39 Del. 245 | Del. Super. Ct. | 1938
Lead Opinion
delivering the opinion of the majority of the court:
It is agreed that a State Constitution operates not as a grant of power to the Legislature, but as a limitation of power; that all power, which is not limited by the Constitution, inheres in the people who declare their will through the Legislature. Accordingly, an unlimited power is vested in the Legislature of a state to enact all such laws as it may consider necessary and proper, except where limitations have been imposed by the Federal or State Constitutions.
The power of the Legislature may be restrained by express limitation, or by restrictions impliedly imposed; and restrictions in a Constitution with respect to legislative power are equally effective whether they arise by implication, or are stated in express terms. Such restrictions may be found either in the language employed, or in the evident purpose which was in view and the circumstances and historical events which led to the enactment of the particular provision as a part of the organic law. State v. Fox, 158 Ind. 126, 63 N. E. 19, 56 L. R. A. 893; Page v. Allen, 58 Pa. 338, 98 Am. Dec. 272; 11 Am. Jur. 898; Rathbone v. Wirth, 150 N. Y. 459, 45 N. E. 15, 34 L. R. A. 408, opinion of O’Brien, J.
Having in mind this fundamental principle, it is to be determined whether the several provisions of the Constitution of this state relative to removals of public officers from office, operate as a limitation on the legislative power to enact laws authorizing removals outside of the purview of the constitutional provisions.
Before the Revolution, an unlimited power of removal from office by the executives of the colonial governments
We, therefore, are prepared to find that the first constitution of 1776 provided that the public officers, both State and County, appointed by the president and privy council, should be commissioned and remain in office during five years if they should behave themselves well; that upon impeachment, if found guilty of “maladministration, corruption, or other means, by which the safety of the Commonwealth may be endangered,” a permissible penalty was removal from, office pro tempore; and that, “all officers shall be removed on conviction of misbehavior at common law,
Some of the able members of the convention that framed the Constitution of 1792 may be supposed to have had acquaintance with the fierce controversy that raged in the first session of the Federal Congress in 1789 with respect to the power of removal from office by the President. It was during the celebrated debates now to be mentioned that Representative White said that an uncontrollable power of removal in the Chief Executive was “a doctrine not to be learned in American Governments.”
The bill that aroused the controversy was concerned with the creation of the office of chief clerk in the State Department, in which bill there was a provision giving the President authority to remove incumbents of the office. The Federal Constitution contains no direct provision for the power to remove federal officers, and as a result, at that first session, there began a controversy, which has been continuous, as to where, with reference to specific officers or classes of officers, this power of removal is constitutionally vested, or where it may be vested by statute. Willoughby Const. Latov, § 670.
In Myers v. U. S., supra, the several opinions examine at length the historical, legislative and judicial data bearing on the question.
It was objected by members of the House of Representatives, among whom was Mr. Vining of Delaware, that as the Constitution was silent with respect to the presidential power to effect removals from office, it should be construed to confer that power as necessary adjunct to his duty and responsibility to enforce the laws, and that it should apply except with respect to the judges holding their offices under the Constitution during good behavior. Consequently, the provision of the bill was unnecessary and misleading as it might be construed as a grant of power. The bill passed
By the Constitution of 1792, the office of Chief Executive was created under the title of Governor. Adhering to the philosophy of the first Constitution with respect to removals from office, the Governor was empowered to “appoint all officers whose offices are established by this constitution or shall be established by law, and whose appointments are not herein otherwise provided for.” Article 3, § 8. It was provided that the chancellor and the judges of the Supreme Court and of the court of common pleas, “shall hold their offices during good behavior; but, for any reasonable cause which shall not be a sufficient ground for an impeachment, the governor may, in his discretion, remove any of them, on the address of two-thirds of all the members of each branch of the legislature.” Article 6, § 2.
By a separate provision, the Governor was empowered to appoint justices of the peace, “who shall be commissioned for seven years, if so long they shall behave themselves well; but may be removed by the governor within that time on conviction of misbehavior in office, or on the address of both houses of the legislature.” Article 6, § 20.
Again by separate provision, “The attorney-general, clerks of the supreme court, prothonotaries, registers, clerks of the orphans’ courts and of the peace, shall respectively be commissioned for five years, if so long they shall behave themselves well; but may be removed by the governor within that time, on conviction of misbehavior in office, or on the address of both houses of the legislature.” Article 8, § 5.
Sheriffs and coroners were made elective officers, to hold office for three years, if so long they behaved themselves well, and until their successors were duly qualified.
The office of secretary was created by the Constitution of 1776, Article 12, the incumbent “to remain in office during five years, if [he] behave [himself] well.” By the Constitution of 1792, it was provided that a secretary “shall be appointed and commissioned during the governor’s continuance in office, if he shall so long behave himself well.” Article 3, § 15.
The Governor, and all other civil officers were made liable to impeachment for treason, bribery, or any high crime or misdemeanor in office.
The provisions relating to appointments to office, and removals therefrom, were carried into the Constitution of 1831, but with the safeguarding provision with respect to removals of judges on the address of the Legislature, that the cause of removal be entered on the journal of each house and that the judge have notice accompanied with the cause alleged for his removal at least five days before action thereon by either house.
It is to be noted that, under the Constitution of 1776, the only public officers elected by the people were members of the General Assembly, sheriffs and coroners. The office of Governor was made elective by the people under the Constitution of 1792; but his power of appointment to office was not conditioned upon the approval of the Senate either by the Constitution of 1792 or by that of 1831.
By the Constitution of 1897, the power of the Governor was greatly limited and circumscribed. The Attorney-General, the state treasurer, the state auditor, the insurance
The impeachment provisions were not changed. The discretionary power of removal from office by the Governor upon the address of the Legislature was made applicable to “any officer,” except the Lieutenant Governor and members of the General Assembly, but with the requirements of a two-thirds vote of all its members elected to each house, of entry of the cause of removal on the journal of each house, and of notice accompanied with the cause alleged for removal of at least ten days before action thereon by either house.
Section 6 of Article 15 was given careful consideration by the convention. Fully one-half of the members were lawyers, some of them the foremost members of the Delaware Bar. See opinion of Grubb, /., in State v. Churchman, 3 Penn. 361, at page 386, 51 A. 49. The debate thereupon was led by William C. Spruance, who later served as associate judge with outstanding learning and ability, and was participated in by Edward G. Bradford, afterwards a distinguished judge of the United States District Court for the District of Delaware. Constitutional debates manifesting more directly purpose and policy are seldom found. The proceedings disclose that the section was substantially the first sentence of Section 4 of Article 6 of the Constitution of
As first proposed, the section read, “all officers shall hold their offices on condition that they behave themselves well, and shall be removed by the Governor on conviction of misbehavior in office or of any infamous crime.” At the suggestion of Judge Bradford the sentence was altered so as to make two substantive provisions, and as adopted, it reads, “All public officers shall hold their offices on condition that they behave themselves well. The Governor shall remove from office any public officer convicted of misbehavior in office or of any infamous crime.”
