Opinion of the Justices

• Decision Date: 11 January 1962
• Court: United States State Supreme Court of Delaware
• Parties: , 54 Del. 366 .C. § 2102. Supreme Court of Delaware

Page 205

177 A.2d 205

4 Storey 366, 54 Del. 366

In re OPINION OF THE JUSTICES of the Supreme Court in

Response to a Question Propounded by the Governor

of Delaware pursuant to 29 Del.C. § 2102.

Supreme Court of Delaware.

Jan. 11, 1962.

To His Excellency Elbert N. Carvel, Governor of Delaware:

Reference is made to your letter of September 6, 1961, addressed to the Chief Justice, requesting the opinion of the members of the Supreme Court upon the constitutionality of an 'ACT CREATING AND CHARTERING THE DELAWARE INDUSTRIAL BUILDING COMMISSION, AUTHORIZING THE COMMISSION TO ISSUE BONDS AND PLEDGING THE CREDIT OF THE STATE THEREFOR', (53 Laws, Ch. 167), and also on the constitutionality of bonds issued pursuant to this act. Of course, the answer to the latter part of your question relating to the constitutionality of bonds to be issued will be the same as the answer to the question of the constitutionality of the act which authorizes their issue.

53 Laws, Ch. 167, was passed with the affirmative vote of three-fourths of all the members of the General Assembly elected to each House, and was approved by the Governor on August 18, 1961. The act amends 6 Del.C., by adding a new Part IV entitled Commercial Development, and by adding a new Chapter 70 entitled Delaware Industrial Building Commission. By § 7001 certain legislative findings and a declaration of policy are made. In substance these are that the public welfare depends upon the steady employment of the State's citizens in useful occupations; that in certain agricultural areas of the State many citizens are employed sporadically or not at all; that such areas have increasingly limited opportunities for employment in agriculture; that the increasingly limited opportunity for employment in agriculture threatens the economic stability of the State and depresses the standard of living of its citizens to the detriment of the public health and welfare, and that the creation of an Industrial Development Commission will permit the location of industrial enterprises in agricultural areas with the consequent elimination of areas of sporadic and chronic unemployment, all to the benefit of the public welfare.

The act, accordingly, creates an Industrial Building Commission with authority granted by § 7005 to certify private nonprofit corporations which meet the statutory standards as Certified Development Corporations, and with further authority granted by § 7003, when a project for the location of an industry in an unemployment area meets the standards required by that section, to pledge the credit of the State for the guaranty of the bonds of the Development Corporation proposing the project. The proceeds of the sale of the Development Corporation bonds are then to be used for the construction or acquisition of the physical structures and land of the project, which will then be leased or sold to the private industry thus induced to locate within the area.

Upon receipt of your letter and after a preliminary examination of the possible subordinate questions of law raised by your inquiry, the members of the Court were of the opinion, because of the far-reaching nature of those questions, that it was desirable to formulate an answer to your inquiry only after full briefing and oral argument of the possible questions.

Due to lack of funds, it was impossible to employ counsel for this purpose. Accordingly, at the request of the members of the Court, and despite the fact that ordinarily it is the duty of the Attorney General to uphold the constitutionality of acts of the General Assembly, the Honorable Januar D. Bove, Jr., Attorney General, agreed to take the burden of an attack on the act's constitutionality. Similarly, Ernest S. Wilson Jr., Esquire, of the New Castle County Bar, who represents private parties interested in upholding the act, agreed to accept the burden of upholding its constitutionality. Both of these gentlement ably and forcefully presented their respective sides of the argument, all without cost to the State. We acknowledge our debt to them for their indispensable assistance.

So that our answer to your inquiry would be as complete as possible, the Attorney General conferred with the State's bonding attorneys and formulated several questions of law upon the answers to which the ultimate question of constitutionality depends. The argument before us was confined to these questions, and our answer to your question should therefore be considered as limited by these precise questions.

The questions thus formulated are as follows:

1. Does 53 Laws, Ch. 167, violate Article II, Section 16 of the Constitution for the reason that it contains subjects not expressed in its title?

2. Is 53 Laws, Ch. 167, an unconstitutional delegation by the General Assembly of the legislative powers to tax, appropriate, and borrow money and to lend the credit of the State to private persons in violation of Article I, Section 7, and Article VIII, Sections 1, 3, 4 and 6 of the Constitution of the State of Delaware?

3. Is 53 Laws, Ch. 167, unconstitutional because it is for a private purpose in violation of Article I, Section 7, and Article VIII, Sections 1, 3, 4 and 6 of the Constitution of the State of Delaware?

We will state our answers to these questions in the order in which they are set forth.

Question No. 1

Article II, Section 16, of the Constitution, Del.C.Ann. provides:

'No bill or joint resolution, except bills appropriating money for public purposes, shall embrace more than one subject, which shall be expressed in its title.'

On many occasions the Courts of this State have had occasion to consider this provision of the Constitution. It would serve no purpose to review these decisions. Suffice it to say that it is now well settled that Article II, Section 16, does not require the title of a bill to be an index of its details, or a synopsis of the means by which the bill's object is to be accomplished. The requirements of the section are satisfied if the title of the bill is sufficiently informative so as to put on notice parties interested in the general subject matter in such manner as would lead them to inquire into it. State ex rel. Morford v. Emerson, 1 Terry 328, 10 A.2d 515, aff'd 1 Terry 496, 14 A.2d 378; State ex rel. Craven v. Schorr, 11 Terry 365, 131 A.2d 158. The fundamental purpose of the section is to prohibit the passage of sleeper legislation.

The Attorney General argues that this title is defective because it does not give fair notice that the bill would authorize the Industrial Commission to issue bonds upon the credit of the State; to guarantee the bonds of private corporations; that the State's immunity to suit is waived, and that one section of the act amounts to an appropriation of public funds.

We are of the opinion, however, that the title of this act, indicating as it does the creation of an Industrial Commission with authority to issue bonds and pledge the credit of the State in support thereof, is notice to interested parties of such character as to require of them an inquiry into the body of the act. We do not think the title can fairly be described as designed to trap the unwary into inaction. All interested parties are put on notice that the bill would permit the pledging of the State's credit and the possible ultimate expenditure of public money.

We think 53 Laws, Ch. 167, is not unconstitutional as a violation of Article II, Section 16.

Question No. 2

The attack upon the act as an improper delegation of powers by the General Assembly to the Industrial Commission generally speaking is that the act confers upon the Commission the power to tax, appropriate money, to borrow money and to lend the credit of the State, all in violation of Article I, Section 7, and Article VIII, Sections 1, 3, 4 and 6 of the Constitution.

Article I, Section 7, is the so-called due process clause, or law of the land, of the State Constitution. Article VIII, Section 1, requires that all taxes shall be uniform upon the same class of subjects. Article VIII, Section 3, provides that no money shall be borrowed or public debt created except pursuant to an act of the General Assembly passed with a three-fourths majority of all the members. Article VIII, Section 4, prohibits the appropriation of public money to, the issuance of bonds to, or the pledging of the credit of the State to any private corporation other than pursuant to an act passed with a three-quarter majority of all the members of the General Assembly. Article VIII, Section 6, provides that no money may be drawn from the State Treasury but pursuant to an appropriation made by an act of the General Assembly.

The powers enumerated in the referred-to sections of Article VIII are vested in the General Assembly as legislative powers. This being so, it is axiomatic that the General Assembly may not delegate to any other agency authority to exercise those powers. State ex rel. Morford v. Tatnall, 2 Terry 273, 21 A.2d 185; Darling Apartment Co. v. Springer, 25 Del.Ch. 98, 15 A.2d 670.

The prohibition against the delegation of legislative powers, however, does not prevent the General Assembly enacting a law exercising one or more of these legislative powers and at the same time conferring upon an administrative agency the authority to determine when the power exercised by the act shall be enforced. This is clear from the opinion in the Tatnall case where it is said:

'The maxim that power conferred upon the legislature to make laws cannot be delegated to any other authority does not preclude the legislature from delegating any power not legislative which it may itself rightfully exercise. It may confer an authority in relation to the execution of a law which may involve discretion, but such authority must be exercised under and in pursuance of the law. The legislature must declare the policy of the law and fix the legal principles which are to control in given cases; but an administrative...