State v. Emerson

• Decision Date: 09 August 1939
• Court: Delaware Superior Court
• Parties: THE STATE OF DELAWARE, upon the relation of James R. Morford, Attorney-General, v. RALPH W. EMERSON

8 A.2d 154

40 Del. 233

THE STATE OF DELAWARE, upon the relation of James R. Morford, Attorney-General, v. RALPH W. EMERSON

Superior Court of Delaware, New Castle County

August 9, 1939

Superior Court for New Castle County, Quo Warranto, No. 147 May Term, 1939.

An agreed statement of facts was filed in the above case as well as in two companion cases, Nos. 148 and 149, May T. 1939 wherein Charles D. Abbott and Donald P. Ross were the defendants.

Insofar as material to the understanding of the following opinion the agreed statement of facts sets out the following:

1. That the relator is the Attorney General of the State.

2. That by Act of April 2, 1917 (Chap. 63, Vol. 29, Laws of Delaware) the State Highway Department was created and that there have been many amendments to the original Act.

3. That on March 1, 1939, the Highway Department consisted of the Governor and the following persons, with the dates of their appointment, which said persons had been all duly qualified and were acting as such members, and as to which said members there had been no disqualifications:

J. Henry Hazel

Appointed May 2, 1931

Charles W. Cullen

Appointed May 2, 1933

Frank V. duPont

Appointed May 2, 1935

Andrew F. Fader

Appointed May 2, 1937

[It was provided by Sec. 5721, Chapter 166, Revised Code of 1935, that the State Highway Department should consist of the Governor and four other members appointed by him for full terms of eight years each; that no more than two of said appointed members should be of the same political party; that three of the members should constitute a quorum. Such was the law on March 1, 1939.]

4. That on March 15, 1939, there was introduced in the Senate of the General Assembly, Senate Substitute for Senate Bill No. 224 entitled "An Act to Amend Chapter 166 of Revised Code of Delaware, 1935, providing for Reorganization of the State Highway Department by increasing the membership thereof" [which said bill was made a part of the agreed statement of facts]; that said Bill was declared to have received the required vote of each House and was presented to the Governor; that the Governor returned the Bill to the Senate without his approval and with his objections thereto in writing; that subsequently the Bill was declared to have received the constitutional vote notwithstanding the Governor's objections and lack of approval, and delivered to the Secretary of State [there then follows facts and contentions regarding the number of votes required on repassage and the offer and objection to the presentation of the Journals of each House as indicative of the votes received. These are not material in view of the conclusion reached.]

[The amendatory act eliminated the Governor as a member of the Highway Department; named Ralph W. Emerson, Charles D. Abbott and Donald P. Ross as additional members of the Highway Department, and changed the terms of all future members of the Department.]

5. The agreed statement then shows that Mr. duPont (an old member of the Board), together with Emerson, Abbott and Ross, the newly appointed members, met, qualified, and selected a chairman and secretary, and purport to act as the Highway Department, as constituted by the Amendatory Act.

6. The agreed statement then provides that if the Court shall be of the opinion that the Amendatory Act (Senate substitute for Senate Bill No. 224) was not enacted in accordance with the provisions of the Constitution and is therefore unconstitutional, that judgment of ouster shall be entered in favor of the relator and against each of the defendants. Otherwise, judgment shall be entered for the defendants for their costs.

The Relator contends:

1. That the Legislature had no power to name the members of the State Highway Department in the Bill but that such appointments must be made by the Governor.

2. That the Amendatory Act is unconstitutional in that it violates Art. II, Sec. 16 of the Constitution of 1897, which provides: "No bill or joint resolution, except bills appropriating money for public purposes, shall embrace more than one subject, which shall be expressed in its title."

3. That the Amendatory Act did not receive the constitutional number of votes.

Judgment of ouster entered in favor of the Relator and against Ralph W. Emerson, the defendant.

Stewart Lynch for Relator.

P. Warren Green and Henry M. Canby for defendant.

RODNEY and SPEAKMAN, J. J., sitting.