In the course of the discussion of the section as it was at first presented before the committee of the whole, Judge Spruance said:
“That needs just one word of explanation. There are three ways of getting rid of an officer. One is, under these lines, on misbehavior in office, or any infamous crime, and the Governor shall remove that man, because it is his duty to do so. That means where he has been convicted on indictment of misbehavior in office or infamous crime. The next deals with removal on the address of the legislature; and then we have the third one, that of impeachment.”
“I find this provision in the Constitution of Pennsylvania, and it is a good safe one. Of course, a man does not want his day in Court, because he has had his day in Court, and he has been indicted and he has been convicted. That being so, he certainly ought to come out of office and the Governor ought certainly to remove him.”
*260 “There is only one thing more that I want to call your attention to and that is this, the presence of these words here, ‘shall hold their offices on condition that they behave themselves well while in office.’ Those words being there may enable us to strike out similar words that we have used repeatedly through the Constitution, as for instance, a judge should hold his office for twelve years if he shall so long behave himself while he is in office; and in several other places.”
“I want to show the gentleman a corresponding provision in the Pennsylvania Constitution, It says, that all officers shall hold their offices on condition that they behave themselves well while in office, and shall be removed on conviction of misbehavior in office or any infamous crime.”
“That is substantially the same as we have here, except we say who shall do it; that.the Governor shall remove on conviction.”
“And again, that the appointed officers other than the judges of a court of record and the superintendent of public instruction may be removed at the pleasure of the power by which they shall have been appointed.”
“That seems to be without any cause at ■ all. Of course, we do not want that.”
On May 11, 1897, the convention considered the section as contained in the report of the committee on phraseology and arrangement, and during the discussion Judge Spruance said:
“The next question is, by what methods, as provided in this proposed Constitution, can a man be turned out? Is this the only one mentioned in that Section? Oh, no. I think not.”
“All public officers shall hold their offices on condition that they . behave themselves well, and shall be remov'ed by the Governor on conviction of misbehavior in office or of any infamous crime. That is one way of doing it.”
“That means, as I understand, conviction in some criminal court of misbehavior in office, as for instance, of bribery in office, or of other corrupt conduct in office for which we have many statutes to meet the various cases; or it might be the case of a crime not connected, with the office at all, as for instance, a man may be convicted of a crime which by law is recognized as infamous crime, as larceny, or robbery, or any of those crimes. There would be no difficulty in discovering what were infamous crimes, and those in that connection are disconnected, or, at all events, they have no necessary connection with behavior in office. There are infamous crimes. That is so. But there are other ways of getting rid of public officers. As for instance, we turn to the provision on impeachment and treason (page 80). There is a provision that the House of Representatives shall*261 have the sole power of impeaching, the cause to be tried by the Senate.”
“And then again in Section 11 of that same Article, you find that the Governor and all other civil officers under this State shall be liable to impeachment for treason, bribery, or any high crime or misdemeanor in office. Judgment in such cases shall not extend further than to removal from office, and disqualification to hold any office of honor, trust, or profit, under this State; but the party convicted shall, never the less, be subjected to indictment, trial, judgment and punishment according to law.”
“In the case of impeachment, I think that a removal from office is always the penalty. Whatever else there may be as a penalty, aside from removal from office on conviction of impeachment, there is always that judgment of removal from office. That is one way.”
“Turn to Section 14, and you find another way, and that may or may not be for offenses committed in office, or for crimes not connected with the office, or for no crime at all, but for mere misfortune, for mere incapacity, or for unseemly conduct which does not reach a degree of crime of any sort, but more particularly, probably, would be applied to eases of mental or physical disability. The Governor may for any reasonable cause remove any officer, except the Lieutenant Governor and members of the General Assembly, upon the address of two-thirds of all the members elected to each House of the General Assembly. Whenever the General Assembly shall so address the Governor, the cause of removal shall be entered on the journals of each House. The person against whom the General Assembly may be about to proceed shall receive notice thereof, accompanied with the cause alleged for his removal, at least ten days before the day on which either House of the General Assembly shall act thereon. (Section 14 of Article 111).”
“So there seem to be those three means by which a man may be gotten rid of. The Section which we now have under consideration is almost automatic in its operation. If a man is convicted of misbehavior in office under this Section, that is, of infamous crime, (although Misbehavior in office may not necessarily be an infamous crime) why, thereupon, no such conviction shall be had except in a Court. That is a court trial, and, of course, there can be no conviction unless the man has had his day in Court. He has had a regular trial in the due course of law, and he has been convicted, whether of misbehavior in office or of infamous crime. That is the end of him, so far as that office is concerned. It is immediately made the duty of the Governor to remove him from office. That is all of that.”
“In case a man is impeached, of course an impeachment is always for some misconduct in office. That, I understand, is always the case for misconduct in office, of a greater or less degree. He has to appear before the Senate and the House of Representatives. If he is convicted, that ipso facto works a forfeiture of that office. He goes out of office. I think the judgment in the case of impeachment is always removal from office.”
*262 “We go to Section 14, and that is a ease which may cover misbehavior' in office, but more generally would cover the case of mental or physical incapacity; and then he is removed from office.”
Judge Bradford thought that the language of the section could be improved so as to do away with whatever doubt there might be as to whether a conviction of misbehavior was not a condition preceding the removal of an officer; and in answer Judge Spruance said, “The Governor cannot remove, certainly, except a man be convicted here, unless it be upon the address of the General Assembly,” to which Judge Bradford replied, “No, that is perfectly true.”
The section laid on the table until May 20, 1897, when during the debate on the alteration of the section as proposed by Judge Bradford, Judge Spruance said:
“Mr. President, I am not particular about this thing. The point raised by the gentleman from Christiana (Mr. Bradford) was this. He wanted to know whether as that section stood, there was not danger that a public officer could not in any other manner be removed; that is, except he be convicted of misdemeanor in office, or other infamous crime.”
“I thought not. I went on to show, if the gentleman from North Murder kill (Mr. Cooper) will give me his attention, that this was one of the causes of removal, towit, conviction of misdemeanor in office or of other infamous crime, that ipso facto the Governor would remove that man from office. But that there were other circumstances under which a man would just be removed, according to the conditions (and that is the reason we took out of another provision that the term should be so and so). We struck all that out and they were to stay so long as they should behave themselves well; and so that was the other circumstance under which he could be removed from office.”
“Another method or condition under which a man may be removed from office is on the address of two-thirds of the General Assembly to the Governor. The Governor may then remove a man from office — not that he ‘shall’ but he ‘may’. That might be a ease in which a man had misbehaved himself in office or had become incompetent physically or mentally; then he might he removed from office. This was another case where a man had been convicted in court, whom the Governor shall remove ipso facto, because he had had his day in court.”
“This might meet the views of those who think there should be a closer connection of the sentences, if we make the section read as follows: ‘All public officers shall hold their offices on condition*263 that they behave themselves -well. The Governor shall remove from office any public officer convicted of misbehavior in office or of any infamous crime.’ ”
The section as changed was then adopted.
