State ex rel. Biggs v. Corley

• Decision Date: 03 April 1934
• Citation: 172 A. 415,36 Del. 135
• Court: Supreme Court of Delaware
• Parties: THE STATE OF DELAWARE, EX REL. JOHN BIGGS, JR., v. ROY F. CORLEY, LIEUTENANT-GOVERNOR

172 A. 415

36 Del. 135

THE STATE OF DELAWARE, EX REL. JOHN BIGGS, JR., v. ROY F. CORLEY, LIEUTENANT-GOVERNOR

Supreme Court of Delaware

April 3, 1934

Court in Banc. Petition for writs of Mandamus.

The relator, a tax payer and citizen of Delaware, filed three separate petitions in the Superior Court for Kent County praying for the issuance of peremptory writs of mandamus directing the defendant, the Lieutenant-Governor of the state, and, as such, the presiding officer of the State Senate, to issue writs of election for the purpose of filling vacancies alleged to exist in that body.

The substance of the petitions, taken collectively, is that G Clifton Maull, Ernest V. Keith and J. Burton Wharton, who had been elected to the offices of senators in the General Assembly at the general election held in 1930 for terms of four years respectively, and now occupying the senatorial office, had, each of them, been appointed to and had accepted an office under the State, G. Clifton Maull, the office of Member of the Board of Fish and Game Commissioners, Ernest V Keith, the office of Secretary to the State Board of Charities and the office of Notary Public, and J. Burton Wharton, the office of the Collector of State Revenue; that the acceptance of the aforesaid offices by the three senators operated as an implied resignation of their senatorial offices under Section 14, Art. 2, of the Constitution; that on the eighth day of December, 1933, the General Assembly then being in special session, was adjourned until the sixth day of March, 1934, by proclamation of the Governor under his constitutional power; that thereupon it was the duty of the Lieutenant-Governor, the General Assembly not having finally adjourned, but being in session within the meaning of Section 6, Art. 2, of the Constitution, to issue writs of election for the purpose of filling the vacancies existing in the membership of the senate; and that the Lieutenant-Governor refused to issue the writs of election upon demand having been made upon him.

Sections 6 and 14 of Article 2 of the Constitution, respectively, are as follows:

"Section 6. Whenever there shall be a vacancy in either House of the General Assembly, by reason of failure to elect ineligibility, death, resignation or otherwise, a writ of election shall be issued by the presiding officer of the House in which the vacancy exists, or in case of necessity in such other manner as shall be provided by law; and the person thereupon chosen to fill such vacancy shall hold office for the residue of the term. And whenever there shall be such vacancy in either House, and the General Assembly is not in session, the Governor shall have power to issue a writ of election to fill such vacancy, which writ shall be executed as a writ issued by the presiding officer of either House in case of vacancy, and the person thereupon chosen to fill such vacancy shall hold office for the residue of the term."

"Section 14. No Senator or Representative shall, during the time for which he shall have been elected, be appointed to any civil office under this State which shall have been created, or the emoluments of which shall have been increased, during such time. No member of Congress, nor any person holding any office under this State, or the United States, except officers usually appointed by the courts of justice respectively, attorneys-at-law and officers of the militia, holding no disqualifying office, shall during his continuance in Congress or in office be a Senator or Representative; nor shall any person while concerned in any army or navy contract be a Senator or Representative."

From the record, it appears that on the fifteenth day of January, 1934, the Senate, then being in session for the purpose of considering nominations to office submitted by the Governor, adopted three separate resolutions with respect to the three senators, each declaring that no vacancy existed in the office of senator and that the incumbent was fully qualified to hold the office of senator in the General Assembly.

On behalf of the defendant it was moved to dismiss the petitions for (1) that a clear right to the relief was not shown, (2) that it affirmatively appeared that the relator is not entitled to the relief, and (3) that it did not affirmatively appear that the vacancies existed in the senatorial offices.

The questions of law were certified to the Court in Banc by the Superior Court.

Charles Stewart Lynch and Howard E. Lynch, Jr., for relator.

Percy Warren Green, Attorney-General, for defendant.

LAYTON C. J., HARRINGTON, RICHARDS, RODNEY and REINHARDT, J. J., sitting.

