39 Del. 460 | Del. | 1938
delivering the opinion of the court:
When occasion arises to refer to the parties, the designation of them will be as in the court below. The defendant in error will be called the relator and the plaintiffs in error will be called the defendants.
The statute creating the Industrial Accident Board was enacted in 1917. The statute is known and cited-as the Delaware Workmen’s Compensation Law of 1917, and appears as Chapter 175 of the Revised Code of 1935, § 6071 et seq. It confers jurisdiction upon the Board of all cases arising under the compensation schedules of the act and entrusts to the Board the general administration of the act’s provisions.
“Such appointments shall originally be as follows: one member shall be appointed for the term of two years, another for the term of four years and another for the term of six years. Thereafter,_ as the terms of office of members expire, either by death, resignation, removal from the State, or otherwise, appointments shall be made for terms of six years each.
“Each person appointed under the provisions of this section shall hold office until his successor is appointed and qualified._ The Governor may remove any member of said Board with or without cause. * *
In removing the old members of the Board, the Governor assigned no cause for his action and afforded them no opportunity to be heard in opposition.
The Governor relied on the express language of the act wherein it is provided that he “may remove any member of said Board with or without cause,” in support of the power he assumed to exercise. That the act intended to confer on him the arbitrary power of removal is too plain for argument. The fact that the act provided that the first appointees should be appointed for terms respectively of two, four and six years, and that thereafter the appointments should be for six years, might be said to indicate an intent that the Board should always have in its composition at least two experienced members, and so to negative the suggestion that such a complete change of personnel as would be involved in the contemporaneous removal of all the members, was ever intended. This is the argument of inference. It is inference drawn from only a portion of the act. It ignores the express provision that any member may be removed with or without cause. No limitation is put upon
We repeat, then, that it is too plain for argument that the act intended to confer on the Governor the power arbitrarily to remove the members of the Board.
In so far as legislative intent is concerned, nowhere, either in the opinion of the court below or in the brief of argument of the relator, is it seriously suggested that the power which was conferred was not intended to be general in its scope and arbitrary in its exercise.
The sole ground of attack by the relator, both in the court below and in this court, consists in the contention that the General Assembly acted in violation of constitutional restraint when, having created an office with a term of six years, it proceeded to confer upon the Governor the power to remove with or without cause the incumbent thereof before the expiration of the six year period.
The court below held that the office of member of the Industrial Accident Board is an office having a definitely fixed term, and that under the constitution of this State it is beyond the power of the General Assembly when it creates an office with a fixed term to confer on the Governor an arbitrary power of removal therefrom. While there is no express inhibition in the constitution against the conferring of such power upon the Governor in the case of a statutorily created office, the court below held there was a clear implication in the constitution to that effect. Hence it concluded that the removal clause is in conflict with the constitution and is therefore void. Wherefore judgment of ouster was entered.
The question of the constitution’s interpretation engaged the attention of the court below throughout most of
Having arrived at the conclusion that it was beyond the power of the General Assembly to create an office of a fixed term and at the same time to authorize the Governor arbitrarily to remove an incumbent thereof before the expiration of the specified term, the court below then proceeded to examine the statute with the view of ascertaining whether or not the offices created by it were in fact offices with fixed terms and so beyond the power of the General Assembly to authorize removals therefrom, under the constitution as constructed. The conclusion was reached that the statute was intended to create offices of fixed and definite tenures of six years each; and having reached that conclusion the court below applied the implied prohibition of the constitution to the removal clause and held it to be void.
Now it is apparent that one of the essential premises upon which the conclusion of the court below is based is, that the office of a member of the Industrial Accident Board is an office having a rigid term of a fixed number of years. Unless the office has that characteristic, viz., the characteristic of a definitely fixed term, there can be no occasion for consideration of the constitutional question. The opinion of the court below shows very clearly that it is framed on that theory.
