State ex rel. Craven v. Schorr, 524

• Decision Date: 11 April 1957
• Docket Number: No. 524,A,524
• Citation: 50 Del. 365,131 A.2d 158,11 Terry 365
• Parties: , 50 Del. 365 The STATE of Delaware, upon the Relation of Joseph Donald CRAVEN, Attorney General, Appellant, v. Sigmund SCHORR, Fred Heinhold, Carl J. Scott, Leslie Ford, Woodrow Wilson Stanley, William McClafferty, Martin Devine, Joseph Grabowski, Oscar Sewell, William Savery, George Sylvester, purporting to constitute the Department of Elections for New Castle County, Appellees. The STATE of Delaware, upon the Relation of Joseph Donald CRAVEN, Attorney General, Appellant, v. John M. CONWAY, Brinton T. Holloway, I. Leroy Smith, Burton S. Heal and J. Edward Truitt, purporting to constitute the Delaware Beverage Control Commission, Appellees. The STATE of Delaware, upon the Relation of Joseph Donald CRAVEN, Attorney General, Appellant, 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 Billppellees.
• Court: Supreme Court of Delaware

Page 158

131 A.2d 158

11 Terry 365, 50 Del. 365

The STATE of Delaware, upon the Relation of Joseph Donald

CRAVEN, Attorney General, Appellant, v. Sigmund SCHORR, Fred Heinhold, Carl J. Scott, Leslie Ford, Woodrow Wilson Stanley, William McClafferty, Martin Devine, Joseph Grabowski, Oscar Sewell, William Savery, George

Sylvester, purporting to constitute the Department of

Elections for New Castle County, Appellees.

The STATE of Delaware, upon the Relation of Joseph Donald

CRAVEN, Attorney General, Appellant, v. John M. CONWAY, Brinton T. Holloway, I. Leroy Smith, Burton

S. Heal and J. Edward Truitt, purporting to

constitute the Delaware Beverage Control

Commission, Appellees.

The STATE of Delaware, upon the Relation of Joseph Donald

CRAVEN, Attorney General, Appellant, 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 Bill No. 524, Appellees.

Supreme Court of Delaware.

April 11, 1957.

Edmund N. Carpenter, II, Januar D. Bove, Jr., Clarence W. Taylor, Wilmington, for appellants.

S. Samuel Arsht, George Gray Thouron, Ernest S. Wilson, Jr., Wilmington, and James M. Tunnell, Jr., Georgetown, for appellees.

SOUTHERLAND, C. J., and WOLCOTT and BRAMHALL, JJ., sitting.

SOUTHERLAND, Chief Justice.

These are three actions of quo warranto to try the title to office of certain members of three State Departments or Commissions--the State Highway Department, the Department of Elections for New Castle County, and the Delaware Liquor Commission.

The attack in all three cases is based upon the contention that the three statutes creating such offices are (in whole or in part) unconstitutional for various reasons.

On cross motions for summary judgment the trial court rejected all of the relator's contentions, sustained the constitutionality of the statutes, granted defendants' motions, and dismissed the actions. Relator appeals.

Although the principal questions of law are common to all three cases, it will be convenient to consider each case separately.

I. The State Highway Department.

This case, like the other two cases, involves two acts of the 1955 General Assembly. We shall call them 'the First Highway Act' and 'the Second Highway Act'.

Prior to June 9, 1955, the State Highway Department ('the old Department') consisted of seven members, appointed by the Governor for fixed terms. See 17 Del.C. § 111, before amendments. On that date the First Highway Act was passed over the Governor's veto. It purported to abolish the existing Department and establish a new State Highway Department ('the first new Department') to which '[a]ll of the powers, duties and property' of the former Department were transferred. The new Department consisted of five members, all of whom were named in the act. See 50 Del.L. c. 268. 17 Del.C. § 111 note. The effect of the act was to legislate out of office certain of the members of the old Department.

This act, as well as the two acts relating to the other departments referred to, were attacked as unconstitutional in proceedings filed in the Superior Court after their enactment. Before a decision was handed down, the General Assembly on December 5, 1955, passed another series of acts relating to the same departments. 50 Del.Laws c. 548, Del.C. §§ 111 and note, 114, 116, 118, 151. The Second Highway Act (1) repealed the act of June 9, 1955, and abolished the first new Department; (2) 'reestablished and continued' the old Department with all of its duties and powers; (3) enlarged the old Department to twelve members; (4) continued in office the members of the old Department until the expiration of their respective terms; and (5) named the five persons to hold the additional newly-created offices for terms expiring on the dates fixed in the act.