The framers of the earlier Constitutions, among whom were men of learning and experience, of ability and foresight, well knew the “fury of' democracy.” They were acquainted with the evils that the colonists had suffered from the notorious abuses of power (see opinion of O’Brien, J., in Rathbone v. Wirth, supra), and the evils arising from arbitrary removals from office. They were not inattentive to the sharp and bitter controversy which arose in the first Congress with respect to the presidential power of removal from office. They were actuated by the belief that an uncontrollable power of removal in the Chief Executive was “a doctrine not to be learned in American Governments.” They believed “that one who holds his office only during the pleasure of another cannot be depended upon to maintain an attitude of independence against the latter’s will.” Humphrey’s Ex’r v. U. S., 295 U. S. 602, 55 S. Ct. 869, 874, 79 L. Ed. 1611.
When, therefore, the several provisions of those Constitutions with respect to tenure of office during good behavior, whether the office be for life or for a term of years, are considered in the light of history, and regard is had for the causes and methods of removal carefully stated and restated with respect to judges, justices of the peace and other public officers, both state and county, there is clearly discoverable the purpose and policy to preclude by the organic laws the removal of public officers except as provided by those laws, this to ban the exercise of arbitrary power, and to make the public service a desirable field for competent persons to enter.
The present Constitution shows a steady adherence to purpose and principle. Its framers were actuated by the
For these weighty reasons, based upon experience, and with deliberation, certain causes of removal and certain methods of removal were provided as the sole causes and the sole methods. Removal by impeachment if for cause. Removal upon the address of the General Assembly is predicated on cause. Conviction of misbehavior in office or of infamous crime is cause. Every provision in the organic law with respect to removal from office points straight at
If the respondent’s contention is sound, that the provisions of the Constitution with respect to removals from public office are not limitations on the legislative power, but that despite them, the Legislature still has the power to authorize the appointing power to effect removals from office for other causes or for no cause at all, then the constitutional provisions made applicable to all public officers are but empty phrases, and restraint upon the legislative power by implication is utterly denied. The result would be that, while the Legislature itself, under the express provision of the Constitution, may not even presume to address the Governor with respect to the desirability or necessity of removing a public officer except upon a two-thirds vote of all the members of each house, and, in that event, must enter upon their journals the cause alleged, and must give ten days to the officer of the cause and when each house will act thereon — all of which is to enable the officer to appear and defend himself against the alleged cause of removal— yet the Legislature may, by a bare majority, authorize the Governor to make removals, at least from appointive statutory offices, for no cause, or for other causes, and with no notice to. appear and defend. If the contention is sound, then by general act applicable to all statutory offices, at least to appointive offices, the Governor may be empowered to effect removals from office at his pleasure. The power would be read into every act creating such office. It would limit the term of every such office, and the officers would hold at the Governor’s will. It is the office of the organic law to protect the people against arbitrary power. Were it not for that consideration, Constitutions would have little place among civilized people.
The several provisions of the Constitution are to be regarded as limitations and restrictions on the legis
Counsel for the respondents call attention to many acts of Legislature creating offices with definite terms unless sooner removed by the Governor, or to serve at his pleasure, and to acts providing deputies for public officers’ removal at the will of their superiors. With respect to the latter, little need be said. They are subordinate clerks and assistants with no fixed terms. With respect to the former instances, the Board of Examiners of Barbers was created in 1901. Its provisions apply to the city of Wilmington. The Board of Examiners of Undertakers was created in 1911; the Portrait Commission, if the members thereof can be called public officers as they have no salary or compensation and are required to give no bond, in 1913; the Board of Budget Directors in 1931. The original act creating the office of regulator of weights and measures, an office in a real sense and one of great age, provided for a fixed term with no power of removal. It was not until 1931 that the tenure was made at the pleasure of the Governor. It appears, then, from the instances cited, that the only offices created by the Legislature and made appointive by the Governor for a fixed term “unless sooner removed,” are the members of the examining boards of undertakers and barbers. And, as said by Chief Justice Ames, in Taylor v. Place, 4 R. I. 324, if the unconstitutional exercise of power for so short a period were to weigh with the court in so plain a case, it must be upon the strange ground that an usurpation of power, in derogation of the Constitution, always, of itself, affords a constitutional justification for the usurpation.
The sole public office as to which the arbitrary power of removal is incidental is the office of secretary of state. By the first Constitution the term of this office was for five years “if he behave himself well.” By the Constitutions of 1792 and 1831, the appointee was commissioned during the Governor’s continuance in office, “if he shall so long behave himself well.” By the present Constitution, mindful of the intimate and confidential relations that ought to exist between the Governor and the secretary of state, it was provided that the appointee “shall hold office during the pleas
There is another provision of the Constitution that deserves consideration. By Section 9 of Article 3, the Governor is given power “to fill all vacancies that may happen during the recess of the Senate, in offices to which he may appoint, except in the offices of Chancellor, Chief Justice and Associate Judges, by granting Commissions which shall expire at the end of the next session of the Senate.” Let this case be supposed: A vacancy exists in the Industrial Accident Board during a recess of the Senate. The Governor makes an appointment to fill the vacancy, and issues to his appointee a commission the expiry of which is at the end of the next session of the Senate. After entering upon his duties, but before the Legislature convenes, the Governor, under the supposed authority of the act, removes his appointee. The language of the constitutional provision, unless its meaning is other than plain language conveys, affords protection. If the Governor may remove his appointee where there is no vacancy except as the vacancy is created by his act of removal, may he, having created the vacancy, and having supplied it by issuing a commission during the Senate’s recess, create another vacancy in the face of the constitutional provision. The illustration serves to show the difficulties to be encountered when a departure from the provisions of the Constitution respecting removals from office is attempted.
Before proceeding to an examination of the cases relied upon by the respondents, certain other considerations advanced by them will be noticed.
The remarks of the members of the convention during the progress of the debates on Section 6 of Article 15 were especially directed to the mischiefs to be guarded against and the purpose sought to be accomplished; and, in particular, did it appear that an uncontrollable power of removal from office in the Governor was not wanted.
The respondents rely upon certain expressions in the opinion of the court en banc, in State v. Burris, 4 Penn. 3, 49 A. 930. The relator had been appointed to the office of state detective for a term of four years. Before the expiration of the term, the General Assembly repealed the
The argument on the part of the relator was that the repealing act was void in that the abolishment of the office deprived him of his salary for the residue of his term, and thereby diminished his salary, contrary to Section 4 of Article 15 of the Constitution, reading, “No law shall extend the term of any public officer or diminish his salary or emoluments after his election or appointment”; and that the repealing act was void in that it was not a bona fide attempt to abolish the office. It was in this connection that the court said that it was not the function of the court to pass upon the motives of the Legislature in the discharge of its duty; that offices created by the Legislature were entirely within legislative control; that unless there was some constitutional limitation, such offices might be modified, abridged or abolished as the Legislature saw fit; and that the only limitation as to the term of office was that, “no law shall extend the term of any public officer,” the inherent power of the Legislature to abridge the term or to abolish the office being left untouched. The court did not, even remotely, pass upon the question whether the legislative power with respect to removal from a statutory office, with a fixed term, was constitutionally limited by implication.
