State ex rel. James v. Schorr

• Citation: 45 Del. 18,65 A.2d 810
• Court: United States State Supreme Court of Delaware
• Decision Date: 01 September 1948
• Parties: THE STATE OF DELAWARE, Upon the relation of ALBERT W. JAMES, Attorney-General, Relator Below, Plaintiff in Error, v. SIGMUND SCHORR, LEROY F. HAWKE, JOHN F. NEWELL, THOMAS COOCH, LELAND WILDS, LEON H. RYON, WILLIAM K. PENNINGTON, JAMES E. BROWN, JAMES L. BROWN, JOHN W. FOREMAN and WALTER G. TATNALL, Respondents Below, Defendants in Error

65 A.2d 810

45 Del. 18

THE STATE OF DELAWARE, Upon the relation of ALBERT W. JAMES, Attorney-General, Relator Below, Plaintiff in Error, v. SIGMUND SCHORR, LEROY F. HAWKE, JOHN F. NEWELL, THOMAS COOCH, LELAND WILDS, LEON H. RYON, WILLIAM K. PENNINGTON, JAMES E. BROWN, JAMES L. BROWN, JOHN W. FOREMAN and WALTER G. TATNALL, Respondents Below, Defendants in Error

Supreme Court of Delaware

September 1, 1948

On Reargument April 11, 1949.

Writ of Error to the Superior Court in and for New Castle County.

Quo Warranto.

Quo warranto proceeding by the State of Delaware, on the relation of Albert W. James, Attorney General, relator, against Sigmund Schorr and others, members of the Department of Elections Board, New Castle County. To review an adverse decision of the superior court, 58 A.2d 421, the relator brings error.

Decision reversed.

HARRINGTON, Chancellor, and TERRY, J., dissenting.

No. 8 February Sessions, 1948.

In 1947 the Legislature passed an Act, c. 182, amending chapter 57 of the Code of 1935, as amended, and providing for a Department of Elections for New Castle County. Said Act sets forth that on the 15th day of April, 1947, the Governor shall appoint a Department of Elections for New Castle County to consist of eleven members; the five members of said Department of Elections are to be nominated by the State Chairman of one of the two leading political parties, that five members of said Department of Elections are to be nominated by the State Chairman of the other of the two leading political parties, and one member of said Department of Elections is to be nominated by the Governor. Said Act further provides, that there shall never be more than six members of said Department of Elections of any one political party; that when any member ceases to be a member of said Department of Elections, due to death, resignation, or any cause other than the expiration of a full term, a nomination shall be made to fill the vacancy by the same authority which made the original nomination, which nominee shall be appointed by the Governor for the residue of the term.

Section four of said Act expressly provides, that all the members of the Department of Elections and all employees thereof prior to the effective date of the Act, (being April 15, 1947) shall continue to be members and employees thereof, respectively, until the members of the Department of Elections provided for in section three of the Act, (consisting of eleven members) shall be appointed and qualified and organized as such.

The petition filed in the Superior Court alleges that the eleven members of the Department of Elections provided for in the Act which became effective on April 15, 1947, have been nominated, appointed and qualified, have organized as the Department of Elections for New Castle County, and are now exercising the rights, duties and powers as members of said Department of Elections.

Said petition further alleges that the members of the Department of Elections for New Castle County, in office prior to the appointment of the eleven members provided for in said Act which became effective on April 15, 1947, claim and contend that they have been unlawfully and unconstitutionally ousted from office, and that the said Act providing for the appointment of eleven members which became effective on April 15, 1947, is invalid and unconstitutional in the following respects:

That it deprives the Governor of the power of appointing to office the members of the Department of Elections.

That it authorizes persons outside of the framework of the government of this State, to nominate ten of the eleven members of the Department of Elections whom the Governor must automatically appoint to said offices.

That the title to the Act does not comply with the provisions of section 16, of Article 2, of the Constitution, which requires that the subject of an Act shall be expressed in the title.

The Court below held that the provisions of the Constitution had not been violated and that the Act was valid.

The assignments of error which are three in number, all raise the question of the constitutionality of the Act, and assert that the Court below erred in holding it constitutional.

HARRINGTON, Chancellor, RICHARDS, Chief Justice, TERRY, CAREY and LAYTON, Judges.

Joseph A. L. Errigo and P. Warren Green for Relator Below, Plaintiff in Error.

