State v. Collison

• Decision Date: 16 February 1938
• Citation: 197 A. 836,39 Del. 245
• Court: Delaware Superior Court
• Parties: THE STATE OF DELAWARE, ex rel. Percy Warren Green, Attorney-General, v. NORMAN COLLISON, JAMES H. LATCHUM and CLARENCE E. GRACE

197 A. 836

39 Del. 245

THE STATE OF DELAWARE, ex rel. Percy Warren Green, Attorney-General, v. NORMAN COLLISON, JAMES H. LATCHUM and CLARENCE E. GRACE

Superior Court of Delaware, New Castle County

February 16, 1938

[Copyrighted Material Omitted]

Superior Court for New Castle County, No. 267, September Term, 1937. Quo Warranto. Case stated.

Section 6093 of the Revised Code of 1935, Rev. Code 1915, § 3193w, Section 116, c. 233, Vol. 29, Del. Laws, as amended cited as The Delaware Workmen's Compensation Law of 1917 is, in part, as follows:

"The Governor shall, within thirty days after the approval of this Article by the Governor, appoint three competent persons to be known as the 'Industrial Accident Board,' which Board shall have jurisdiction of all cases arising under the compensation schedule of this Article. Such appointments shall originally be as follows: One member shall be appointed for the term of two years, another for the term of four years, and another for the term of six years. Thereafter, as the terms of office of members expire, either by death, resignation, removal from the State, or otherwise, appointments shall be made for terms of six years each.

"Each person appointed under the provisions of this Section shall hold office until his successor is appointed and qualified. The Governor may remove any member of said Board with or without cause. Each member, before entering upon the duties of his office, shall take the Constitutional oath required of State officers."

On the respective dates, December 31, 1933, November 9, 1935, and December 2, 1935, the Honorable C. Douglas Buck, then Governor, appointed Robert K Jones, Harry V. Lyons and Charles H. Grantland, to be members of the board, each for the term of six years, subject to confirmation by the Senate.

Commissions were issued to the appointees for six year terms, and each of them was duly confirmed by the Senate. The appointees took the required oath of office and entered upon the discharge of their duties.

In 1937, the Honorable Richard C. McMullen, Governor, requested the resignations of the three members of the board, and, upon their refusal to resign, he, on the respective dates, June 15, 1937, July 12, 1937 and August 17, 1937, addressed to Harry V. Lyons, Robert K. Jones and Charles H. Grantland a notice of removal from the offices, effective immediately.

The members had not been convicted of misbehavior in office, or of any infamous crime, and no reasons were assigned by the Governor for the removals.

On June 22, 1937, subsequent to the removal of Harry V. Lyons, the Governor appointed Norman Collison to be a member of the board, by granting him a commission bearing the above date; on July 12, 1937, subsequent to the removal of Robert K. Jones, the Governor appointed James H. Latchum to be a member of the board, by granting him a commission bearing the last-mentioned date; and on August 17, 1937, subsequent to the removal of Charles H. Grantland, the Governor appointed Clarence E. Grace to be a member of the board, by granting him a commission bearing the last-mentioned date.

The appointments were made during a recess of the Senate. Each of the appointees took the required oath of office, and they organized by choosing James H. Latchum as president, and appointed John C. Saylor as secretary. The Senate has not been in session and the names of the respondents have not been submitted to the Senate for confirmation.

It is agreed that the appointees, since their appointment, have acted as the Industrial Accident Board, and that, if the court shall be of opinion that they are usurping the offices, judgment of ouster shall be entered against each of them, otherwise that judgment be entered against the complainant and in favor of the respondents.

Section 6, Article 15, of the Constitution is as follows: "All public officers shall hold their offices on condition that they behave themselves well. The Governor shall remove from office any public officer convicted of misbehavior in office or of any infamous crime."

Section 13, Article 3, of the Constitution is as follows: "The Governor may for any reasonable cause remove any officer, except the Lieutenant-Governor and members of the General Assembly, upon the address of two-thirds of all the members elected to each House of the General Assembly. Whenever the General Assembly shall so address the Governor, the cause of removal shall be entered on the journals of each House. The person against whom the General Assembly may be about to proceed shall receive notice thereof, accompanied with the cause alleged for his removal, at least ten days before the day on which either House of the General Assembly shall act thereon."