The respondents contend that the relator is estopped to invoke the constitutional question for the reason that the incumbents who were removed accepted their appointments and have exercised the functions of the offices under the .provisions of the statute. No authority has been cited holding that one, by the acceptance of an office with a fixed term, may not question the constitutionality of a provision of the act creating the office with respect to arbitrary removal of incumbents of the office. From an examination of the cases cited generally by the relator and
The respondents contend, also, that the first sentence of Section 6 of Article 15, “All public officers shall hold their offices on condition that they behave themselves well,” cannot be construed as a limitation on the legislative power. It is asserted that this provision was borrowed from the Constitution of Pennsylvania, but as the provision of that Constitution confers the power of removal in certain cases, it is manifest that the same provision in our Constitution is only a limitation on the right of an officer to hold his office to the end of a fixed term. The provision was not borrowed from the Constitution of Pennsylvania. It is as much our heritage as of the people of that state. As has been shown, it appears in the Charter of Delaware of 1701 with respect to sheriffs and coroners, in the Constitution of 1776, with respect to judges, clerks of the Supreme Court
The decisions of the federal courts with respect to the power of the President to effect removals from office ought not be regarded as controlling. The Federal Constitution is silent with respect to removals from office where the tenure is not fixed as it is in the case of the federal judges. It has already been shown that the power of the President to effect removals from office came into existence as a result of the celebrated “congressional construction” of the Constitution in 1789. In Humphrey’s Ex’r v. U. S., supra, the supposed extent of the presidential power was limited. Expressions suggesting that a Governor of a state may constitutionally be given an arbitrary power of removal as incidental to his duty to enforce the laws may sometimes be found, as in McCran v. Gaul, 95 N. J. L. 393, 112 A. 341, infra. See however, the observations of Kalisch, J., dissenting in the same case in the Court of Appeals, 98 N. J. L. 165, 112 A. 603, at page 609. In general, it is to be said that Governors of states do not exercise the arbitrary power accredited to the President. When exercised it is by virtue of specific constitutional provision, or by statute where no limitation of the legislative power exists.
It is contended that the rule expressed by the maxim, “Expressio unius est exclusio alterius,” does not apply with the same force to a Constitution as to a statute.
But as Constitutions must necessarily be general rather than detailed and prolix, many of the essentials with which they treat are impliedly controlled or dealt with by them, and implication plays a very important role in constitutional construction. Accordingly, resort may be had to the well-recognized rule contained in the maxim, and the expression of one thing in a Constitution may necessarily involve the exclusion of other things not expressed. 11 Am. Jur. 666, 667; 12 C. J. 707; Page v. Allen, supra. Judge Cooley expresses the rule in language that is widely quoted: “When the constitution defines the circumstances under, which a right may be exercised or a penalty imposed, the specification is an implied prohibition against legislative interference to add to the condition, or to extend the penalty to other cases.” 1 Cooley, Const. Lim. 139, and cases cited in extensive note. See State v. Brunk, 326 Mo. 1181, 34 S. W. 2d 94; 46 C. J. 985. Shurtleff v. U. S., 189 U. S. 311, 23 S. Ct. 535, 537, 47 L. Ed. 828, it is true, was concerned with a statutory provision which provided that mercantile appraisers might be removed at any time by the President for inefficiency, neglect of duty, or malfeasance in office. Shurtleff was removed without assignment of cause. The
The framers of the Constitution of 1897 considered the growing necessity for the creation of additional public officers by the Legislature as the reach of the government widened and became more complex. The several provisions of the former Constitutions with respect to removals from office were made applicable to all public officers. In State v. Churchman, 3 Penn. 167, 49 A. 381, the superior court held that the judge of the municipal court for the city of Wilmington, was an “officer” requiring confirmation by the Senate under Section 9, of Article 3, of the Constitution. The Supreme Court, State v. Churchman, 3 Penn. 361,- 51 A. 49, 50, held that the section was not comprehensive of municipal officers, and said, “It cannot be doubted, as a general proposition of law applying to the construction of statutory and constitutional provisions alike, that the words ‘offices’ or ‘officers,’ taken by themselves, in a statute or constitution, mean state or county ‘offices’ or ‘officers’ only.” And, there is nothing in the opinion to sug
Ordinarily, where 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 the office. The Constitution of a state may, however, place beyond the reach of hostile legislation the method and grounds for removing incumbents of public offices; and where the Constitution prescribes the method of removal and causes for which public officers may be removed, the method and grounds established by this instrument are exclusive, and it is beyond the power of the Legislature to remove them for any other cause or in any other manner. 22 R. C. L. 561; 46 C. J. 985; 23 Ency. Law, 2d Ed., 431. In Throop on Public Officers, § 341, it is said, “it is well settled, that where the Constitution creates or recognizes an office, and declares that the incumbent may be removed in a specified manner or for specified reasons, the legislature cannot constitutionally provide by statute for his removal for any other reason or in any other manner.”
From what has already been said, the Constitution with respect to the reasons and manner of their removal, recognizes alike all public officers; and authorities dealing with removals from offices of constitutional creation are applicable.
The Constitution of Pennsylvania, as has been shown, provides that appointed officers, with certain exceptions, may be removed at the pleasure of the appointing power. In Commonwealth v. Hoyt, 254 Pa. 45, 98 A. 782, 784, a statute of Pennsylvania provided for certain causes of removal of inspectors of weights and measures appointed by county commissioners. It was held that the statutory provision was in conflict with the Constitution. The court said: “It is entirely settled that when the Constitution has de
In Falloon v. Clark, supra, the proceeding involved the removal from office of a district judge, a constitutional officer. It was held that such officer could not be removed from office upon other grounds or by other methods than those prescribed by the Constitution. The court said, “It must be conceded that, in the absence of constitutional provision or limitation, the legislature would have complete power and discretion to provide by statute for the removal of public officers; but, where the constitution plainly prescribes the grounds and methods of removal, it must be regarded as the paramount law, and not subject to be directly or indirectly changed or nullified by legislative enactment.”
In re Bowman, 225 Pa. 364, 74 A. 203, 204, involved the constitutionality of a statute authorizing the courts of common pleas to declare vacant the office of a justice of the peace, a constitutional office, on the failure of the incumbent to reside for six months in his district. Section 4 of Article 6, of the Pennsylvania Constitution, hereinbefore quoted, was considered. The court said, “The condition upon which all officers shall hold their offices, whether conferred by appointment or secured by election, is good behavior. Removal is the penalty for misbehavior. This is the substance and meaning of the first sentence of the fourth section”; and it proceeded to say with respect to the provision that certain officers elected by the people, “shall be removed by the Governor for reasonable cause, after due notice and full hearing, on the address of two-thirds of the Senate.”
