State Ex Rel. James v. Schorr

rules. See present under the unnecessary equally 416. It is A. ques- it is a Indeed serious Superior Court. Rules of the Form law, years capable whether, of of child as matter 4% tion et seq. 107 A.L.R. Annotation contributory negligence. of of point in disposing unnecessary it is to decide But motion. summarize, Declaration first count of the

To Judith’s expressed. The second for the reasons action cannot be sustained count, however, theory not upon although good, nuisance doctrine. attractive necessarily been disposes

What has heretofore said Weinberg in the case Samuel counts one and two demurrers to The The first count must fall. second against these Defendants. but under attractive sets forth a cause of action not good nuisance doctrine. contributory

The negligence question may may jury depending suit submitted Judith event, trial In Judge. view the upon question all, if jury her submitted to a at should be measured negligence judgment level of of a intelligence child extreme In years, Samuel, immature not that of an adult. ly case of contributory will negligencе necessarily passed by the upon jury. Delaware, Upon the relation of Albert W. Below, Attorney-General, Relator

James, Plaintiff Sigmund Leroy Error, Schorr, F. Hawke, F. John Newell, Cooch, Wilds, Leland Thomas Ryon, Leon H. William K. E. Pennington, Brown, L. James James Brown, W. Foreman Tatnall, Walter G. John Below, Defendants Error. Respondents Chancellor, J., dissenting. Harrington, Terry,

(September 1948.) Terry, Richards, Chancellor, Harrington, Justice, Chief Carey Layton, J. J. L. P. Green for Be- Errigo A. and Warren Relator

Joseph low, Plaintiff Error. F. and James L. Latchwm for Respondents

Daniel Wolcott Error, Schorr, Hawke, Below, Sigmund Leroy Defendants F. Newell, F. and Leland Wilds. Thomas Cooch John Jr., Below, Wise, Respondents A. Henry Defendants Error, Brown, Ryon, Leon H. K. E. Pennington, William James Brown, L. W. Foreman and Walter G. Tatnall. John James

Richards, Chief Justice. first, questions, determine two upon Court is called

This title, second, expressed of the Act subject whether the can Legislature delegate appointment whether the of Elections for New Castle as members not a part an which is the. Government agency the Constitution. outlined to the give our attention second first.

Wе will Constitution, National ordained and order Our established union, domestic perfect justice, to form a more establish insure defence, provide promote gen- common tranquility, blessings liberty and secure the to ourslves eral welfare sovereign power government posterity, imposed our branch, the branches, the legislative distinct three and separate branch, branch. judicial executive States, enumer- one of being of the United Government

The branches to look to these different it necessary powers, ated are. powers what these to determine in order of government Limitations, 11. 8 Ed. Vol. Constitutional Cooley’s Constitution, like state constitu whi-ch most Our State Constitution, a grant is not after the National tions is patterned the State upon powers a limitation but is power the Legislature It therefore follows that inherently possesses. it to enact laws that consider power

has an unlimited or State have necessary, where National Constitutions except upon limitations it. placed Foster, 479; State,

Rice v. 4 Harr. Collison v. 9 W. W. Harr. 1422; 468, 2 119 A.L.R. State ex A. 2d rel. Morford Emerson, 515; affirmed, 10 A. Terry 2d Terry 496, 14 A. 2d 378. Constitution, the pattern of the

Following National our State Constitution also confers sovereign govern- powers branches, ment separate branch, on three the legislative the execu- tive judicial branch branch. legislative The power the State is vested the General Assembly consisting of the of Representatives Senate House which is the law making Constitution, of the State. body Article 2. Supreme

The executive power State is vested in the Governor whose it is duty to see that the laws are faithfully executed. Constitution Article 3. His duties include the power office, appointing and with a majority all the mem- Senate, elected bers such officers as he is authorized constitution or lawby appoint. Governor is only officer upon Constitution whom confers of appointment. vested the various The of the State is in Judiciary Power such courts other provided by the Constitution courts of with of two-thirds Assembly, the concurrence the General House, by to from time time law to each shall members the establish. powers all the the imposes