Section 2, Article 6, of the Constitution, is, in part, as follows: "The Governor and all other civil officers under this State shall be liable to impeachment for treason, bribery, or any high crime or misdemeanor in office. Judgment in such cases shall not extend further than to removal from office."

Judgment of ouster entered against each of the respondents; and ordered.

P. Warren Green, Attorney-General, James R. Morford and H. Albert Young for relator.

Hugh M. Morris, S. Samuel Arsht, and James M Tunnell for respondents, Norman Collison and James H. Latchum.

Josiah Marvel, Jr., and E. Ennalls Berl for respondent, Clarence E. Grace.

LAYTON, C. J., RODNEY and SPEAKMAN, J. J., sitting.

OPINION

LAYTON, C. J. delivering the opinion of the majority of the court:

Two questions are presented for determination: One, the constitutional question whether there is a limitation on the legislative power with respect to removals from public offices created by statute; the other, a question of statutory construction.

It is agreed that a State Constitution operates not as a grant of power to the Legislature, but as a limitation of power; that all power, which is not limited by the Constitution, inheres in the people who declare their will through the Legislature. Accordingly, an unlimited power is vested in the Legislature of a state to enact all such laws as it may consider necessary and proper, except where limitations have been imposed by the Federal or State Constitutions.

The power of the Legislature may be restrained by express limitation, or by restrictions impliedly imposed; and restrictions in a Constitution with respect to legislative power are equally effective whether they arise by implication, or are stated in express terms. Such restrictions may be found either in the language employed, or in the evident purpose which was in view and the circumstances and historical events which led to the enactment of the particular provision as a part of the organic law. State v. Fox, 158 Ind. 126, 63 N.E. 19, 56 L. R. A. 893; Page v. Allen, 58 Pa. 338, 98 Am. Dec. 272; 11 Am. Jur. 898; Rathbone v. Wirth, 150 N.Y. 459, 45 N.E. 15, 34 L. R. A. 408, opinion of O'Brien, J.

Having in mind this fundamental principle, it is to be determined whether the several provisions of the Constitution of this state relative to removals of public officers from office, operate as a limitation on the legislative power to enact laws authorizing removals outside of the purview of the constitutional provisions. Before the Revolution, an unlimited power of removal from office by the executives of the colonial governments was considered a great evil from which the colonists had suffered. In the charter of Delaware in 1701, the freemen of the respective counties were empowered to "chuse a double Number of Persons to present to the Governor for Sheriffs and Coroners, to serve for Three Years, if so long they behave themselves well." In 1724, Mrs Hannah Penn, in her instructions to Sir William Keith, Governor of Pennsyvania, protested against his dismissal of the secretary without seeking the advice of his council. In New Hampshire, the later commissions of government were accompanied with instructions requiring either that removals from office be made only upon good and sufficient cause, or upon cause signified to the home government in the fullest and most distinct manner. In Virginia, similar instructions accompanied the issuance of commissions to Governor Howard in 1683, and to Governor Dunmore in 1771. Mr. Justice Brandeis, in his dissenting opinion in Myers v. U. S., 272 U.S. 52, 47 S.Ct. 21, 84, 71 L.Ed. 160, makes the assertion that an uncontrollable power of removable in the Chief Executive "had been denied in the thirteen states before the framing of the federal Constitution," and that, "The doctrine of the separation of powers was adopted by the convention of 1787 not to promote efficiency but to preclude the exercise of arbitrary power."

We, therefore, are prepared to find that the first constitution of 1776 provided that the public officers, both State and County, appointed by the president and privy council, should be commissioned and remain in office during five years if they should behave themselves well; that upon impeachment, if found guilty of "maladministration, corruption, or other means, by which the safety of the Commonwealth may be endangered," a permissible penalty was removal from office pro tempore; and that, "all officers shall be removed on conviction of misbehavior at common law, or on impeachment, or upon the address of the general assembly." Const. 1776, Art. 23.

Some of the able members of the convention that framed the Constitution of 1792 may be supposed to have had acquaintance with the fierce controversy that raged in the first session of the Federal Congress in 1789 with respect to the power of removal from office by the President. It was during the celebrated debates now to be mentioned that Representative White said that an uncontrollable power of...