State v. Glenn

• Decision Date: 21 February 1939
• Citation: 4 A.2d 366,39 Del. 584
• Court: Delaware Superior Court
• Parties: THE STATE OF DELAWARE, upon the relation of Percy Warren Green, Attorney-General, v. GEORGE J. GLENN

4 A.2d 366

39 Del. 584

THE STATE OF DELAWARE, upon the relation of Percy Warren Green, Attorney-General, v. GEORGE J. GLENN

Superior Court of Delaware, New Castle County

February 21, 1939

Superior Court for New Castle County, No. 146, January Term 1938.

Motion to discharge the rule.

This proceeding was brought to determine the question whether George J. Glenn, the defendant, or Thomas E. Peeney, in whose interest the relator sued, was entitled to the position of secretary of the Department of Elections for the City of Wilmington.

A rule to show cause why leave should not be granted to file the information was issued and served upon the defendant.

The defendant moved to discharge the rule on the following grounds:--

1. That this Court is without jurisdiction to grant leave to file the information in that the position of Secretary of the Department of Elections for the City of Wilmington is not a public office.

2. That said information does not state facts to constitute a cause of action.

The only provisions of the Act relating to the Department of Elections (Chapter 56 of the Revised Code of 1935) which have any pertinency to this case are as follows:

"1746 Sec. 2. * * * Commencing on the first Tuesday of April, 1913 and biennially thereafter, the members of the said Department of Elections shall meet and organize said Department by electing one of their number to be President of the Department; and they shall also elect a Secretary. The term of office shall be two years from the date of such organization. * * *"

"1756. Sec. 12. * * * Any member of or the Clerk [Secretary] of said Department of Elections is authorized and empowered to administer such oath or affirmation [the oath of office of the Registration Officers]; provided that no fee be charged for administering such oaths or affirmations."

The rule is discharged.

Percy Warren Green, Attorney-General, in propria persona.

Josiah Marvel and William Marvel for defendant.

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

OPINION

SPEAKMAN, J.

This is a motion by the defendant to discharge the rule to show cause why leave should not be granted to file the information because as he contends this Court has no jurisdiction in that the secretary of the Department of Elections for the City of Wilmington is not a public officer.

This contention is denied by the relator.

"There is no doubt that the remedy by information may not be invoked for the redress of mere private grievances (Spelling's Ex. Rem., §§ 1830, 1831), and can only be invoked when wrong has been done to the public. Hence it follows, if a wrong complained of be the usurpation of an office, it must be the usurpation of an office public in character, otherwise the people cannot be called upon in their sovereignty to petition for its redress." Brooks v. State, 26 Del. 1, 3 Boyce 1, 79 A. 790, 796, 51 L. R. A. (N.S.) 1126, Ann. Cas. 1915A, 1133.

In considering the distinction between a public office and a mere employment it has been said:

"It is sometimes difficult to determine whether a position is an office or a mere employment. Generally speaking, and each case must necessarily depend upon its own facts, a state office embraces the right to exercise a state function or employment, and to take the fees and emoluments belonging thereto. It not only involves the conception of tenure, power, duration, oath, fees and emoluments but also the authority and duty to exercise some part of the sovereign power of the state either in making, administering or executing the laws of the State." State v. Corley, 6 W. W. Harr. (36 Del.) 135, 172 A. 415, 419.

It has been stated that "The oath, the salary or fees are mere incidents and constitute no part of the office." Throop Public Officers, Section 3. They may, however, be considered in doubtful cases in determining whether a position is an office or a mere employment. See annotation, 53 A. L. R. 602; 93 A. L. R. 337.

The phrases "public offices" and "public officers" have been defined in many ways, but in substance the various definitions of the respective phrases do not vary.

By Section 1 of Meecham on Public Officers, they are defined as follows: "A public office is the right, authority and duty, created and conferred by law, by which, for a given period, either fixed by law, or enduring at the pleasure of the creating power, an individual is invested with some...