There is nothing in our constitution which expressly requires the legislature in creating offices to affix to them terms of definite duration. Neither is anything to be found therein which is impliedly to that effect. The only use of the word “term” found in the constitution which can in any sense be attributable to statutory offices is in the bill of rights (Art. 1, Sec. 19), where it is provided that no office shall be created or exercised for a longer term than during good behavior. But as is apparent, this provision does not purport to require the legislature when an office is created
It is to be observed that in the impeachment article (Art. 6) of the constitution the penalty on conviction is in part simply “removal from office” and in Art. 3, Section 13, where the Governor is empowered to remove an officer on the address of two-thirds of the legislature, his authority is simply to “remove any officer.” In Art. 15, Section 6, the language is — “all public officers shall hold their offices on condition that they behave themselves well.” In all of these provisions the language is so phrased as to avoid any inference that the contemplated tenure of or the contemplated removal from offices was necessarily associated with offices having fixed terms.
Now if a constitution contemplates that all statutory offices shall have a duration of a definite term for their occupancy and contains provisions for removal of incumbents before the expiration of such terms, it would be arguable that the legislature possessed no power to provide for a removal of an incumbent before the expiration of the term otherwise than as the constitution provided. This is for the reason that the connotation of “term” as applied to an office is that of a fixed and definite period (Speed & Worthington v. Crawford, 3 Mete. (Ky.) 207; 46 C. J. 963, citing other cases), and therefore, if the legislature attempted in creating the office to authorize the ousting of the incumbent of the term independently of the constitutional method of removal, it would be equivalent to an attempt by the legislature to provide by statute for removal of an officer from his constitutional term of office. It would be so arguable, though we do not mean to say the argument would be convincing. All we are saying is that the argument could be made.
The result then is that offices of statutory creation in Delaware are left in the sole discretion of the legislature in respect of the term or duration of their incumbency, unaffected by any constitutional limitation, other than this — that the legislature can in no case extend the tenure beyond good behavior. Within the limits defined by good behavior, the legislature is free to make the term of an office created by it long or short according as it sees fit in the exercise of its discretion. As there is nothing in the Delaware constitution which requires the legislature in the creation of statutory offices to prescribe fixed and definite terms for their occupancy, it must necessarily follow that no constitutional inhibition exists against the creation of such an office to be held during the pleasure of the appointing power. This is because of the familiar principle which is nowhere questioned, that in the American States, as distinguished from the Federal Government, the legislative power 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.
In Hoke v. Henderson, 15 N. C. 1, 25 Am. Dec. 677, the Supreme Court of North Carolina said: “Undoubtedly, the creation of an office is a question of political expediency; so is the qualification of the officer; and so are his duties, perquisites, punishment, and the tenure by which he holds his office. By consequence, they are the subjects of legislative regulation. And as the creation, so is the continuance of the office, a question of sound discretion in the Legislature, of which a court cannot question the exercise * * *. The public interest [referring to the same as reflected in
The court below in substance recognized this principle when it said that, if no inhibition of the constitution forbids, “when an office is created by the statute of a state, it is wholly within the power of the Legislature creating it, and the legislative power extends to the subject of regulating removals from office.”
Now having arrived at this point in our discussion, it is next in order to examine the statute for the purpose of discovering just how it is to be interpreted with respect to the term of office which it prescribes for members of the Industrial Accident Board.
The relator contends that the statute is to be construed as creating a fixed and rigid term marked by a definite number of years for its duration, and that the removal clause cannot properly be considered as an element in the definition of the length of the term; but rather it is to be
The greater part of the opinion below is devoted to consideration ' of the question of whether there is an implied prohibition in the constitution against the exercise by the legislature of a power to provide for a statutory method of removal from a legislatively created office having a fixed term of years for its tenure. The court below held that there was such an implied prohibition. It then proceeded to construe the statute in question as meaning to create offices with such fixed terms and, having interpreted the constitution as it did, it held- that the removal clause was in conflict with the implication of the constitution and accordingly void.