It clear that Constitution seems office, appoint upon the to to of government, including government branches of separate independent the three associa- to. is made of recognition agency, above referred No of tion, not in or committee which included one commission thereby. government of these three branches Emerson, 1 Terry In of ex rel. the case State Morford said, 154, 158, in the “We see the nothing Court A. 2d Legislature which the from prevents creating Constitution the members thereof. naming Commission or Board and statutory true, see no reason anwhy existing statutory If that were then we by membership, Board be amended the such increasing not being designated Amendatory in the new members Act.” Legislature But case. The that is not what occurred this Department the act for a an Act amending providing- passed by membership County, increasing Elections for New Castle eleven, by fiv'e whom are be nominated nine to to of the two five leading political parties, Chairman of one State by be of the whom are to nominated the State Chairman other one of whom is leading political parties, of the two nominated are by and all whom appointed Governor by Governor. respect no discretion to the five

The with Governor has are nominated State Chairman of one of members who political parties, or the five members who are leading two Chairman of the leading other of the two nominated State he required appoint political persons nominated parties, political said Chairman two leading- State parties. By to the State Chairman procedure delegated Legislature of' agencies which leading political parties, two Government, right the State with the connected Mew- appoint ten Elections for members of the County. Castle case distinction between Emerson clear; Legislature, case case the before this Court Government, mem- is a branch of the State named the bers Act, Highway Department the State in the other words, were they by the while appointed Legislature, present case the the State Legislature Chairman delegated the organiza- two leading political voluntary which parties, individuals, tions of having no ‍​‌‌​​​​‌​‌‌​‌​‌​​‌​‌‌‌‌​​‌‌‌​‌‌‌‌‌​​​​​‌​‌‌‌​​‌‌‍with the Gov- connection State ernment, power the the members of a state appoint agency.

We the taken agree position by with the Court case, the Emerson creating the can an Legislature pass act a state act; or agency board and name the members thereof in the and we are of the opinion, that Legislature the can the authorize State Highway Department which is a State make Agency to certain appointments, the Legislature but can not the delegate to State Chairman of a a political is party, organiza which voluntary individuals, tion except accountable no one its organiza own tion, having no with connection the three branches of govern ment in power which the sovereign government lodged by Constitution, the the power appoint the a members of state agency as the such Elections for Castle New Fostеr, 479; County. Rice v. 4 Harr. Rouse v. 228 Thompson, 522, 1109; Bennett, Ill. People 81 N.E. ex Shumway rel. v. 29 107; 451, Mich. 18 Am. Rep. Washburn, State ex Hadley v. inf. 430; Mo. 90 Am. Rep. S.W. St. Ry. Ohio & M. Todd, 56; Co. 91 Ky. 15 S.W. Winters v. Hughes, Utah 443, 24 759. P. Foster, supra,

In used following Rice Court language: State, therefore, with

“The of this resides sovereign power thus executive, Having legislative, judicial departments. cannot resume or sovereign people transferred power, so, portion of be an infraction exercise it. To do would constitution, and a the government.” dissolution of 60 of the Code of at section Chapter paragraph “an citizens organization defines a of bona fide political party State, shall, in this which means any County by voters of otherwise, convention, or a election nominate candi- primary by dates for be filled at public people any general offices to or special election within State.” party

If the candidates nominated above political proper officer, upon defined are placed certified the official ballot, election, they at next or special and elected general may óecome Government and part officers; but that classed as state does make county polite ical a state or a they agency which were nominated party Legislature to which del- part Government the State A state egate agency. members appointing organization its political adopts the method party about, ac- brought provides regulation own rules for its its the sel- compose no one those who It except party. countable to which adopts, ects its State the method or rules it by Chairman the removed who to one and be except party is accountable no take. that it considers to by any procedure proper by of political clear between the activities a There is a distinction them to public causing office and selecting in candidates for party by elected, of government the affairs and administration com- The following to office. appointed those who are elected or Y Aspinwall, N. Brоnson, in v. Oakley ment of Justice 3 Chief case: this very appropriate for the latitudinarian reason always plausible “There is some

27 of acquiring for the purpose constructions which are resorted to be attained good evil to be avoided or some power—some beyond legitimate their powers government of the pushing constitutions influences that to such boundary. by yielding It * * * If the undermined, overthrown. finally and are gradually it; inconven- well, can people amend law not work does if the process. await that But enough long iences can borne cure forced undertake to defects or the courts legislature constructions, upon a wound constitution they unnatural inflict legislature can One taken nothing step which heal. opens of the powers government,

judiciary enlarging follow; another, process and so will be sure door for lost, and the on, fundamental law is until all for the goes respect in authority please what those just are powers government call them.” cases which take We are the fact thаt there are aware of Sakin, 121 view, v. recent which is Driscoll contrary the most position. agree N. J. L. A. but we cannot with their 2d Sakin, almost on supra, entirely The case of Driscoll depends 484, 485, Condon, Nixon S. 52 S. Ct. L. Ed. U. cannot that it is an support, agree A. L. R. but we In the the Court in that case. for the before