“A constitutional direction as to how a thing is to be done is exclusive and prohibitory of any other mode which the Legislature may*278 deem better or more convenient. As the people have spoken directly in adopting their organic law, their representatives in General Assembly met are at all times bound in undertaking to act for them, and what is forbidden, either expressly or by necessary implication, in the Constitution, cannot become a law. * * * As a constitutional judicial officer, elected by the people, he is to be removed from his office only by the Governor for reasonable cause after due notice and full hearing, on the address of two-thirds of the Senate, for, though others filling purely legislative offices may be without the constitutional provision as to removal, he is clearly within it.”
In Holliday v. Fields, 210 Ky. 179, 275 S. W. 642, 647, the respondent was removed from the office of sheriff by executive order pursuant to a statute attempting to include malfeasance and misfeasance as constituting a neglect of official duty. The Constitution, as amended, provided for the removal of certain officers for neglect of duty. The court, in setting aside the order, said, “By the constitutional amendment the Legislature is only authorized to provide for the removal of the officers named for neglect of duty, the statute must be read in the light of the power conferred. It appears from the title and the nature of the offenses denounced in the act that the Legislature attempted to include ‘malfeasance’ and ‘misfeasance’ as constituting neglect of official duty. To some extent it thus exceeded its power. While the Legislature may designate offenses within the meaning of the constitutional words, it is well settled that it cannot enlarge or extend the terms of that instrument by defining its words or by adding offenses not included therein.”
In Lowe v. Commonwealth, 3 Metc. 237, 60 Ky. 237, with respect to the constitutionality of a statute authorizing county courts to suspend jailers, as violative of constitutional provisions relative to impeachment of all civil officers and rendering vacant certain offices whose incumbents had been convicted of enumerated offenses, the court said, “There can be but one view of this question, which is, that whenever the constitution has created an office and fixed its term, and has also declared upon what grounds and in
Page v. Hardin, 8 B. Mon. (47 Ky.) 648, is worthy of careful consideration. Hardin had been appointed secretary of state under a constitutional provision fixing the term, “during the term for which the governor shall have been elected, if he shall so long behave himself well.” Const. Ky. 1799, Art. 3, § 24. The Governor removed him for failure to reside at the seat of government and neglect of duty. The Constitution provided for the impeachment of all civil officers; for the removal of judges and justices of the peace for any reasonable cause not being sufficient ground of impeachment, upon address to the Governor by two-thirds of each house of the General Assembly; and for removals of clerks of court by the Court of Appeals for. breach of good behavior. The pertinent parts of the opinion are too long to
In Dullam v. Willson, 53 Mich. 392, 19 N. W. 112, 51 Am. Rep. 128, the respondent had been appointed one of the trustees of a state institution for a term of six years. During the term he was removed by the Governor, without notice or hearing, for alleged official misconduct and neglect of duty. The removal was made under the provisions of a statute enacted prior to the Constitution of 1850, and by it
It was held, first, that the statute furnished no valid basis for the power of removal, because it was repugnant to the Constitution of 1835, which vested no judicial power in the Governor, and was not validated by the Constitution of 1850 as amended; second, that the Governor’s power of removal could only be exercised for the specific causes mentioned in the Constitution, and upon charges which should specify the particular acts or neglects relied on; and that the Governor was not authorized to exercise the power at his pleasure or caprice.
In People v. Howland, 155 N. Y. 270, 49 N. E. 775, 777, 41 L. R. A. 838, it was said of the constitutional office of justice of the peace, “Not only is the office itself placed beyond the reach of hostile legislation, but also the term
Lizano v. City of Pass Christian, 96 Miss. 640, 50 So. 981, 982, holds that constitutional restraints on legislative power with respect to removals from office apply to offices of statutory origin. The Constitution provided that all public officers, for willful neglect of duty, or misdemeanor in office, shall be liable to presentment or indictment by a grand jury, and upon conviction, shall be removed from office, and otherwise punished as may be prescribed by law. The appellant, a city marshall, was removed from office by the municipal authorities purporting to act under a city ordinance authorized by the Code, without indictment or conviction. The court, in reversing the judgment of the circuit court, first held that the city marshal was a public officer within the meaning of the constitutional provision; and in answer to the contention advanced that since the city marshal was not a constitutional officer, certain authorities cited had no application, the court said, “We do not think there is anything in this contention. Section 175 applies to ‘all public officers,’ and the city marshal is certainly a ‘public officer,’ within the meaning of the Constitution.”
In Ware v. Poole, 111 Miss. 599, 71 So. 868, 870, the court decided the question presented as one of statutory construction, and said that it was not necessary to harmonize the statutory method of removal with Section 175 of the State Constitution. It said, however, of the statute which purported to authorize the State Board of Health to remove a county health officer, an office with a term of two years, at any meeting and fill the vacancy thereby occasioned, “certain it is that the Legislature never intended that one of our public officers should be thrust out of office without any reason whatever. The humblest employe in the private walks of life, with a definite contract of employment for a stated period of time, could not thus summarily be
In Williams v. State, 197 Ala. 40, 72 So. 330, Ann. Cas. 1918D, 869, a statute, creating a commission form of government for the city of Mobile, established the office of commissioner with a term of three years. By another section provision was made for the recall of any commissioner during the term of office by an election to be held for such purpose. Section 175 of the Constitution provided for the causes and methods of removal of all officers of incorporated cities and towns. It was held, following Nolen v. State, 118 Ala. 154, 24 So. 251, that the inhibitions of the Constitution must be read into all statutes, and when so read into the statute in question, they rendered inoperative the recall provisions. See, also, Owens v. Troy, 229 Ala. 439, 157 So. 865.
Other authorities in general support of the rule that the legislative power over removals from office may be restrained impliedly by constitutional provisions, are State v. Kohler, 200 Wis. 518, 228 N. W. 895, at page 907, 69 A. L. R. 348; Reid v. Smoulter, 128 Pa. 324, 18 A. 445; 5 L. R. A. 517; State v. Superior Court of Pierce County, 92 Wash. 375, 159 P. 84; Laverty v. Cochran, 132 Neb. 118, 271 N. W. 354; Com. v. Williams, 79 Ky. 42, 42 Am. Rep. 204; In re Georges Township School Directors, 286 Pa. 129, 133 A. 233; State v. Gravolet, 168 La. 648, 123 So. 111; State v. Dunson, 138 La. 131, 70 So. 61; Conroy et al. v. Hallowell, 94 Neb. 794, 144 N. W. 895. In 99 A. L. R. 336, is an extensive note in which the cases involving the power to remove a public officer are collected.
The authorities relied upon by the respondents will be examined.
In People v. Dreher, 302 Ill. 50, 134 N. E. 22, 24, the mayor of a city was removed from office by the city council for alleged misconduct. The statute regulating removals of municipal officers was not complied with, and the action of the city council was set aside. The court distinctly said that there was “no prohibition or limitation in the Constitution of this state on the power of the Legislature to prescribe the means by which officers, other than judicial officers, below the grade of state officers, may be removed from office. That power, therefore, rests entirely in the hands of the Legislature.” There being no limitation on the power of removal with respect to the office, the power necessarily reposed in the Legislature.
