State v. Emerson

• Decision Date: 29 December 1939
• Citation: 40 Del. 328,10 A.2d 515
• Court: Delaware Superior Court
• Parties: THE STATE OF DELAWARE, upon the relation of James R. Morford, Attorney-General, v. RALPH W. EMERSON, DONALD P. ROSS and CHARLES D. ABBOTT

10 A.2d 515

40 Del. 328

THE STATE OF DELAWARE, upon the relation of James R. Morford, Attorney-General, v. RALPH W. EMERSON, DONALD P. ROSS and CHARLES D. ABBOTT

Superior Court of Delaware, New Castle County

December 29, 1939

Superior Court for New Castle County, No. 266, September Term, 1939.

Quo Warranto.

An agreed statement of facts has been filed in this case and insofar as material to an understanding of the following opinion the statement sets out the following facts:

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 prior to August 28, 1939, the State Highway Department consisted of the Governor and the following persons, with the dates of their appointment, which said persons had all been 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 August 27, 1939.]

4. That on August 14, 1939, there was introduced in the Senate of the General Assembly a Bill designated as Senate Substitute for Senate Bill No. 243, entitled "An Act to Amend Chapter 166 of the Revised Code of Delaware, 1935, Providing for Reorganization of the State Highway Department" [which said Bill was made a part of the agreed statement of facts, and is now found as Chapter 173, Vol. 42, Laws of Delaware]; that said Bill was declared to have received the required and constitutional 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 of each House, notwithstanding the Governor's objections, and delivered to the Secretary of State. [There then follows facts and contentions regarding the number of votes in favor of the Bill at the various times of its presentation. The defendants contended that, the Bill having been duly enrolled, the Court could not consider the votes cast for the Bill as shown by the Journals of the two Houses. The Relator denied this contention and held the votes as disclosed by the Journals should be considered by the Court. Subject to the foregoing objections and reservations, copies of the Journals of each House, disclosing the vote for and against the Bill, both on its original passage and upon reconsideration after the Governor's veto, were made a part of the agreed statement of facts. In view of the concessions of the parties and the conclusion herein reached, the exact vote is not here material.]

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

5. That the House of Representatives of Delaware consists of thirty-five members, and the Senate of seventeen members.

6. 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.

7. The agreed statement then provides that if the Court shall be of the opinion that the Amendatory Act (Senate Substitute for Senate Bill No. 243) 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.

From the statement of facts three important questions are presented and require decision:

1. As to whether or not the Act in question when considered as a Bill in the General Assembly received such a number of votes in its favor that it could be legally enacted into law under the Constitution of this State.

2. As to whether or not the Act is invalid because it contains matter of which there is no intimation in its title, contrary to Art. II, Sec. 16 of the Constitution.

3. As to whether or not the Act is invalid as being an encroachment upon the Executive powers of the State which are vested by the Constitution in the Governor.

Judgment entered for the respondents for their costs.

Hugh M. Morris and S. Samuel Arsht for Relator.

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

RODNEY and SPEAKMAN, J. J., sitting.

OPINION

RODNEY, J.

We shall consider these questions in their order, as presented by the Relator. The Relator contends:

1 (a) That under Art. II, Sec. 19 of the Delaware Constitution of 1897 the Act required an affirmative vote of two-thirds of all the members elected to each House of the General Assembly, and

(b) That under Art. VIII, Sec. 3 of the Constitution the Act required an affirmative vote of three-fourths of all the members of each House.

The Relator contends that the Act in question did not receive either the two-thirds vote required under one provision, nor the three-fourths vote required under the other, and therefore was not validly enacted.

The defendants claim that the Court may not examine into the quantum of votes as shown by the Legislative Journals, for they claim that the Enrolled Bill Doctrine has been adopted by Constitutional Amendment as the law of the State of Delaware, and that under that doctrine the enrollment of the Bill has determined the validity of its passage.

The Relator denies that the Courts are precluded from considering the legislative vote where the issue is whether or not a Bill was passed by the majority prescribed by the Constitution.

It is unnecessary in this case to determine the applicability of the Enrolled Bill Doctrine, for it is conceded by both sides to this controversy that the Act in question was passed in the first instance by a majority of votes in each House of Assembly and, after veto by the Governor, by three-fifths of all the members elected to each House. We must first then determine whether there be any constitutional provision requiring in the first instance a greater vote for this Act than a majority vote, and this inquiry leads us directly to the Relator's contentions, which will be considered in their order.

(a) The Relator contends that, for the passage of the Bill, it was required by Art. II, Sec. 19, that such Bill should receive a vote of two-thirds of all the members elected to each House. The provision is as follows:

"The General Assembly shall not pass any local or special law relating to fences; the straying of livestock; ditches; the creation or changing the boundaries of school districts; or the laying out, opening, alteration, maintenance or vacation, in whole or in part of any road, highway, street, lane or alley; [provided, however, that the General Assembly may by a vote of two-thirds of all the members elected to each House pass laws relating to the laying out, opening, alteration or maintenance of any road or highway which forms a continuous road or highway extending through at least a portion of the three counties of the State.]"

The first part of the section, and down to the word "provided", was the original section as adopted in 1897. The concluding portion of the section, commencing with the word "provided" and included in the square brackets, was proposed as an amendment in 1911 (Vol. 26, c. 2, Laws of Delaware), and adopted in 1913 (Vol. 27, c. 2).

Prior to 1897 the Legislature had plenary power to enact local and special legislation on almost any subject, and our Session Laws are replete with instances of the exercise of that right. Many States, however, at an early date perceived that unlimited special or local legislation encouraged legislative trading, log-rolling, and the advancement of private rather than public or general interests. Most jurisdictions have, today, costitutional provisions limiting the power of the Legislature to enact special or local laws. 25 R. C. L. 820; Note, 93 Am. St. Rep. 106. This was the origin and the reason for Art. II, Sec. 19 of the Delaware Constitution. By this section the Legislature was absolutely prohibited from passing special or local laws with reference to a number of subjects--of which we are now only interested in roads and highways. By the section the Legislature was absolutely prohibited from passing local or special laws with reference to "the laying out, opening, alteration, maintenance or vacation, in whole or in part of any road, highway, street, lane or alley."

It mattered not whether such local or special legislation was passed by a majority vote, by two-thirds majority, or passed unanimously. The Legislature from 1897 and until 1913 was absolutely prohibited from enacting such local or special legislation. At no time, however, was the Legislature prevented from affecting such subjects by general law. As to this they had unlimited authority.

Such was the situation when the amendment to the Constitution was adopted March 17, 1913 (Vol. 27, c. 2). The defendants suggest that the amendment proposed in 1911...