authority a statute with dealing Nixon case the construing Court was Texas election right primary at Democratic party to vote negro Cardozo used these words: opinion Mr. Justice so to work legislation of Texas has been “Whether the effect concept political party of a a transformation complete association, now decide. Nothing we do not a voluntary an intimation that the carrying with it be taken opinion As to so far. unready petitioner to follow ready court is . necessary.” until decision becomes that, must be postponed decision in Error the Defendants following upon by relied cases consideration, because the case under distinguishable 28 appointments each of them the be made from a list to appointing power

names which allows the to exercise dis- some cretion : In Adjustment, v. Board 255 Mass. Bradley Zoning

150 N. E. the Act for a board of provided zoning adjustment Boston, members, 12 for the be city consisting appointed to one from a list to be the Cham- by Mayor; by of two nominated Commerce, ber of one from a list of two be by nominated list Massachusetts, Industries of Associated and others of two to be nominated by organizations. other Gibson,

In Commonwealth ex rel. District v. Attorney 389, the Act that the County Pa. 175A. Commission- ers should each election year registrars each district appoint class, cities of the third said to be made from appointments rep- names of two persons party suitable submitted major political parties. of the two If the names sub- resentatives could satisfactory mitted were not Commissioners other ask that names filed. In Kidder 304 Mass. 24 N. E. Mayor Cambridge, 151, the Mayor appoint

2d Act authorized Cambridge city, equally represent Election Commissioners parties, appointments possible leading political two said politicаl each' a list of 3 names to be submitted be made from party. Brown, 289, 145 St.

In State ex Ohio rel. Kauffman Secretary State Sup- N. E. the Ohio election law makes the Elections, Sup- him Deputy to appoint ervisor of authorizes among divided county, equally for each to be ervisors of Elections made to be Said political parties. appointments leading two polit- committee for each executive from names submitted ical party. recommenda- court was whether the before the

29 Committee, made proper non was two committees executive claiming represent one of the of the parties. question basic right committee to was not raised. recommend In O’Connell Duff, Ky. 276 W. 125 S. 2d Ken tucky statute that the State Board of Election Commis sioners appoint should election for County commissioners each but five appointments were to be from a made list names submitted Executive lead County Committee of two ing political parties. The before Court was whether the list of five names filed by the County Executive Committee of the party Democratic Montgomery for was filed in time. County In State ex rel. Humker v. Hummel, State Ohio 56 N. E. 2d the Republican Executive Committee of Stark Ohio, County, recommended the Secretary relator to appointment as a member of the of Elections for Board Stark County. The Secretary Republican of State ruled that the Execu- tive Committee of County by Stark which the recommendation was made was not the legally constituted committee' and appointed someone who was not recommended as a member of the Board Elections. The held Court that the Secretary of State had no authority to determine in an ex parte proceeding the Board County Elections Stark illegally ques- was constituted. The tion of the recommendation by Executive Committee was not raised. Rhea,

In Russell v. Ky. S. W. 2d it was con tended that the appointment of a member of the Board of Election for Logan Commissioners County was not made the list of five submitted to the State Board of re Election Commissioners as quired by statute. The Court held thаt it the duty was of the State Board Election Commissioners make appointments from the list submitted to them. appears It in this case that the were be made from appointments a list of five names which gives some discretion State Board of Election Commissioners the appointments. making paragraphs attention been

