State ex rel. Craven v. Shaw

Decision Date17 October 1956
Docket NumberD,No. 524,524
Citation50 Del. 193,126 A.2d 542,11 Terry 193
Parties, 50 Del. 193 The STATE of Delaware, upon the relation of Joseph Donald CRAVEN, Attorney General, Plaintiff, v. Benjamin F. SHAW, II, J. Gordon Smith, Francis Gebhart, Thurman Adams, Carey Sapp, purporting to constitute the State Highway Department of the State of Delaware, and Robert D. Thompson, Edward Kelly, Thurman Adams, Samuel J. Fox and Benjamin Ableman, purporting to be members of the State Highway Department of the State of Delaware as allegedly created by Senate Billefendants. The STATE of Delaware, upon the relation of Joseph Donald CRAVEN, Attorney General, Plaintiff, v. John M. CONWAY, Brinton T. Holloway, I. Leroy Smith, Burton S. Heal and J. Edward Truitt, purporting to constitute The Delaware Alcoholic Beverage Control Commission, Defendants. The STATE of Delaware, upon the relation of Joseph Donald CRAVEN, Attorney General, Plaintiff, v. Sigmund SCHORR, Fred Heinold, Carl J. Scott, Leslie Ford, Woodrow Wilson Stanley, William McClafferty, Martin Devine, Joseph Grabowski, Oscar Sewel, William Savery, George Sylvester, purporting to constitute the Department of Elections for New Castle County, Defendants.
CourtDelaware Superior Court

Page 554

E. N. Carpenter, II, Januar D. Bove, Jr. and Clarence W. Taylor, Wilmington, for plaintiff.

S. Samuel Arsht, Wilmington, and James M. Tunnell, Jr., Georgetown, for the appearing defendants in The Highway Department case.

George Gray Thouron, Wilmington, for the defendants in The Liquor Commission case.

Ernest S. Wilson, Jr., Wilmington, for the appearing defendants in The Election Department case.

HERRMANN, Judge.

These three quo warranto proceedings have been instituted to try the title of the defendants to certain public offices. Their title to office is challenged on the ground that the Statutes by which they were appointed are unconstitutional and invalid.

The case of State ex rel. Craven, Atty. Gen. v. Shaw, is intended to test the title of the defendants named therein to office as members of the State Highway Department to which they were appointed by Ch. 548 of 50 Laws of Delaware, 17 Del.C. §§ 111, 114, 116, 118, 151. The case of State ex rel. Craven, Atty. Gen. v. Conway, was instituted to test the title of the defendants named therein to office as members of the Delaware Alcoholic Beverage Control Commission to which they were appointed by Ch. 547 of 50 Laws of Delaware, 4 Del.C. §§ 301, 304. The case of State ex rel. Craven, Atty. Gen. v. Schorr, was brought to test the title of the defendants named therein to office as members of the Department of Elections for New Castle County to which they were appointed by Ch. 545 of 50 Laws of Delaware, 15 Del.C. §§ 103, 109.

Since these are quo warranto proceedings to try title to public office, they are brought in the name of the Attorney General who must institute all such actions on behalf of the State. See Marshall v. Hill, 8 Terry 478, 93 A.2d 524. The Attorney General is being represented in these proceedings by the attorneys for other members of the agencies involved who are not rival claimants for the offices claimed by the defendants and whose right to office is not being challenged. These proceedings were instituted upon the basis of allegations of the following persons who are referred to in the pleadings as relators:

In the Highway Department Case: Hugh R. Sharp, Jr., J. Draper Brown, Jr., Frank R. Grier and William P. Richardson.

In the Liquor Commission Case: George J. Schulz.

In the Election Department Case: Wayne C. Brewer, Robert A. Groves, Ambrose McAlevy, Leon H. Ryan, Harry E. Vincent, Robert L. Meli and Hannah S. Buckley.

Because of the common questions of law raised in these three cases, they were consolidated for briefing, argument and decision. The matters are before the Court on cross-motions for summary judgment and upon the defendants' motions to strike certain portions of the pleadings and affidavits. 1 The motions for summary judgment are based upon the pleadings and affidavits.

For the most part, the issues and the contentions of the parties are substantially the same in all three cases. Because of certain differences, however, each case will be discussed separately in the interest of clarity.

I.

The Highway Department Case.

In this case, the validity and constitutionality of Ch. 548 of Vol. 50 Laws of Delaware are challenged. By that Statute, the membership of the State Highway Department was raised from seven to twelve. The seven members who were in office on June 8, 1955 2 were continued in office until the expiration of their terms and the five new members were named in the Statute by the Legislature. It was also specified that upon the expiration of the term of any member the Governor, by and with the consent of a majority of the Senate, would appoint a successor for a term of six years, no such appointment being 'complete or effective unless and until the nominee has been confirmed by the Senate.' It was also provided that in case of a vacancy for any reason other than expiration of term of office, the remaining members of the Department would fill such vacancy.

The validity of Ch. 548 is challenged upon several grounds:

1. Colorable Legislation

It is asserted that Ch. 548 should be set aside as being void because it is 'colorable' legislation, i. e., because it was motivated in bad faith by partisan political considerations on the part of certain members of the Legislature whose only purpose was to gain control of the State Highway Department for their party.

The affidavits filed in support of this contention will be stricken as being immaterial and irrelevant because, under the established law of this State, it is beyond the province of this Court to inquire into either legislative motive or legislative wisdom.