OPINION

Layton, C. J.

One of the questions presented for determination is concerned with the status of the relator, who, as a citizen and taxpayer, has instituted these proceedings. They involve questions of public rights and duties. The object and purpose of the writs of mandamus are to procure the enforcement of public duties. No special interest in the result of the proceedings need be shown. It is sufficient that the relator is a citizen and, as such, interested in the enforcement of the laws. While a senator must be elected from a particular district, yet, upon his election and qualification he becomes a senator of the State of Delaware, and his acts, as such, affect the entire state.

These proceedings, undoubtedly, could have been instituted by the Attorney-General, or, with his consent, in his name; but a person whose only interest is that of a citizen and taxpayer of this state, also may bring such proceedings in the name of the state upon his own relation; and especially is this true where the Attorney-General appears for the state officer against whom the writs are sought and opposes their issuance. Hawkins v. Dougherty, 14 Del. 156, 9 Houst. 156, 18 A. 951; 18 R. C. L. 325; 38 C. J. 839-846.

Another question presented and argued extensively is supposed to require a construction of Section 6, Art. 2, of the Constitution, the precise question being concerned with the meaning of the word "session" appearing in this section. For the defendant it is contended that the first sentence of the section must be construed and read as though the phrase "being in session," or phrase of similar import, actually were inserted, and, therefore, the duty of the presiding officer of a house of the legislature to issue a writ of election arises only when the General Assembly is in actual session. Consequently, the Senate not being in actual session at the time the petitions for the writs were filed, no duty was cast upon the defendant, as presiding officer of that body. For the relator it is argued that the word "session" means the period of time from the convening of the Legislature in special session until its final adjournment; therefore, the Legislature, not having finally adjourned, it was the duty of the defendant to issue the writs of election. Authorities having to do with these contentions are for the defendant, People v. Fancher, 50 N.Y. 288; U. S. v. Dietrich (C. C.), 126 F. 659; Ralls v. Wyand, 40 Okl. 323, 138 P. 158; State v. Strange, 50 Wash. 321, 97 P. 233; Com. v. Gove, 151 Mass. 392, 24 N.E. 211; and for the relator, Ravenscraft v. Comm'rs, 5 Idaho 178, 47 P. 942; People v. Auditor, 64 Ill. 82; Emerson v. Rwy. Co., 37 Tex. Civ. App. 110, 82 S.W. 1060; Williams v. Nashville, 89 Tenn. 487, 15 S.W. 364.

It is not necessary to consider and determine the precise question presented and argued. The scope and meaning of the words "in session" are of incidental importance only. The underlying question is deeper and of far more importance, and does not depend upon a technical construction to be given to the words "in session." The real question is whether the presiding officer of either house of the Legislature possesses, under the constitution, any power or authority to issue a writ of election to fill a vacancy in the absence of an order or direction of the house requiring him so to do, or, as here, in despite of a determination by the senate that no vacancy exists. If the presiding officer has no such power and authority it is apparent that the first sentence of the section does not require a construction which would necessitate the interpolation of a phrase such as, "being in session."

The principle of construction is that, to ascertain the true intent and meaning of any particular provision of a constitution, it is the duty of the court to consider the whole instrument. 6 R. C. L. 47. Section 6, Art. 2, having to do with the filling of vacancies in the houses of the Legislature, must be read in connection with the first clause of Section 8 of the same article, providing that "each House shall be the judge of the elections, returns and qualifications of its own members."

It is essential that there should exist somewhere the power to take the necessary steps to fill vacancies occurring in a legislative body. In England the House of Commons has always regarded the right of determining upon the existence of vacancies among its members and of taking measures to fill them, as essential to its free and independent existence. When the House of Commons, acting in its judicial capacity, instituting a previous inquiry where the law or fact is doubtful, but proceeding at once if no question is raised as to either, has determined that a vacancy exists, the Speaker, by order of the House, sends his warrant to the Clerk of the Crown in Chancery directing an election. This mode of proceeding cannot, of course, take place at any other time than during a session. When vacancies occur during a recess, the Speaker is authorized by statute 24 Geo. III, Ch. 26, 1784, to issue his warrant for a new election upon the existence of a vacancy being certified by two of the...