Our has called various election, party, primary 1935 which a political Code of define by polit- elections under which shall held provide primary rules of Elec- by Board parties, elections to be held require primary ical officers, the election officers by direct of the appointment tion the elec- primary the political party holding Committee of the County tion, office, an oath clothe the election officers to take of require of County the the Con- the election officers with and duties powers at registered stable, use the official books of voters compel the of elections, within which the polls the times prescribe all primary the approval must open, require at elections primary primary the for the of Elections of date Department of elections, primary at any to vote prescribe qualifications of electors election, to certain offenses make it a misdemeanor 'commit elections, use elec- primary the at primary require with connection Elections, of Department ballot provided by boxes tions of primary at tallying the manner of vote voting prescribe elections, election primary fix of officers compensation expenses County, paid by election to be all directing primary by certified such all for elective office to be requiring candidates Secretary party of the several officer and conventions presiding State, committees, County, authorizing the Chairman of the or fill political organzations to vacancies caused or District Hundred etc., of death, before the ballots. printing of candidate by in the regulations avoid confusion necessary These are to elections, at primaries prevent disorder holding primary each shall political party the members guarantee choice their be voted people selecting privilege have the public officers. cannot be con- They Election for at the General for Government, with political parties the State connect strued make political parties the Chairman of the State Committee of party other officers officials. public Board appointment of local officers registration by respective Dis- Registration, Registration tricts, as provided for in 121 of Laws of Dela- Chapter Volume ware, is required Each parallel Registration case. Board of officers, to appoint capable three local persons, registration district, district, each election each in its respec- representative district, registration tive department registra- number total tion in each representative equally officers district to be divided as as possible political between the two The Execu- pаrties. leading’ tive Committee of each leading political party required to furnish Registration Board of with each ap- a list three names for pointment accredited to it the Board of Registration must make appointments. Registration The Board of its is not required to one Ex- appoint particular person nominated ecutive Committee of leading political exer- parties, but its cise discretion one from selecting three names submitted said Executive By Committees. the Registra- method Board of tion makes the appointment by from of one the list three selecting names submitted.

In Lewis, State ex rel. Saulsbury Boyce 91 A. question the before the Court was whether the Executive Com- of mittee the Party Democratic of the City Wilmington of had Department furnished the of Elections a of with proper list names from which registration the officers accredited to ap- to were be pointed. The that the Department Court held of Elections was to required appoint registration ‍​‌‌​​​​‌​‌‌​‌​‌​​‌​‌‌‌‌​​‌‌‌​‌‌‌‌‌​​​​​‌​‌‌‌​​‌‌‍officers from list furnished Committee, by Executive if said list in form proper was and with the law. The complied distinguishable case is also from the present case because of Elections was not re- one n certain quired appoint person by named Evecutive Com- of the Democratic but mittee had list of names party from which The for determina- to be person appointed. question

to select the passed upon. tion this case was not Townsend, 7

Also, McKelvey ex rel. in the case was whether A. before the Court Boyce appointment with the complied had law in the Governor officers, respect appointment with particularly registration The held that district. Court registration for each registrars with the compliance duties performed Governor had his officers registration division of the statute and that more equal each It ex- representative not have been made in could district. other opinion expressed ques- that no was on pressly stated in the case. tion raised Legislature had a number passed providing

The acts character, Ex such the Boаrd of Medical boards different aminers, and Board the Board of Dental Examiners the State Nurses, appointed by Gov of Examiners Graduate him but in from lists submitted to none these cases ernor required accept the name of one for each person appoint is he but his As the two may ment use discretion them. making Examiners, from of Medical they appointed Boards are to by Lists submitted to the Governor the two Medical Societies persons there limit to the number of can be named is no that of Dental are appointed Lists. State Board Examiners from recommendations made Executive the Governor Society, there of the Delaware State Dental is no limit Council persons to the number be recommended. One mem ap: Board of Examiners of of the State Graduate Nurses is ber year each a list of five names Governor pointed Nurses, him Association by the Delaware of Graduate submitted to list, an if he additional with he not satisfied may request a number other There are statutes in this one furnished. character, of various mеmbers of for Boards providing by the Governor recommendations appointed are to which made some association or organization a part which is not Government, the State but we have not the statute found like for the providing Department of County, Elections New Castle which leaves the Governor no discretion and him to requires accept the nomination person of one by the State Chairman of the two leading political parties.

Section 4 of that, provides Act “all De- members partment of Elections and all employees thereof prior to the Act, effective date shall continue to be members and thereof, employees respectively, until the De- members partment of Elections appointed as under Section 3 hereof shall be appointed qualified and and shall have organized as such.”