Manifestly, therefore, if the statute is construed not as creating an office with a definitely prescribed and fixed term, but rather as creating an office for an indefinite term, no occasion arises for considering the constitutional question which engaged the attention of the court below throughout the greater length of its opinion.
What then does the statute mean? How is it to be interpreted with respect to the term ? Is the term a fixed and definite one for years and the removal clause a separate, distinct and independent provision having no connection with the definition of the term’s length? Or is the term one that is compounded of two things, viz., years and the appointing power’s, the Governor’s, pleasure, so as to make it indefinite with an outside limit for its duration?
The court below was of the opinion that the construction is an impossible one which would ascribe to the tenure anything other than that of a fixed number of years. In other words it refused to allow to the removal clause any significance whatever as indicating a legislative intent that indefiniteness within the six year period is the character of the term’s duration.
If the statute is in reason susceptible only of the construction placed upon it by the court below and of no other construction, then it would follow that the constitution would require to be construed with the view of determining whether the statute as so construed was within its implied condemnation.
But we are of the opinion that the construction placed upon the statute by the court below and insisted upon
Effect is undoubtedly to be given to the words— “for terms of six years.” But effect is also to be given to the words — “the Governor may remove any member of said Board with or without cause.” The court below found these two provisions absolutely repugnant and utterly incapable of harmonious reconciliation, and so struck down the clause dealing with removals as unconstitutional. Now if the two provisions are not so repugnant to each other as to be incapable of being blended into an harmonious reconciliation, it is the duty of the court to so blend them. This is in accordance with the cardinal rule of construction which the court below recognized that a statute must be so construed, if fairly possible, as to avoid the conclusion that it is unconstitutional.
The provisions that the terms shall be for six years and that the Governor may in substance summarily remove a member of the Board at any time before the expiration of the six year period, are reasonably capable of reconciliation. The one provision is vested with no more sanctity as an expression of the legislative will than the other. Both can be given effect. Kent in Volume 1, page
Taking the two provisions together may it not be reasonably said that, notwithstanding the literal language and the form in which the six year clause is expressed, the intention of the legislature as shown by the removal clause was that members of the Board should hold office for six years unless sooner removed by the Governor, or, putting the thought in another and clearer way, that they should hold their offices during the pleasure of the Governor but in no event longer than six years? The difference between saying “for six years, but the Governor may remove” and “during the pleasure of the Governor but for not longer than six years,” is a difference only in manner of expressing the same fundamental thought which is that the term shall be an indeterminate and indefinite one not exceeding in any event the period of six years.
In State v. Mitchell, 50 Kan. 289, 33 P. 104, 106, 20 L. R. A. 306, the statute provided that railroad commissioners should be elected by the executive council and that when so elected they should “continue in office for the term of three years from said date,” and in another sentence of the same section provided that “the executive council may at any time remove such commissioners, or any of them, and elect others to fill the vacancy.” This statute was in almost the exact pattern of our own. A reading of the opinion, especially in light of the argument urged before the court in behalf of the defendant, clearly shows that the court construed the statute to create an office not with a definite term but one to be held during the pleasure of the electing power for not more than three years. The way the court expressed it was for “three years, unless sooner removed by the executive council.” The Kansas Constitution, Article 15, § 2, provided that “the tenure of any office not herein provided for may be declared by law. When not so declared, such office shall be held during the pleasure of the authority making the appointment.” This being the constitutional provision, it was contended in behalf of the defendant that the term was fixed by the statute for three years and so was, in the language of the constitution, “declared by law.” The removal clause, it was contended was “independent of, and in no sense qualifies the clear and absolute character of, the declaration of the term or tenure. Having fixed the term, any provision following [manifestly referring to the removal clause] which does not inhere in
The Kansas case is therefore an authority in support of the idea that the combination of the years clause and the removal clause results in the ascription of indefiniteness to the term, which is much stronger in its persuasiveness than the necessities of the instant case, due to the above variation in the statutory provision respecting appointment to vacancies, require for the support of the defendants’ position.
