State v. Schorr

• Decision Date: 31 January 1948
• Docket Number: 192
• Citation: 44 Del. 232,58 A.2d 421
• Court: Delaware Superior Court
• Parties: THE STATE OF DELAWARE, upon the relation of Albert W. James, Attorney-General, Relator, v. SIGMUND SCHORR, LEROY F. HAWKE, JOHN F. NEWELL, THOMAS COOCH, LELAND WILDS, LEON H. RYAN, WILLIAM K. PENNINGTON, JAMES E. BROWN, JAMES L. BROWN, JOHN W. FOREMAN and WALTER G. TATNALL, Respondents

58 A.2d 421

44 Del. 232

THE STATE OF DELAWARE, upon the relation of Albert W. James, Attorney-General, Relator, v. SIGMUND SCHORR, LEROY F. HAWKE, JOHN F. NEWELL, THOMAS COOCH, LELAND WILDS, LEON H. RYAN, WILLIAM K. PENNINGTON, JAMES E. BROWN, JAMES L. BROWN, JOHN W. FOREMAN and WALTER G. TATNALL, Respondents

No. 192

Superior Court of Delaware, New Castle

January 31, 1948

Percy Warren Green and Joseph A. L. Errigo for relator.

Daniel F. Wolcott (of the firm of Southerland, Berl and Potter) for Sigmund Schorr, Leroy F. Hawke, John F. Newell, Thomas Cooch and Leland Wilds, respondents.

Henry A. Wise, Jr., (of the firm of Hastings, Stockly, Walz and Wise) for Leon H. Ryan, William K. Pennington, James E Brown, James L. Brown, John W. Foreman and Walter G. Tatnall respondents.

PEARSON J., sitting.

OPINION

PEARSON, J.:

This case raises the question whether a statute enacted in 1947, 46 Laws of Del. Chap. 182, pp. 482-484, relating to the Department of Elections for New Castle County is violative of provisions of the State Constitution. Relator asserts that the method of appointment of members of the Department is a fatal infirmity of the act. The challenged provisions read thus, 46 Laws of Del. p. 483:

"There shall be appointed eleven members of the Department of Elections for New Castle County, on the fifteenth day of April, 1947, and every four years thereafter on the fifteenth day of April, five members of which are to be nominated by the State Chairman of one of the two leading political parties; five members of which are to be nominated by the State Chairman of the other of the two leading political parties; and one member of which is to be nominated by the Governor. All of the members so nominated shall be appointed by the Governor as members of the Department of Elections. There shall never be more than six members of any one political party or faith. When any member ceases to hold office in the Department due to death, resignation, or for any other cause whatsoever other than the expiration of a full term, the nominating authority which originally nominated that member shall nominate a successor to fill the vacancy which nominee shall be appointed by the Governor for the residue of the term."

The relator is the Attorney General. The eleven respondents are the persons appointed by the Governor pursuant to the statute to serve as members of the Department. Five were nominees of the State Chairman of the Republican party; five were nominees of the State Chairman of the Democratic party; and the remaining one was selected by the Governor.

It is axiomatic that the legislative power of our General Assembly "is as broad and ample in its omnipotence as sovereignty itself, except in so far as it may be curtailed by constitutional restrictions express or necessarily implied". Collison v. State, 39 Del. 460, 9 W.W. Harr. 460, 468, 2 A.2d 97, 100, 119 A.L.R. 1422; State v. Emerson, 40 Del. 328, 1 Terry 328, 345, 10 A.2d 515; affirmed: 1 Terry 496, 14 A.2d 378. Consequently, the act in question must be held valid on constitutional grounds unless it be found to violate some constitutional restriction. We shall proceed to consider whether there are any such restrictions which, as the relator contends, are violated by the act.

First, relator says that the act deprives the Governor of "full power of appointment". By this, relator refers to the provisions which repose the power to select ten of the members in the Chairmen of the two leading political parties. The Delaware Constitution, Article III, Section 9, provides:

"He [the Governor] shall have power, unless herein otherwise provided, to appoint, by and with the consent of a majority of all the members elected to the Senate, such officers as he is or may be authorized by this Constitution or by law to appoint."