Daniel F. Wolcott and James L. Latchum for Respondents Below, Defendants in Error, Sigmund Schorr, Leroy F. Hawke, John F. Newell, Thomas Cooch and Leland Wilds.

Henry A. Wise, Jr., for Respondents Below, Defendants in Error, Leon H. Ryon, William K. Pennington, James E. Brown, James L. Brown, John W. Foreman and Walter G. Tatnall.

HARRINGTON, Chancellor, RICHARDS, Chief Justice, TERRY, CAREY and LAYTON, J. J.

OPINION

RICHARDS, Chief Justice.

This Court is called upon to determine two questions, first, whether the subject of the Act is expressed in the title, and second, whether the Legislature can delegate the power of appointment as members of the Department of Elections for New Castle County to an agency which is not a part of the State Government as outlined by the Constitution.

We will give our attention to the second question first.

Our National Constitution, ordained and established in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defence, promote the general welfare and secure the blessings of liberty to ourselves and our posterity, imposed the sovereign power of government in three separate and distinct branches, the legislative branch, the executive branch, and the judicial branch.

The Government of the United States, being one of enumerated powers, it is necessary to look to these different branches of government in order to determine what these powers are. Cooley's Constitutional Limitations, 8 Ed. Vol. 1, 11.

Our State Constitution, which like most state constitutions is patterned after the National Constitution, is not a grant of power but is a limitation upon the powers which the State inherently possesses. It therefore follows that the Legislature has an unlimited power to enact any laws that it may consider necessary, except where the National or State Constitutions have placed limitations upon it.

Rice v. Foster, 4 Del. 479, 4 Harr. 479; Collison v. State, 39 Del. 460, 9 W. W. Harr. 460, 468, 2 A.2d 97, 119 A.L.R. 1422; State ex rel. Morford v. Emerson, 40 Del. 328, 1 Terry 328, 345, 10 A.2d 515; affirmed, 40 Del. 496, 1 Terry 496, 14 A.2d 378.

Following the pattern of the National Constitution, our State Constitution also confers the sovereign powers of government on three separate branches, the legislative branch, the executive branch and the judicial branch. The legislative power of the State is vested in the General Assembly consisting of the Senate and House of Representatives which is the law making body of the State. Constitution, Article 2.

The Supreme executive power of the State is vested in the Governor whose duty it is to see that the laws are faithfully executed. Constitution Article 3. His duties include the power of appointing to office, by and with a majority of all the members elected to the Senate, such officers as he is authorized by the constitution or by law to appoint. The Governor is the only officer provided for by the Constitution upon whom it confers the power of appointment.

The Judiciary Power of the State is vested in the various courts provided for by the Constitution and such other courts as the General Assembly, with the concurrence of two-thirds of the members to each House, shall from time to time by law establish.

It seems clear that the Constitution imposes all the powers of government, including the power to appoint to office, upon the three separate and independent branches of government above referred to. No recognition is made of any agency, association, commission or committee which is not included in one of these three branches of government or provided for thereby.

In the case of State ex rel. Morford v. Emerson, 40 Del. 233, 1 Terry 233, 8 A.2d 154, 158, the Court said, "We see nothing in the Constitution which prevents the Legislature from creating a statutory Commission or Board and naming the members thereof. If that were true, then we see no reason why an existing statutory Board may not be amended by increasing the membership, such new members being designated in the Amendatory Act."

But that is not what occurred in this case. The Legislature passed an Act amending the act providing for a Department of Elections for New Castle County, by increasing the membership from nine to eleven, five of whom are to be nominated by the State Chairman of one of the two leading political parties, five of whom are to be nominated by the State Chairman of the other of the two leading political parties, one of whom is to be nominated by the Governor and all of whom are to be appointed by the Governor.

The Governor has no discretion with respect to the five members who are nominated by the State Chairman of one of the two leading political parties, or the five members who are nominated by the State Chairman of the other of the two leading political parties, he is required to appoint the persons nominated by said State Chairman of the two leading political parties. By this procedure the Legislature delegated to the State Chairman of the two leading political parties, which are not agencies of the State or connected with the State Government, the right to appoint ten members of the Department of Elections for New Castle County. The distinction between the Emerson case and the case before this Court is clear; in that case the Legislature, which is a branch of the State...