Sweeney v. Stevens, 46 N. J. L. 344, involved the right of the freeholders of a county to remove a jailer. The language of the court, general in its nature, with respect to the power of the Legislature, in creating an office, to provide for the manner of its vacation, should be considered in the light of the Constitution of the state which, apart from the usual provision for impeachment of officers, makes no provision whatever for the removal of officers not even upon the address of the Legislature.
The same comment may be made with respect to McCran v. Gaul, 95 N. J. L. 393, 112 A. 341. There the respondent was removed from office as a member of the Board of Public Utility Commissioners, for misconduct in office and neglect of duty, pursuant to authority conferred upon
The court was careful to say at the outset that the policy of conferring upon the governor the power of removal for cause of statutory officers appointed for a fixed term was not a new one, and had been exercised many years before the passage of the statute before the court, and frequently since.
Trainor v. Board of Auditors, 89 Mich. 162, 50 N. W. 809, 15 L. R. A. 95, involved the removal by the Board of Auditors of a county, of a city physician, a special officer in justice courts, a chief janitor of county buildings and a file clerk of county records. The court distinctly said that the positions did not “attain to the dignity of an office.” “They are not officers, but employees. * * * Quo warranta would not lie for any of them.” An examination of the Constitution of the state would seem to indicate that there was no limitation on the legislative power with respect to removal from office except in the case of judges.
Sims v. Moeur, 41 Ariz. 486, 19 P. 2d 679, 681, is not opposed. There, the. Governor preferred charges against members of the Industrial Commission and, after hearing,
Taft v. Adams, 3 Gray (69 Mass.) 126, involved a statute which shortened the term of a county commissioner. Chief Justice Shaw, after stating that where an office is created by law, and one not contemplated, nor its tenure declared by the Constitution, but created by law solely for the public benefit, it may be regulated, limited, enlarged or terminated by law, as the public exigency or policy may require, proceeded to say of the office in question, “Their mode of appointment or election has been fixed, their tenure of office established, their powers restrained or enlarged, by the operation of successive laws, and at each of these changes many of those who were previously in office, for certain or uncertain terms, were necessarily divested of those offices. These changes by force of law have been acquiesced in. And we are of opinion that the act in question, changing the time and mode of choosing county commissioners, and which seems to have been waranted by a long course of precedents, in regard to a class of officers nearly analogous, was not beyond the constitutional authority of the legislature.” The question was not one of removal from office by the appointing power; but in this connection it is to be said that the Constitution of Massachusetts, apart from impeachment provisions, is silent as to removals from office except in the case of judicial officers and notaries public who may be removed by the Governor, with the consent of the council, upon the address of both houses of the Legislature.
In State v. Kipp, 10 S. D. 495, 74 N. W. 440, 442, the office involved was the statutory office of commissioner of insurance, made appointive by the Governor for the term of two years, “unless sooner removed by him.” The respondent was removed apparently without cause. Section 3 of Article 16 of the Constitution provided for the impeachment for enumerated causes of the Governor and other state and judicial officers with certain exceptions. Section 4 provided, “All officers not liable to impeachment shall be subject to removal for misconduct or malfeasance or crime or misdemeanor in office or for drunkenness or gross incompetency, in such manner as may be provided by law.” The respondent contended, first, that he was a state officer, and could only be removed by impeachment, second, if not a state officer, he was included within the term, “all officers”
In the immediate connection, State v. Mitchell, 50 Kan. 289, 33 P. 104, 20 L. R. A. 306, has no bearing. It will be considered later in the discussion of the question of statutory construction. The Constitution of the state provided, “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.” Article 15, § 2. Apart from impeachment proceedings, the Constitution appears to contain no provision for the removal of .public officers.
Also, in the immediate connection, there is no pertinency in the case of State v. Burke, 8 Wash. 412, 36 P. 281. It is distinctly stated in the opinion of the court that the appellant did not attack the statute on constitutional grounds, and that the court did not consider the constitutional ques
The cases most strongly relied on by the respondents are Townsend v. Kurtz, 83 Md. 331, 34 A. 1123, 1124, and two North Dakota cases, State v. Archibald, 5 N. D. 359, 66 N. W. 234, and State v. Prater, 48 N. D. 1240, 189 N. W. 334.
In the Maryland case, the office involved was the chief officer of the insurance department, known as insurance commissioner. The statute provided for the appointment of such officer by the Governor, treasurer and comptroller for a term of four years unless sooner removed by the officers making the appointment. The relator was removed during his term of office for no cause shown, and without notice or hearing. As stated by the court, the real question was whether the statute was to be construed as to limit the power of removal to one for cause. In the course of its opinion the court said, “but it is also true that the legislature has the undoubted right to authorize the appointing power to remove its appointees without assigning any cause, when they are appointed under statutory laws.” This expression is seized upon to support the position of the respondents, but what was said must be considered in the light of the Constitution of the state. By Section 13 of Article 2 it was provided that all civil officers appointed by the Governor and Senate “shall be nominated to the Senate; * * * and their term of office, except in cases otherwise provided for in this Constitution, shall commence * * * and continue for two years, (unless removed from office).” By Section 15, the Governor was empowered to “remove for incompetency or misconduct, all civil officers who received appointment from the Executive for a term of years.” By Section 22, it was provided that a secretary of state be ap
Separate and distinct provisions were made for the compulsory retirement of judges for certain reasons; and for their removal, on conviction of certain offenses and crimes, or on impeachment, or on the address of the Legislature, upon notice and hearing. Separate provision was made for the removal of the clerk of the court of appeals, clerks of the circuit courts, registers of wills, justices of the peace and constables, the Attorney-General, state’s attorneys, comptroller, treasurer and mayor of the city of Baltimore. There was no general removal provision applicable to all public officers and, it will be noted that the office in question was of special statutory creation, not appointed by the Governor with the consent of the Senate, but by the Governor, treasurer and comptroller. The court proceeded to say that as the statute made no express declaration with respect to the cause of removal, the question would be approached from the standpoint of the language used, of the provisions of the Constitution and other statutes with reference to the removal of officers, and of the history of the law establishing the office. It appeared that, originally, the comptroller was directed to assign a clerk in charge of the insurance department, who should hold his office during the term of the comptroller making the appointment unless sooner removed by the comptroller, and, as the court said, the officer was a mere subordinate. The court then proceeds to say that there was little doubt that the comptroller could have removed the clerk at any time, and asks why the Governor, comptroller and treasurer in whom the power of removal was vested in identical lan
State v. Archibald, 5 N. D. 359, 66 N. W. 234, 242, involved the removal of the superintendent of the State Hospital for the Insane. The board of trustees was authorized to appoint a superintendent and to remove him at pleasure. No term of office was fixed by the statute. The respondent was appointed to the office for the term of one year, but was removed before the expiration of the term. A by-law adopted by a former board provided for removal upon charges in writing and upon notice. The court said that the by-laws were to be construed in the light of the power of removal vested in the board, which was an absolute power and one not to be prejudiced by any limitation imposed thereon by a by-law. It was urged that the office came within the protection of Section 197 of the Constitution, providing that, “All officers not liable to impeachment shall be subject to removal for misconduct, malfeasance, crime or misdemeanor in office, or for habitual drunkenness or gross incompetency in such manner as may be provided by law.” The court conceded the office to be one within the constitutional provisions, but said that as the Constitution did not declare that the officers therein referred to could not be removed in any other way, they could be removed for other causes, or without cause, if the Legislature so declared, provided the offices were statutory offices. The question decided was that where no term of office is fixed, the power of arbitrary removal is vested in the appointing power as an incident to the power of appointment; for, it was said, “Section 197 of the constitution has not taken away or impaired the power of the legislature to provide that any officer whose office is created by the legislature
The relator, to some extent, relies on Humphrey’s Ex’r v. U. S., supra. That case is not a direct authority for his position. The point there decided was this, that. notwithstanding the “congressional construction” given to the Federal Constitution in 1789 relative to the power of the President to effect removals from office, and the decisions of the Supreme Court containing expressions that would seem to withhold from Congress all power to control the President in the exercise of his arbitrary power of removal, yet there were offices, not purely executive in their nature, but clothed with quasi judicial functions, over which the power of Congress to control arbitrary removals therefrom might be exercised; and that the office of federal trade commissioner was such an office.