The court below disposed of the Kansas case by observing that the Kansas court “was not embarrassed by any constitutional limitation on the legislative power with respect to removals.” 9 W. W. Harr. (39 Del.) 245,197 A. 860. In view of the contention which the report of the Kansas case shows was made, viz., that if the term was a fixed one the Kansas constitution had negatived the idea of a tenure of office at the pleasure of the appointing power, it would seem that there was to an extent at least a constitutional inhibition involved. But even if it were otherwise, that is to say if there were no constitutional question in the case, then the force of the decision is the more impressive. This is because the case would then resolve itself into one of straight statutory construction, uninfluenced by the consequences of
We have commented on State v. Mitchell, supra, at length because of its close relevancy to the case at bar upon the question of statutory construction. The case is clearly to the effect that the clause of a statute fixing a term of years for an office and a concomitant clause providing for removal by the appointing power before the expiration of the period, are to be construed together, and that when so construed the result is that the legislative intent is to be understood as having been to create an indefinite tenure within a term of years.
Other cases are to the same effect. Among these, Williams v. State, supra, is of special interest. It was decided by a closely divided court, four judges constituting the majority and three the minority. The office involved was the office of commissioner of the City of Mobile. The statute created the office with a term of three years and in a later provision provided for the arbitrary removal of a commissioner by recall before the expiration of the three year period. The constitution enumerated the causes for which officers of cities could be removed. The majority of the
In State v. Burke, 8 Wash. 412, 36 P. 281, cited supra, the office involved was that of a member of the State Capitol Commission. The statute, Laws 1893, p. 462, § 1, provided that the commissioners should “hold office till the completion of said building and the acceptance thereof by the state, unless sooner removed for cause, by the governor.” The question was squarely before the Supreme Court of Washington of whether the term of office was a definite or indefinite one. The court said that if the term depended solely upon the provision in the act that the commissioners should hold office till the completion of the building and an acceptance thereof by the state, the court would regard the term as a fixed and definite one — “as much so as if the act prescribed that the term should be for two years.” [page 282.] Therefore, the statute was in point of law just as though it read — for a term of two years unless sooner removed by the Governor. Now while in one clause the phraseology spoke the language of fixity and definiteness for the term, the Supreme Court said that the removal clause must be construed with it, and when so construed it must be concluded that as the removal clause was a limitation on the prior clause, the term was intended by the legislature to be an indefinite one. The only difference between that case and this one as regards the question of statutory construction is that the removal clause here is not in the form of “unless sooner removed by the Governor.” That is a difference, however, not in essential substance of meaning but only in the form of expression. Surely the constitutional fate of a legislative enactment should not be made to turn on the choice between two possible modes of expression when the underlying thought conveyed by each is the same.
In People ex rel. Gere et al. v. Whitlock et al., 92 N. Y. 191, the Mayor of the City of Syracuse summarily removed relators from the offices of police commissioners of the city. The statute creating the offices provided for terms of incumbency and clothed the Mayor with power to remove from office any commissioner “for any cause deemed sufficient to himself.” The Court of Appeals in sustaining the arbitrary removal power of the Mayor said, “the office was created by the legislature, and they might abridge its term by express words, or specify an event, upon the happening of which it should end. * * * In this case the event specified by the legislature is removal by the mayor.” Thus the removal clause, when acted upon, was treated by the Court of Appeals as defining a limitation upon the term which the statute created.