It clearly appears that the Legislature by Chap- amending amended, ter 57 of the Code of and for a providing Department of Elections New County, Castle do intended to away with оf Elections for County, New Castle consisting of members, nine time, existed at and create a Department of Elections for New Castle con- County sisting of eleven adopted members. method Legis- lature for this purpose unconstitutional, been having to be found the Legislature failed to carry provide out intention its De- partment of Elections for New Castle consisting of eleven members, the Department of Elections for New Castle County consisting of nine members the legally constituted Department of County. Elections for New Castle

The eleven the Department members of of Elections for New Castle County which the Act that became on effective 15, 1947, create, April intended to were appointed nominated and Act, organized qualified department. said They then performed certain routine duties connection with the office. While they in this were de facto of serving capacity ficers them so performed by serving acts while are legal. A de facto officer defined as “one whose title is not good has beеn office, of an law, possession is in unobstructive but who in fact

in in public full of the such view discharging its duties and is present ap- under as not to such circumstances manner and 43 American being ursuper.” an intruder or pearance Juris- 471. prudence, page sec. that the Act violates section question It was also argued no which that Act requires article of the Constitution 16 of expressed be subject more than shall one shall contain passed upon by been Court of question the title. This has can of cases and little be added very State in number said, each act be considered already sep- must has been what arately. on grounds Act other found the unconstitutional

Having necessary question. decide this opinion we given, For the above are of the that reasons and the unconstitutional decision Act Court is reversed. hereby Superior Chancellor, Judge, dissented.

Harrington, Terry, Chancellor, Harrington, delivering dissenting opinion: Delaware, 46 Laws Chapter legislature Volume By of Elections for Department New Castle created members, of whom were to nominated by five eleven major parties of each of the political Chairman and the State provides Governor. The Act also remaining members that shall nominated appointed by the members so “All of Gov- members of Elections. There ernor shall any one political party more than members of never be six faith.” are, also, the office required. The ma- qualifications Certain that the opinion the court are of the mode of appoint- jority an provision indivisible offices created violates ment We are Constitution. scheme unable general agree with the necessarily, latter They, conclusion. concede the legislative Assembly “is General as broad ample in itself, omnipotence its as sovereignty except insofar as be curtailed by express Constitutional restrictions or neces State, sarily implied.” 460, Collison v. 9 (39 Del.) W. W. Harr. 468, 97, 1422; L. 2A. 2d 119 R. A. State ex rel. v. Em Morford erson, 328, 345, 1 515; Terry court, 10 A. 2d affirmed 1 496, Terry words, 14 In A. 2d 378. other the majority concede that the State Constitution not a grant leg and that islature, has representative people, legisla of the all of the tive rights powers that are not or expressly impliedly taken away by that Federal given instrument Con Congress could, therefore, stitution. id. The named legislature have the of in ficers the Act creating the officeshad it chosen to appoint them in Emerson, that manner. 233, State ex rel. v. 1 Terry 8 A. Morford case, 2d 154. In that court “We said: see nothing the Consti tution which prevents the legislature from a creating statutory commission or naming board members thereof.” But the adopted legislature could methods of selecting have other statu 260, tory See George, officers. Com’rs 104 Sinking Ky. Fund v. 779, 47 S. Rep. W. 84 St. 454. The offices, Am. creation of the qualifications officers and the mode of their appoint legislative court, ment powers. majority also, were all tacitly provision at that least concede there is no constitutional prohibits delegating power to legislature ap statutory agents. to fill offices to a certain class persons point however, They governmental that because of division say, judiсial, the limitation legislative, executive into powers agents must be that the selected should have appointive implied govern with branch of the connection some some reasonable ment. also, or- voluntary a mere say political party that

They, is “accountable to ganization, except the chairman of which no one all legislative presumed organization,” own Acts its But 36 in. violation clearly void when only and can be declared

be valid ex can no such constitution. We find restriction of some are forced in that instrument and limitation implied press 182, Laws 46 Chapter Volume conclusion that provision fill the offices for the selection persons of Delaware 22, Act, 121 N. 1 A. 2d valid. Driscoll J. L. v. Sakin. below, 122 881, opinion court on majority approved by 414, 699, 866; Ad v. Board Bradley Zoning A. 2d N. J. L. 5 892; 160, ex rel. 150 N. E. Commonwealth 255 Mass. justment, 389; Gibson, v. A. Overshiner 316 Pa. 175 Attorney District State, 748, Am.St.Rep. 187, 59 51 L.R.A. N.E. 156 Ind. 411; 187; State, Md. 46 A. 50 L.R.A. In Scholle 553; Officers, Paragraph Jur. Public Bulger, re 45 Cal. Amer. 92; 80-84; C.J.S., Elections, Throop on Pub. Onc Pages § also, ers, 85; see, Circuit State ex rel Buttz v. Marion Paragraph Court, 2d Ind. 72 N. E. 225. Sup. Sakin, supra,

Driscoll involvеd a similar statu- strikingly court, in tory sustaining constitutionality The the of provision. 225, 1 Act, the said A.2d : [121 882] N.J.L. * * * where the of this