The underlying philosophy of the decision is in support of the relator’s position. It was there said that “the fundamental necessity of maintaining each of the three general departments of government entirely free from the control
The Industrial Accident Board is a court created to hear and determine a class of cases over which it is given jurisdiction. Its functions are of a judicial character. Bethlehem Shipbuilding Corp. v. Mullen, 2 W. W. Harr. (32 Del.) 55, 119 A. 314. The members of the board ought not to be subjected to the remostest influence of the Executive. If the contention of the respondents is to be accepted, there is no reason why the judge of the municipal court of the city of Wilmington, the judges of the courts of common pleas of New Castle and Kent counties, and the judges of courts and members of judicial agencies which may be established by the Legislature may not be made subject to removal without cause by the appointing power. If such is the meaning of the Constitution, while the lowliest justice of the peace in the most remote, village is protected in the right to hold his office except as he may give cause for his removal, yet the members of the Industrial Accident Board, who exercise a jurisdiction of the greatest importance may be removed from the judicial, or quasi judicial offices, without cause. Such result was not within the contemplation of the framers of our Constitution.
The question of statutory construction is next to be considered.
The language of the act is clear, precise and without ambiguity. The first appointments to the offices were to be made for two, four and six years, respectively, and thereafter, definitely, for six years. The purpose of the staggered appointments was, as is evident, to guard against a board of inexperienced persons. See Wentz v. Thomas, 159 Okl. 124, 15 P. 2d 65; Humphrey’s Ex’r v. U. S., supra. To construe the term of office as one at the pleasure of the Executive would be to ignore the very rules of construction which the respondents themselves invoke. The language of the act with respect to term of office cannot be ignored. It must be given effect if possible, and it is possible. Indeed, there is no difficulty whatever. An office with a fixed term is created,
Townsend v. Kurtz, supra, strongly relied on by the respondents in support of the constitutional question presented, refutes their argument upon the question of statutory construction. There it was contended, as here, that the tenure of the office was not for a fixed term, but that it was of uncertain and indefinite duration, the incumbent being removable at the will of the appointing power. “But,” said the court, “it would seem that under the very terms of the statute the tenure of this office is not for such an indefinite term as that. The statute says he shall be appointed ‘for the term of four years,’ and that he ‘shall hold his office during the term for which he is appointed, or until his successor is appointed and qualified, unless sooner removed by the governor, treasurer, and comptroller.’ We will have to. discuss later on the effect of this power of removal, but it cannot properly be said that the appointment is not originally for a definite term, although subject to removal by the action of all of the officers above named. It is true, he may not hold the office four years by reason of death, resignation, or his removal, if done in the way authorized by law, but that is the time designated by the statute for which he shall hold it, subject to those contingencies. It is therefore distinguished from that class of cases in which
In Williams v. State, supra, on rehearing, 197 Ala. 40, 72 So. 330 at page 338, Ann. Cas. 1918D, 869, the Chief Justice said, “The minority seem to proceed upon the theory that the recall feature of Acts 1911, p. 345, § 14, operates upon the term and cuts down a fixed term of three years, as fixed by Sections 4 and 10, to an indefinite or unfixed term, but not to exceed three years. If this construction could be given the act, we are willing to concede the soundness of the conclusion of the minority. The majority, however, think that the recall, as provided by Section 14 of the act, relates only to the incumbent and not the term, and that the statute is so plain in this respect that there is nothing to interpret.”
The respondents rely on State v. Burke, supra, and State v. Mitchell, supra.
In the Mitchell Case, the respondent had been elected by the executive council to the office of railroad commissioner for a term of three years. The statute provided for the election of three commissioners, the terms of the first appointees to be for one, two and three years respectively, and thereafter for three years, but subject to removal at any time by the council. Before the expiration of his term, the respondent was removed. He contended that his term of office had been declared by the statute to be for three years; that his term had not expired; and that under the Constitution of the state he had not been legally removed. The Constitution provided that the tenure of any office not therein provided for might be declared by law, and when not so declared, such office should be held during . the
The authorities cited by the respondents give little support to their view of the proper construction of the statute. Its language is so plain and understandable that the average intelligent mind can grasp its meaning. The respondents’ dilemma is this: All of the language of the statute must be given meaning and effect, if it is possible to do so; and under this rule, the statute is not to be construed as creating the offices in question with an indefinite term, that is, at the pleasure of the Governor. It is to be construed, as it plainly reads, as creating offices with fixed terms of six years, but with an arbitrary power of removal vested in the Governor. The Legislature may create an office. It may fix the-term of the office. But, having created an office with a fixed term, the Constitution, by necessary implication, forbids the Legislature to confer upon the Governor the power arbitrarily to remove therefrom an incumbent of the office who has been duly appointed, commissioned and confirmed.
The removal clause contained in the second paragraph of the section of the statute, Section 116, c. 233, vol. 29, Del. Laws, as amended, Section 6093, Rev. Code 1935, must fall. The members of the Industrial Accident Board, whose removal from their offices has been attempted by executive order, are entitled to hold their offices until the expiration of the terms for which they have been appointed,
Judgment of ouster must, therefore, be entered against each of the respondents; and it is so ordered.
Speakman, J., concurs.
Rodney, J., dissents.
Dissenting Opinion
I find myself unable to agree with the majority of the court and shall, but briefly, give my reasons. Dissenting opinions do not express the law of the case then under consideration and, therefore, have but little weight. I do not flatter myself that my views, where they differ from the opinion of the court, have particular value, but a proper regard for the importance of the question requires that I briefly give the reasons for my dissent.