The foregoing citations of authority show that where the question has arisen in a direct way courts of ultimate authority in their states have decided that where the term of a statutory office has been defined as for a definite term of years with a provision, however, for removal by the appointing power before the expiration of the named period, the two provisions, when read and construed together, as they must be according to the well known canon of construction governing the subject, result in the view that the term is an indefinite one, to be held during the pleasure of the appointing power, but ending in any event not later than the specified number of years. If we were
The only case to which our attention has been called which can be said in any way to run counter to those authorities is the case of Townsend v. Kurtz, 83 Md. 331, 34 A. 1123. That case was concerned with the title to office of Insurance Commissioner. A statute created the office and provided that the commissioner “shall be appointed * * * for the term of four years * * * and shall hold his office during the term for which he is appointed * * * unless sooner removed by” the appointing power. The court did say in its opinion that the tenure was a definite and not an indefinite one. But this statement appears to be dictum which was in no wise necessary to the court’s decision. The court sustained the authority of the appointing power to effect the removal even without cause. The “real question” in the case, quoting from the court’s own language, was whether the appointing power could remove without cause, in other words arbitrarily. If the term, though for years was during pleasure and therefore indefinite, the power to remove was of course self-evident; if the term was definite as said by the court, the power to remove was nevertheless held to be equally operative. The result of the Maryland court’s decision therefore was that, whether the office was one with a definite or indefinite term, it was in the power of the legislature to authorize a removal therefrom by the appointing power in its absolute discretion. The question of definiteness of the term was therefore not involved in the case and the court’s expression of opinion on the point was therefore dictum that was unnecessary to its decision.
In Fletcher v. Peek, 6 Crunch 87, 3 L. Ed. 162, Chief Justice Marshall declared that “whether a law be void for its repugnancy to the constitution, is, at all times,
These are controlling principles which we must keep in mind when we approach the question of the constitutionality of the removal clause as the same appears in the act.,
Now we have before shown that authorities of deservedly high repute have been able after careful deliberation to harmonize such clauses in an act as we have before us so as to arrive at the conclusion that the net result of the act’s meaning is that the term of office is one of indefiniteness, and this where no threat of unconstitutionality added its impelling force to their conclusion. As against those authorities, we have found only one expression to the contrary which was solely by way of obiter dictum. In view of that state of judicial opinion elsewhere, can it be said that the construction which the decided weight of judicial pronouncements has approved is so impossible of fair support in reason as to be rejected? We think not. If not, then the rule prevails that where a construction of a statute may be given which is fairly reasonable, such construction will be adopted if its adoption is necessary to sustain the act’s constitutionality, and the opposite construction, though equally possible, will be rejected if its acceptance would result in unconstitutionality.
This is not a case where we are at liberty to select as a matter of reasoning, uninfluenced by the consequences of unconstitutionality, which of two possible constructions is preferable. All that we are called on to do in this case, under settled principles of law, is to say whether or not there are two fairly possible constructions. Having found two such constructions to be fairly possible as we have, we are
We are aware that in the judgment of many persons it is highly unwise for the legislature to create offices with an indefiniteness of tenure. We are not unsympathetic with that view. But it is the province of the legislature and not of the courts to pass upon matters of policy. The legislative hand is free except as the constitution restrains; and courts are bound by most solemn sense of responsibility to sustain the legislative will in the appropriate field of its exercise, even though in the opinion of the judges as individuals the legislature had acted in an unwise manner.
Courts will decline to consider the question of the constitutionality of a statute unless a decision can be reached on no other ground than the constitutional one. Cantor et al. v. Sachs et al., 18 Del. Ch. 359, 364, 162 A. 73, 75. Following this principle, we have declined to consider the constitutional question which was so fully discussed in the opinion of the learned Chief Justice in the court below. As the constitutional question could arise only if the statute is construed as it was in the court below, we have confined our attention first to the construction of the statute. Having found a reasonably possible construction of the statute which obviates the question of its constitutionality, we have followed the well beaten path of judicial approach and left the constitutional question untouched. It therefore remains an open one in this court.
It is hardly necessary to observe that nothing herein said is to be understood as referring to constitutional offices.
For the reasons hereinbefore stated we conclude that the judgment below should be reversed.
Richards, J., dissents.