This act, under which defendants now claim their offices, is attacked as unconstitutional on various grounds.

(1) Colorable Legislation. It is asserted that the act was not passed for the bona fide purpose of reorganizing the Department, but for political purposes only, i.e., to wrest control of the Department from the Republican Party, and confer control upon the Democratic Party; that such an act is an exercise of arbitrary power and is void.

But where is there to be found in our constitution any prohibition against the pssage of legislation for political motives? Relator's argument ignores the fundamental principle that 'absent a constitutional inhibition, the power of the legislature as the repository of the legislative power with its broad and ample sweep, has full and unrestrained authority to exercise its discretion in any manner it sees fit in its wisdom or even folly to adopt'. Collison v. State ex rel. Green, 39 Del. 460, 2 A.2d 97, 101.

There is no provision in our Constitution that prevents a political party dominating the General Assembly from passing legislation for political motives. It may certainly be doubted that such a provision exists in any State. And no court may properly inquire into such a matter for the members of the General Assembly are responsible in this respect to their constituents only--not to the courts. For abuses of political power by the legislature acting within its authority, the only redress is action at the polls. Our courts have repeatedly said so. See State ex rel. McVey v. Burris, 4 Pennewill 3, 49 A. 930; State v. Grier, 4 Boyce 322, 88 A. 579; Collison v. State, supra.

For us to undertake the task of pronouncing a moral judgment upon the motives of members of the General Assembly in enacting legislation would be a presumptuous assertion of a power that we do not possess.

To relator's denunciation of this act as 'ripper legislation', the answer of the Court must be, as was said in the Collison case, that we are fully aware that in the judgment of many persons such legislation is highly unwise.

'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.' Per Wolcott, Chancellor, in Collison v. State ex rel. Green, 39 Del. 486, 2 A.2d 97, 119 A.L.R. 1422.

In support of his argument that this legislation is void because 'colorable', relator cites many authorities dealing with attempts to legislate persons out of office by the device of abolishing the office, recreating it, and conferring its powers upon another person. See 67 C.J.S., Officers, § 10, p. 122; and cases collected in the note at 172 A.L.R. 1366ff. It may be conceded at once that the legislature may not, by such a device, circumvent a constitutional prohibition protecting an officer from arbitrary removal. As we shall see later, this is a valid criticism of the first series of acts in these cases. But the Second Highway Act, re-establishing the old Department does not seek to abolish any office or to legislate anyone out of office.

We are of opinion that the act is not void as 'colorable legislation'.

(2) Defective Title. It is said that the title of the Second Highway Act fails to comply with the constitutional requirement that no bill shall embrace more than one subject which shall be expressed in its title. Art. II, § 16, Del.C.Ann.Const.

The title is as follows:

'An act pertaining to the State Highway Department and providing for its reorganization, composition and membership, for the ratification of the acts of the State Highway Department created by Chapter 268 of Volume 50 Laws of Delaware, repealing said Chapter 268 of Volume 50 Laws of Delaware and abolishing the offices therein created, and amending Chapter 1 of Title 17 of the Delaware Code'.

It is said that the title does not disclose (a) that specified individuals are appointed to membership in the Department, or (b) that the bill reestablishes and continues the old Highway Department with all its powers and duties. The title gives notice that it concerns the 'reorganization, composition and membership' of the Department. This is sufficient to put any one on notice of the wide scope of the bill. The title need not be an index of the details of the bill, State ex rel. Morford v. Emerson, 40 Del. 328, 344, 10 A.2d 515; Klein v. National Pressure Cooker Co., 31 Del.Ch. 459, 64 A.2d 529, and it is not defective because it does not spell out the two items relator refers to. See Fouracre v. White, 30 Del. 25, 102 A. 186; State ex rel. Morford v. Emerson, 40 Del. 233, 246, 8 A.2d 154.

As for the subject, it is clear that the bill deals with one subject only--the reorganization of the Highway Department.

The Second Highway Act is not invalid under art. II, § 16 of our Constitution.

(3) Legislative Journals. It is said that the act was not validly passed because no legally sufficient legislative journals were kept, in violation of art. III, § 18, of the Delaware Constitution. This section requires that the Governor's objections to a bill be entered at large upon the journal, together with the names of members voting for and against the bill. This was done. The objection is that the journal consists of loose-leaf records, and is not a 'permanent record'. As the court below pointed out, our Constitution does not prescribe any particular form or manner of keeping the journals. Some other method might be thought preferable, but that is a matter for the decision of the respective houses. And it is asserted by defendants, and apparently not denied, that the method in use when the Second Highway Act was passed is the method that...