The power of our General Assembly 'is as broad and ample in its omnipotence as sovereignty itself, except in so far as it may be curtailed by constitutional restrictions express or necessarily implied.' Collison v. State ex rel. Green, 9 W.W.Harr. 460, 468, 2 A.2d 97, 100, 119 A.L.R. 1422. Thus, the Statute here involved must be held valid unless it is found to violate some constitutional restriction. There is no constitutional limitation governing legislative motive or legislative wisdom. Statutes otherwise valid and constitutional are not rendered invalid and unconstitutional by reason of the fact that legislators, voting for the passage thereof, have been influenced by political considerations.

On this subject, this Court has stated in State v. Grier, 4 Boyce 322, 88 A. 579, 582:

'* * * Indeed, we have no discretion, and but one duty, which is to declare the law as we understand it. We do not make the law and have no power or right to unmake it if it was constitutionally enacted. Under our system of government the Legislature is the sole judge of what are proper subjects of legislation, subject only to constitutional limitations; and the necessity and wisdom of any particular act cannot be reviewed by the court--it is exclusively for the law-making body to decide.

'What we desire to make plain is this: That the court in passing upon the validity of a statute has no discretion at all; it cannot say whether it was wise or unwise, necessary or unnecessary, proper or improper. With the wisdom, necessity or propriety of legislation we can have nothing whatever to do under our judicial oaths. The power or authority of the Legislature to pass the statute is the only question for the consideration of the court; and if the power is found to exist under the law, it absolutely controls the court. * * *'

Similarly, in State ex rel. McVey v. Burris, 4 Pennewill 3, 49 A. 930, 931, involving a statute which abolished the office of state detective and recreated that office for another incumbent, this Court sitting in banc declared:

'* * * There is no evidence in this case that there was any lack of bona fides on the part of the legislature in passing these acts. The presumption of law is in favor of good faith. Even if there was a lack of bona fides on the part of the members of the legislature, what right would this court have to pass upon that subject, if what the legislature did was within its power? Whether it acted in good faith and for the best interests of the public is entirely between the members and their constituents, so long as they confine themselves within the limits of their authority. It is no function of this court to pass upon the motives of the legislature in the discharge of their duty. The legislature of each state represents the sovereignty of the people, and it may pass any laws not inconsistent with the constitution of this state or of the United States. It is well settled that offices created by the legislature are entirely within legislative control; that the gift of such an office is not a contract. Unless there be some constitutional limitation, such offices may be modified, abridged, or abolished as the legislature may see fit. * * *'

In Collison v. State ex rel. Green, 9 W.W.Harr. 460, 2 A.2d 97, 108, 119 A.L.R. 1422, which involved the removal and replacement by the Governor of all of the members of the State Industrial Accident Board under statutory authorization, the Delaware Supreme Court stated:

'We are aware that in the judgment of many persons it is highly unwise for the legislature to create offices with an indefiniteness of tenure. We are not unsympathetic with that view. But it is the province of the legislature and not of the courts to pass upon matters of policy. The legislative hand is free except as the constitution restrains; and courts are bound by a most solemn sense of responsibility to sustain the legislative will in the appropriate field of its exercise, even though in the opinion of the judges as individuals the legislature had acted in an unwise manner.'

The authorities cited...

To continue reading

Request your trial
9 cases
  • State ex rel. Gebelein v. Killen
    • United States
    • United States State Supreme Court of Delaware
    • November 15, 1982
    ...and statutory provisions pertaining to the right to fill that office remains ripe for decision. Compare State ex rel. Craven v. Shaw, Del.Super., 126 A.2d 542, 552 (1956), aff'd sub nom. State ex rel. Craven v. Schorr, Del.Supr., 131 A.2d 158, 164 VI. Defendant's Right to Office The First Q......
  • Downs v. Jacobs
    • United States
    • United States State Supreme Court of Delaware
    • December 4, 1970
    ... ... Leon JACOBS, a Constable of the State of Delaware, and Page, ... Incorporated, a Delaware corporation, ... Collison v. State ex rel. Green, Del.Supr., 9 W.W.Harr. 460, 2 A.2d 97 (1938); State v. Brown, ... v. Shaw, Del.Supr., 41 Del.Ch. 399, 196 A.2d 734 (1963). The landlord and the ... Tatnall, Del.Supr., 2 Terry 273, 21 A.2d 185 (1941); State ex rel. Craven v. Schorr, Del.Supr., 11 Terry 193, 131 A.2d 158 (1957). We consider that ... ...
  • State ex rel. Tate v. Cubbage
    • United States
    • Delaware Superior Court
    • May 7, 1965
    ...of its practically unlimited constitutional power and discretion, 1897 Const. Art. II, § 1, Del.C.Ann.; State ex rel. Craven v. Shaw, 11 Terry 193, 199, 126 A.2d 542, 546 (Super.Ct.1956) aff'd. 11 Terry 365, 370, 131 A.2d 158, 161 (Sup.Ct.1957), to enact legislation, see pages 555, 556, sup......
  • Martin v. Star Pub. Co.
    • United States
    • United States State Supreme Court of Delaware
    • October 25, 1956
    ... ... STAR PUBLISHING COMPANY, a corporation of the State of ... Delaware, Appellee ... Supreme Court of Delaware ... Oct. 25, ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT