State v. Foote

• Decision Date: 29 August 1933
• Citation: 168 A. 245,35 Del. 514
• Court: Supreme Court of Delaware
• Parties: THE STATE OF DELAWARE, upon the relation of Percy Warren Green, Attorney-General, v. JOHN C. FOOTE

168 A. 245

35 Del. 514

THE STATE OF DELAWARE, upon the relation of Percy Warren Green, Attorney-General, v. JOHN C. FOOTE

Supreme Court of Delaware

August 29, 1933

Court in Banc for New Castle County. Case certified to that Court by the Superior Court for New Castle County, being No. 215 May Term, 1933.

A petition was filed by the Attorney-General in the Superior Court for New Castle County for leave to file an information in the nature of a writ of quo warranto to determine the right of the defendant, John C. Foote, to hold and exercise the office of Director of Public Safety in the City of Wilmington. Stipulations as to waiver of process, appearance gratis of the defendant, pleadings and statement of facts, as well as the usual stipulation that no writ of error would be sued out, were filed in that Court. The case was then certified by the Superior Court to the Court in Banc.

It appeared from the agreed statement of facts that, on the twelfth day of June, 1933, the then Mayor of Wilmington Frank C. Sparks, appointed the defendant to the office of Director of Public Safety to fill a vacancy created by the expiration of term of office of J. Wirt Willis, and without submitting the appointment to the Council for confirmation. It further appeared that this was done on the assumption that as two successive appointments theretofore submitted by the Mayor to fill said vacancy had already been acted upon adversely by the Council, he was not obliged to submit the appointment of the defendant to that body because of the provisions of Section 9, Chapter 177, Volume 24, Laws of Delaware, approved March 25, 1907. The Act in question, which will hereafter be referred to as the Act of 1907, was as follows:

"All appointments to office which the Mayor, by law now or hereafter may have power to make, shall be subject to confirmation by The Council, by a majority vote of all the members elected thereto. Appointments not acted upon by The Council within ten days after the same are made and sent to The Council shall be valid without confirmation. And if The Council should act adversely upon two successive appointments to any office, the Mayor shall have power to make the third appointment in accordance with existing law."

Pursuant to the appointment so made, the defendant qualified by taking the required oath of office, and by giving bond, and when this proceeding was started was holding and exercising the powers and duties of the office of Director of Public Safety.

On the first day of July, 1933, the term of office of Mayor Sparks having expired, and the newly elected Mayor, William H Speer, having assumed office as Mayor of the City, he conceived that the appointment of the defendant had not been legally accomplished, in that it was not confirmed by the Council, as provided by Section 2, c. 111, Vol. 32, Laws of Delaware, approved March 16, 1921, being an Act creating a Department of Public Safety for the City of Wilmington. He therefore, submitted to the Council for confirmation the appointment of George L. Coppage to the office of Director of Public Safety to fill the vacancy created by the expiration of the term of office of said Willis. This appointment was confirmed by the Council on the fifth day of July, 1933.

The material parts of Section 2 of said last mentioned Act, hereafter referred to as the Act of 1921, provided as follows:

"The aforesaid Department of Public Safety shall be composed as follows:

"Samuel K. Smith, who shall have full power and authority to act as a director of the said Department from May first, 1921, and shall serve for a term of six years, or until his successor shall be duly appointed and confirmed; William B. Megear, who shall have full power and authority to act as a director of the said Department from May first, 1921, and shall serve for a term of four years, or until his successor shall be duly appointed and confirmed; I. Pusey Wicker-sham, who shall have full power and authority to act as a director of said Department from May first, 1921, and shall serve for a term of two years, or until his successor shall be duly appointed and confirmed. At the expiration of the term of office of either of the said directors, the vacancy thereby created shall be filled by the Mayor of 'The Mayor and Council of Wilmington' by the appointment of a competent person at least thirty days next preceding the expiration of the said term.

"Said appointment shall be subject to the confirmation of 'The Council,' of 'The Mayor and Council of Wilmington.' Said person so appointed shall hold office for and during the term of six years from the first day of May ensuing, or until his or her successor shall have been appointed and confirmed.

"Vacancies in the said Department, caused by death, resignation or otherwise, shall be filled by the Mayor for the residue of the unexpired term, and shall also be subject to confirmation by 'The Council, ' of 'The Mayor and Council of Wilmington.'"

E. Ennalls Berl, City Solicitor, for the State.

James R. Morford for the defendant.

LAYTON, C. J., HARRINGTON, RICHARDS, RODNEY and REINHARDT, J. J., sitting.

OPINION

LAYTON, C. J.

The question before the Court is whether the appointment of the defendant required confirmation by the Council. If the appointment did not require confirmation it was in all respects legal, and the defendant is entitled to hold and to exercise the office. On the other hand, if the appointment was not a legal and valid appointment unless confirmed by the Council, the defendant is not entitled to hold the office, but is a usurper.

The Act of 1921 contains no express repeal of the Act of 1907. It does, however, contain a usual provision, "All Acts, or parts of Acts, inconsistent with this Act are hereby repealed." Section 16. This provision is not of importance, as it is only declaratory of what would be the effect of the act without the provision. 25 R. C. L., § 165, p. 912.

And if the later Act does, in fact, repeal the earlier Act, insofar as the manner of accomplishing appointments to the office of Director of Public Safety is concerned, the repeal is implied or constructive, and it is, therefore, incumbent upon the Court to consider carefully the pertinent provisions of the two statutes to arrive at the legislative intent with respect to the necessity of confirmation by the Council of the appointment of the defendant.

The petitioner contends that the language of the Act of 1921 is so clear in itself as to leave no room for interpretation; that the Act of 1921 is plainly inconsistent with the Act of 1907; that the Act of 1921 deals completely with the subject matter of the Act of 1907, and, therefore, it has the effect of repealing the prior Act as to that subject matter; and that the later Act is a special Act dealing with the same subject matter of the earlier general Act, and will prevail over the earlier General Act.

The law is well settled in this state that:

Repeals by implication are never favored. State v. Fahey, 2 W. W. Harr. (32 Del.) 504, 126 A. 730, 734.

In determining questions of repeal of statutes by implication the legislative intention is the controlling factor, and its ascertainment the paramount object. Husbands v. Talley, 3 Penne. 88, 47 A. 1009, 1013; State v. Peverly, 2 W. W. Harr. (32 Del.) 443, 125 A. 421.

When there are two Acts on the same subject the rule is to give effect to both if possible. But if the two are repugnant in any of their provisions, the later Act, without any repealing clause, operates to the extent of the repugnancy as a repeal of the first. District of Columbia v. Hutton, 143 U.S. 18, 12 S.Ct. 369, 36 L.Ed. 60, adopted in Husbands v. Talley, supra.

Or, to state the rule in another way, "statutes should be construed in connection with the previously existing statutory or common law upon the same subject. Whether such statutes repeal the previously existing law, in the absence of a repeal in express terms, depends upon the presence or absence of an irreconcilable inconsistency between them, unless it is manifestly clear that the later enactment is intended to supersede the earlier law and embrace the whole subject-matter." State v. Donovan, 5 Boyce (28 Del.) 40, 90 A. 220, 224.

Examining the material provisions of the Act of 1907 it is found that the participating power, or right of veto, of the Council with respect to appointments to office by the Mayor is not unrestricted, but is partial or qualified, in that, (a) unless the Council acts upon the submitted appointment within ten days, it is valid without confirmation, and (b) if the Council shall have acted adversely upon two successive appointments submitted to it, the Council has no right of veto with respect to the third appointment.

Under this Act a situation may arise in which the Council, by inattention, indifference, neglect or refusal to act forfeits its right to participate in the appointment; or a situation may arise where the Council, through unreasonable refusal to act favorably upon either of the first two appointments submitted to it, may deprive itself of its right and power to participate in the appointment of the third selection of the Mayor; or, a situation may arise where the Council, reasonably may refuse to approve two successive selections submitted to it, and thereby be deprived of its right to a voice in the third selection; and, it is not impossible that the last situation might be deliberately created in order that an appointment may be made untrammeled by action of the Council. The provisions of the Act of 1907 may, therefore, be regarded as unusual. No doubt they were enacted to prevent an impasse between the Mayor and Council to the detriment of the interests of the public, but, at the same...