This provision is a grant of power, not a limitation of a power which would otherwise be unlimited; and the power to appoint to an office created by the Legislature is not required to be reposed in the Governor. State v. Emerson, 40 Del. 233, 1 Terry 233, 8 A.2d 154. Thus, the Governor is empowered to exercise appointive power only to the extent that he is granted such power specifically by the Constitution or by statute. The Statute here provides that the Governor shall appoint the members of the Department, but as to ten of them, he is limited in his selection to those nominated by the two State Chairmen. The power given him does not include the power to choose these ten members independently. Having expressly excluded the power to select from the meaning of "appoint" as used, it follows that what the Statute authorizes him to do is to perform all other acts involved in the making of an appointment; namely, to grant commissions to the ten nominees. A similar authority is reposed in the Governor by the act creating the office of Vice-Chancellor. 42 Laws of Del. c. 148, p. 308. There, his authority is described by the verb "commission"; but this difference in language is of no moment, since the meaning of the words employed in that and in the present act is patently the same. It would be absurd to hold that in order to effect a particular end, the Legislature must employ one particular verbalism only, even though an expression actually used is the same in meaning. I find no constitutional restriction which prevents the Legislature from prescribing that the members of a department it creates shall be "appointed" by the Governor, although not selected by him.

Secondly, relator charges that the act violates constitutional restrictions in that it provides for the "appointment of officers by irresponsible persons outside the frame of government." By this is apparently meant that such persons do not owe enforceable duties to perform the acts they are empowered to perform, are not subject to the restraints imposed on governmental officers generally, and are not within the classification of "governmental officers". Whether a State Chairman was an "irresponsible person outside the frame of government" before the statute was enacted may be one question. But, assuming he was, it is another question whether the attempted grant of powers by the statute itself renders any State Chairman, who in any manner accepts the grant, "responsible" and within "the frame of government" in so far as the exercise of the powers is concerned.

It is plain that the selection of members of the Department of Elections is a governmental function. The statute attempts to vest the power to make such selections in the State Chairman of the two leading political parties. Thus, in so far as their function is concerned, when exercising the statutory power, the State Chairmen may be appropriately classified as governmental officers, and hence, not "outside the frame of government". Moreover, the grant to the State Chairmen of the power of selection and the acceptance of the grant by them imposes duties on them with relation to the exercise of that power, Nixon v. Condon, 286 U.S. 73, 52 S.Ct. 484, 76 L.Ed. 984, 88 A.L.R. 458, and therefore, they are not properly characterized as "irresponsible". In the Nixon case, a Texas statute empowered political parties through their State Executives Committees to "determine who shall be qualified to vote or otherwise participate" in such parties. Vernon's Ann. Civ. St. art. 3107. The Democratic party adopted a qualification for voting at primary elections, which would have been in violation of the Fourteenth Amendment of the Federal Constitution if it had been adopted by the legislature. It was contended that political parties (and their executive committees) are not agencies of the government, but are private associations, and hence, not subject to the restraint imposed by the Fourteenth Amendment. The court held otherwise, as appears from the following quotation from the opinion of Mr. Justice Cardozo [286 U.S. 73, 52 S.Ct. at 487]:

"We do not impugn the competence of the Legislature to designate the agencies whereby the party faith shall be declared and the party discipline enforced. The pith of the matter is simply this, that, when those agencies are invested with an authority independent of the will of the association [political party] in whose name they undertake to speak, theybecome to that extent the organs of the state itself, the repositories of official power. They are then the governmental instruments whereby parties are organized and regulated to the end that government itself may be established or continued. What they do in that relation, they must do in submission to the mandates of equality and liberty that bind officials everywhere. They are not acting in matters of merely private concern like the directors or agents of business corporations. They are acting in matters of high public interest, matters intimately connected with the capacity of government to exercise its functions unbrokenly and smoothly. * * * The test is not whether the members of the executive committee are the representatives of the state in the strict sense in which an agent is the representative of his principal. The test is whether they are to be classified as representatives of the state to such an extent and in such a sense that the great restraints of the Constitution set limits to their action."

Relator's argument disregards the significant consequences flowing from the statute itself and considers the office of State Chairman without reference to the statute. There is a considerable body of legislation which provides for the organization and regulation of political parties and of primary elections held by them. For example, compare: Rev. Code of Del. 1935 §§ 1810, 1769, 1770, 1776, 1778-1784, 1786-1792, 1794-1796, 1800 and 1803, all as amended. However, neither...