On April 2, 1917, the Delaware Workmen’s Compensation Law was approved and became effective. 29 Del. Laws, c. 233. It provided that the Governor should appoint three members to constitute the board. These members were originally appointed for terms of two, four and six years respectively, and the act further provided that as the terms of office expire by death, resignation, removal from the state or otherwise, that appointments should be made for terms of six years each. The act then provided “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.” Section 116, as amended, Rev. Code 1935, § 6093.
It is in this last sentence “The Governor may remove any member of said Board with or without cause” that all the difficulties of the case are to be found.
The defendants contend that there is no fixed term but since the Governor can under the act remove with or without cause that the term is at the will of the Governor, with a maximum of six years in case the Governor has not exercised his right of removal.
In determining between the views of the parties there are two primary and commanding rules of statutory construction that must be considered.
(1) Where an act is fairly susceptible of two constructions, one of which will uphold the validity of the act while the other will render it unconstitutional the one which will sustain the constitutionality of the law must be adopted.
(2) It is a cardinal rule that significance and effect shall, if possible, be accorded to every section, clause, word or part of the act.
No citation of authorities in support of the foregoing rules can possibly be needed, but it is merely necessary to apply the rules.
The relator contends that the fixed term of six years must prevail, but if that be true then the provision that “the Governor may remove with or without cause” must be entirely stricken from the act or from any consideration. This I think violates both rules of construction as above set out.
The defendants contend that the removal by the Governor is an express evidence of the legislative intent and that the term of six years was an expression of a maximum term in case the will of the Governor as to removal was not exercised. The adoption of this construction gives full force and effect to both rules of construction. All words are given
The relator contends, however, that the Legislature is without power to give to the Governor the right to remove “with or without cause,” and this question must now be briefly considered.
In the system of government such as we enjoy in Delaware all rights inhere in the people. Under the Federal Constitution the national government possesses only the powers and can exercise only the rights which are expressly or implicitly given in the Constitution. All rights not given by the Federal Constitution are reserved to the states. This principle is only partially true in our state government.
Our state government consists of three co-ordinate branches, the executive, the judicial and the legislative. The executive and judicial branches draw their power from the Constitution and as to them the Constitution, like the Federal Constitution, is a grant. of power. The legislative branch of the state government, however, represents the sovereign power of the people and as to it the Constitution is not a grant of power but merely a limitation.
The legislative branch is the organized body of the people in general, and has all the powers inherent in the people except in so far as it is limited by the Constitution: it represents the great residuum of power which is only limited by the express terms of the Constitution by plain implication.
The right of the Legislature to create the Workmen’s Compensation Board is, of course, admitted. In State ex rel. McVey v. Burris, 4 Penn. 3, 49 A. 930, 931, it is said: “It is well settled that offices created by the legislature are entirely within legislative control. * * * Unless there be some constitutional limitation, such offices may be modified, abridged, or abolished as the legislature may see fit.”
As there is no express limitation in the Constitution on the power of the Legislature in the matter under discussion, so I find no implied limitation. It is certain that the Legislature has, a number of times, created offices and given the appointing power to a specified person, leaving to that person full power to regulate or remove the officer. Pointing to only one instance it appears that at the session of the Legislature next following the creation of the Workmen’s Compensation Board (viz. 1919) the Legislature authorized the Attorney-General to appoint five important officers, viz.: A chief deputy and four other deputies. As to one it was expressly provided that he should hold office “at the pleasure of the Attorney-General.” As to the others it was provided that “the term of office and the duties by them to be performed shall be determined and fixed from time to time by general or special appointments, regulations, and orders made by the Attorney-General.” 30 Del. Laws, c. 48.
Here was a plain case of right of removal and it is a curious coincidence that, under the act just cited, among the first appointments as deputies by the Attorney-General with plenary power to regulate the term of office and to remove, one was the present Attorney-General who now is the relator, and two others have direct connection with the solution of the present question.
The very act now under discussion, Workmen’s Compensation Law, when it was originally presented in the Legislature provided that the board should be appointed by the court and that the court had the power to remove the mem
If it be assumed then that the Legislature could validly grant to an Attorney-General the right to fill offices and to remove the incumbents “with or without cause,” and if the Legislature could validly grant to a court the right to appoint members of the Industrial Accident Board and the right to remove “with or without cause” (as was the present act as originally introduced), then I see no new and sudden unconstitutionality when the appointing power is changed to the Governor. The Governor represents the highest office in the gift of the people of a state. Is it to be assumed by some mere inference or implication that he is to be reduced below the level of any other appointive power in the state, and that the Legislature is without authority to grant to the Governor some special grant of power of removal which it can grant to any other appointive power in the state? To me this is so contrary to reason as only to be supported by an express constitutional provision or inescapable inference.
To me it seems that the powers of the Governor to make appointments and the provision as to his removal of officers as expressly set out in the Constitution, represent the irreducible minimum from which the Legislature can in no way detract. The powers as to the removal of officers vested by the Constitution in the Governor are grants of power to the Governor without which the Governor would have no power to remove at all. Without these provisions the Legislature alone would have plenary power by the Constitution to authorize any removal at any time it saw
It has been suggested by the majority opinion that if a vacancy on the Industrial Accident Board should happen during a recess of the Senate that, in such case, the Governor would appoint a successor pursuant to the provisions of Article 3, § 9, by granting a commission which would expire at the next session of the Senate. Inference is then drawn that the Governor could not remove such appointee except in the manner provided by the Constitution, and it is concluded that, during the recess of the Senate, the Governor can make no appointments except by granting commissions to expire at the next session of the Senate. Such argument, of course, has force in ordinary offices of fixed terms and in the present case would be material if the members of the Industrial Accident Board held fixed terms.
The argument loses its force when applied to an office at will or at pleasure, and this may best be shown by the analogous constitutional provisions concerning the secretary- of state. By Article 3, § 10, the Governor appoints, with the consent of the Senate, a secretary of state “who shall hold office during the pleasure of the Governor.” If a vacancy occurred in the office of secretary of state immediately upon the adjournment of the Legislature could it reasonably be argued that the succeeding appointee would
In my opinion the entire provision concerning commissions to fill vacancies expiring at the next session of the Senate has applications to vacancies in offices for fixed terms and has no application to either constitutional or statutory offices where the term is one at pleasure or at will.
I am of the opinion that the plain and explicit will of the Legislature as expressed in the act under discussion, by the language “The Governor may remove any member of said Board with or without cause” Rev. Code 1935, § 6093, must and should be given consideration; that under said act the Governor had the right to remove those officers which he did remove. I am further of the opinion that the statute was a valid exercise of legislative power.
Any belief that I might, personally, hold as to the advisability or inadvisability of a statute giving to a Governor the right to remove without cause has nothing whatever to do with the present matter, and is entirely separate and distinct from its legal aspect.