OPINION

RODNEY, J.

In the consideration of this case the questions will be considered in the order as suggested in the statement of facts because it seems logical to consider in their proper order (1) the power of the Legislature to take the action which has been objected to, viz.: the naming in the Act of Assembly of the additional members of the State Highway Department; (2) whether, in said action, the Legislature has used an apt and constitutional title for the Act of Assembly, and (3) whether the Act of Assembly received the number of votes required by the Constitution.

The answers to these questions and consideration of all pertinent authorities might well extend this discussion indefinitely. We shall content ourselves with such presentation as will clearly express the views we hold and yet keep this opinion within reasonable limits.

Much space has been devoted to the discussion of the philosophy of government involved in the division into three cardinal branches, the Legislative, the Executive, and the Judicial. With this philosophy we are in entire accord. The acceptance of the doctrine, however, is primarily a matter of constitutional regulation. When the people of a State meet in convention to form a Constitution it is for them to say in what manner the powers of government shall be divided. It is then that the division of powers should be weighed and decided. There are no inherent rights appertaining to any branch of government which may not be altered by the Constitution. Thus no power would seem more inherent in the legislative branch than the power to enact legislation. Three Constitutions of Delaware (1776, 1792 and 1831) gave this power, unhampered, to the legislative branch, but the fourth (1897) provided for submission of every Act to the Governor, and established the right to veto, thus giving to the executive a large share of the power theretofore purely legislative. So it is in the power of appointments. There is no inherent right in the Executive to make appointments which the Constitution may not alter or remove entirely, and these periodic changes have been evidenced by the Constitution of every state. Let us, therefore, but briefly trace the provisions concerning appointments to office through the various Constitutions of this State.

The first Constitution of 1776 was framed pursuant to a resolution of the Continental Congress to remedy the chaotic conditions caused by the Declaration of Independence from Great Britain and the natural severence of all former governmental ties. In this first Constitution little heed was paid to the philosophy of division of government into the three branches now so widely recognized. By it the Governor (then called President of the State) was elected by the Legislature, and the President and Legislature together selected the judiciary. In the solution of the present question but little help may be gathered from the Constitution of 1776.

The second Constitution of 1792 came into being after the Federal Constitution of 1787 and formed a model utilized by sister states. By these the philosophy of divisions of powers had reached its full fruition and "checks and balances" had become a trite expression of such desirable division. The Constitution of 1792 gave plenary legislative power to the General Assembly, and the approval of the Governor was not required as to legislation, and there was no veto power. It gave to the Governor full and uncontrolled power of appointments in the following language of Art. III, Sec. 8: "He shall appoint all officers whose offices are established by this constitution, or shall be established by law, and whose appointments are not herein otherwise provided for."

It will thus be seen that except where the manner of appointment was provided by the Constitution of 1792, the Governor was given the power of appointment of offices created or recognized by the Constitution as well as those which might thereafter be created by law. An example falling within the exception is furnished by Sec. 3 of Article 8, whereby the State Treasurer, a constitutional officer, was elected by the House of Representatives, with the concurrence of the Senate. Other examples showing a limitation on the appointing power of the Governor and providing for statutory appointments, are found in Sec. 6, Article VIII, which provided: "Attorneys at law, all inferior officers of the treasury department, election officers, officers relating to taxes, to the poor, and to highways, constables and hundred officers, shall be appointed in such manner as is or shall be directed by law."

The Constitution of 1831 retained in substantial entirety the appointing power of the Governor as theretofore existing, and we may thus pass directly to the provisions of the present Constitution of 1897.

The Constitution of 1897 made certain important and far reaching changes. Not only did it limit, as we have indicated, the exclusive power of the General Assembly over legislation by giving to the Executive a measure of supervision and approval, together with the veto power, but it entirely changed and rewrote the provisions as to appointments to office. The power of appointments by the Governor was thus expressed: "He [the Governor] shall have power, unless herein otherwise provided, to appoint, by and with the consent...