Martin v. Trivitts
| Decision Date | 24 March 1954 |
| Citation | 103 A.2d 779,9 Terry 368,48 Del. 368 |
| Court | Delaware Superior Court |
| Parties | , 48 Del. 368 MARTIN v. TRIVITTS et al. |
Samuel R. Russell (of Tunnell & Tunnell), Georgetown, for plaintiff.
Frederick P. Whitney, Georgetown, for defendants.
This is an action for a declaratory judgment.
On February 1, 1952, the plaintiff was elected Secretary of the Department of Elections of Sussex County. On March 12, 1953, the plaintiff was discharged by the Department and the defendant Lank was elected Secretary in his place. By this action, the plaintiff seeks the declaration of this Court that the election of Lank was invalid, that the plaintiff should be reinstated as Secretary and that the plaintiff is entitled to recover from Lank all compensation received by Lank as Secretary.
The defendants move to dismiss the complaint on the ground that title to the post of Secretary of the Department of Elections should be tried in a quo warranto proceeding brought by the Attorney General on behalf of the State and that, therefore, the Court does not have jurisdiction to grant, and the plaintiff does not have the standing to seek, a declaratory judgment in this case.
The defendants' argument may be accepted only if a public office is involved in this controversy. See State ex rel. Green v. Glenn, 9 W.W.Harr. 584, 4 A.2d 366; Marshall v. Hill, Del.Super., 93 A.2d 524; Brooks v. State ex rel. Richards, 3 Boyce 1, 79 A. 790, 51 L.R.A.,N.S., 1126. I am of the opinion that the position of Secretary of the Department of Elections of Sussex County is not a 'public office' within the recognized meaning of the term as used in the law governing quo warranto proceedings.
The following provisions of the Statute, relating to the Department of Elections, are particularly pertinent:
15 Del.C. § 109 provides:
15 Del.C. § 112 provides:
'(a) Each Department shall fix the salary of its secretary, subject to the limitations of subsection (b) of this section.
15 Del.C. § 114 provides:
The distinction between a public office and a public employment was considered by this Court in State ex rel. Green v. Glenn, supra [9 W.W.Harr. 584, 4 A.2d 367]. In that case, it was held that the Secretary of the Department of Elections for the City of Wilmington, as then constituted under an earlier Statute, was not a public officer. The test...
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Stiftel v. Malarkey
...compensated by the State. State ex rel. Biggs v. Corley, Del.Ct. in Banc, 6 W.W.Harr. 135, 172 A. 415 (1934); Martin v. Trivitts, Del.Super., 9 Terry 368, 103 A.2d 779 (1954); State ex rel. Green v. Glenn, Del.Super., 9 W.W.Harr. 584, 4 A.2d 366 (1939); Wharton v. Everett, Del.Super., 229 A......
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IN RE REQUEST OF GOV. FOR ADVISORY OPIN.
...that opinion, the Justices expressly did not express a view on Del. Const. art. IV, § 14. Id. 672 A.2d at 7 n. 6. 20. Martin v. Trivitts, Del.Supr., 103 A.2d 779 (1954). 21.Opinion of the Justices, 672 A.2d at 8. Some other states have more exacting methods of resolving these questions. The......
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Stiftel v. Malarkey
...of the State." State ex rel. Biggs v. Corley, Del.Ct. in Banc, 6 W.W.Harr. 135, 172 A. 415, 419 (1934). See also Martin v. Trivitts, Del.Super., 9 Terry 368, 103 A.2d 779 (1954); State ex rel. Green v. Glenn, Del.Super., 9 W.W.Harr. 584, 4 A.2d 366 (1939); Wharton v. Everett, supra. Since t......
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Raduszewski v. Superior Court In and For New Castle County
...of the Department of Elections of Wilmington was not a public office, title to which could be tried by Quo warranto. In Martin v. Trivitts, 9 Terry 368, 103 A.2d 779, it was held that the Secretary of the Department of Elections for Sussex County was not a public officer since no specific p......