“It seems settled that Constitution the manner in which legislature may silent the determine named, public may may delegate a be the selection to official and be and the Executive clothed with no discretion others that the Nor we encroach- in the of commission. do see issuance never upon authority ment of the executive. The executive a members of Boards power appoint County had constitutional were County legislature of The Boards created Election. the manner of their plain words selection.” case, controlling principle though, That seems to legislative policy the reasonableness commenting on previously the Court had political parties, the functions of said: Election) act Board of creating (of “The the office chairman of the nomination the state two most provides powerful political parties of two members of board. To insure a democratic government, form оf necessary that there be at least two strong political parties holding different views upon a political questions. result of Only public discussion can a wise policy adopted. To insure honest elections it essential that county board be at up made least the choice of both powerful political parties. The executive of political committees parties act in country high interest, matters public so great is their they subject to constitutional re straint hence may not local organizations act as may. Nixon Condon, 286 U. S. 52 .S. 76 L. Ct. Ed. A. L. R. 458.” State,

In Overshiner v. supra, appellant been con- had victed license, practising dentistry without in violation of a statute. The Court validity provision sustained for the selection of Board of of five reputable Examiners practising dentists, one whom appointed by Governor, was to be one by the Health, State Board of and three by the Indiana State Dental Association. constitutionality the Act was the only question before the court. was It contended that legislature could confer the power appointment upon a private cor- individual poration or outside the executive department. The courts out that N. Ind. E. pointed [156 469] silent, “where constitution is and the is one of public means policy, relates to the best for the agency attain- end, it ment must be governmental presumed of some that the constitution intended to invest the framers of the legislative body discretion in the selection of the agencies with a most large suit- public.” able beneficial the and the pronouncement

The Indiana Supreme latest Court case. See State ex Buttz seems accord with this rel. supra.

Marion Circuit Court, is, therefore, that when restricted conclusion by Our for the exercise constitution, may usually provide legislature government, power by any department of the appointing choose association of whom it any person persons by involving Statutory provisions, for that designate purpose. are not unknown this State. application principles, of these Act, An of voters Laws relating to the rеgistration {Vol. Del., provides: Chapt. 121) “* * * officers registration the total number of possible district be divided as representative equally each shall political as the same shall be de- leading parties, between the two respective Registration Boards of at upon by termined said further, ap- for each appointments. time of And making Section, under pointment any political party accredited to in the political party particular of such Reg- Executive Committee District shall furnish the Regis- istration Board District, on or before Registration Department tration of said year in which appointment said day first of June made, names of properly qualified persons, a list of three Board of make its Registration appoint- list the said shall ments.” are created statute by of Medical Examiners

The Boards from lists members appoint the Governor is directed Code, Para- Medical Societies. Revised by the submitted likewise Pharmacy, Members of the State Board of 918. graph board, are, also, by each the Governor aрpointed year statutory the Delaware of five names submitted Pharma- from list Rev.Code, 1935, Paragraph 936. Similar ‍​‌‌​​​​‌​‌‌​‌​‌​​‌​‌‌‌‌​​‌‌‌​‌‌‌‌‌​​​​​‌​‌‌‌​​‌‌‍meth- Society. ceutical Ex- of the State Board of appointment ods Code, Rev. as amend- Paragraph Nurses. aminers of Graduate 299; in the Del. appointment Laws ed Volume Code, Rev. Paragraph of Dental Examiners. 967. State Board Delaware University ap- provides charter of number of trustees Govrenor specified of a pointment

39 It, for the election designated also, number Board. Governor, provides that President the Universitty, tire President of State P>oardof Education and the Master of the Grange Rev.Code, shall be ex 1935, officiomembers. Para- graph 2776. state,

In this in general candidates elective offices elec be persons tions must certified such “by Presiding as Officer Secretary of the Party several State or Committees.’' Conventions Del., 44, Vo death, l. Chap. Laws In case 119. of the re moval resignation such candidate after the printing of bal election, an State, lots before the “Chairman of the Hun Cоunty, dred or District Political Organization, such candidate was nominated” Rev.Code, is authorized “to fill such vacancy.” 1815. Section 1782 paragraph Revised Code also, prescribes the qualifications of to vote at electors any primary It election. is unnecessary, however, to determine whether po officers, litical can parties, their sense, regarded, They state exercise some agencies. public functions the nomi and, sense, nation of candidates public offices a broad State, sometimes said come within that class. See ex Buttz rel. