove any member of said Board with or without cause," in support of the power he assumed to exercise. That the act intended to confer on him the arbitrary power of removal is too plain for argument. The fact that the act provided that the first appointees should be appointed for terms respectively of two, four and six years, and that thereafter the appointments should be for six years, might be said to indicate an intent that the Board should always have in its composition at least two experienced members, and so to negative the suggestion that such a complete change of personnel as would be involved in the contemporaneous removal of all the members, was ever intended. This is the argument of inference. It is inference drawn from only a portion of the act. It ignores the express provision that any member may be removed with or without cause. No limitation is put upon the power of removal either as to the time of its exercise in relation to the various members or as to the number that may be removed. Where inference is confronted by express denial of its truth, it must be rejected.
We repeat, then, that it is too plain for argument that the act intended to confer on the Governor the power arbitrarily to remove the members of the Board.
In so far as legislative intent is concerned, nowhere, either in the opinion of the court below or in the brief of argument of the relator, is it seriously suggested that the power which was conferred was not intended to be general in its scope and arbitrary in its exercise.
The sole ground of attack by the relator, both in the court below and in this court, consists in the contention that the General Assembly acted in violation of constitutional restraint when, having created an office with a term of six years, it proceeded to confer upon the Governor the power to remove with or without cause the incumbent thereof before the expiration of the six year period.
The court below held that the office of member of the Industrial Accident Board is an office having a definitely fixed term, and that under the constitution of this State it is beyond the power of the General Assembly when it creates an office with a fixed term to confer on the Governor an arbitrary power of removal therefrom. While there is no express inhibition in the constitution against the conferring of such power upon the Governor in the case of a statutorily created office, the court below held there was a clear implication in the constitution to that effect. Hence it concluded that the removal clause is in conflict with the constitution and is therefore void. Wherefore judgment of ouster was entered.
The question of the constitution's interpretation engaged the attention of the court below throughout most of its opinion, which is reported in full in 9 W. W. Harr. (39 Del.) 245, 197 A. 836.
Having arrived at the conclusion that it was beyond the power of the General Assembly to create an office of a fixed term and at the same time to authorize the Governor arbitrarily to remove an incumbent thereof before the expiration of the specified term, the court below then proceeded to examine the statute with the view of ascertaining whether or not the offices created by it were in fact offices with fixed terms and so beyond the power of the General Assembly to authorize removals therefrom, under the constitution as constructed. The conclusion was reached that the statute was intended to create offices of fixed and definite tenures of six years each; and having reached that conclusion the court below applied the implied prohibition of the constitution to the removal clause and held it to be void.
Now it is apparent that one of the essential premises upon which the conclusion of the court below is based is, that the office of a member of the Industrial Accident Board is an office having a rigid term of a fixed number of years. Unless the office has that characteristic, viz., the characteristic of a definitely fixed term, there can be no occasion for consideration of the constitutional question. The opinion of the court below shows very clearly that it is framed on that theory.
There is nothing in our constitution which expressly requires the legislature in creating offices to affix to them terms of definite duration. Neither is anything to be found therein which is impliedly to that effect. The only use of the word "term" found in the constitution which can in any sense be attributable to statutory offices is in the bill of rights (Art. 1, Sec. 19), where it is provided that no office shall be created or exercised for a longer term than during good behavior. But as is apparent, this provision does not purport to require the legislature when an office is created to give to it a fixed term. All it does is to require that the tenure of office shall in no case extend beyond good behavior, and it is equally applicable to both constitutional and statutory officers, regardless of whether the term be one of a fixed or of an indefinite duration.
It is to be observed that in the impeachment article (Art. 6) of the constitution the...
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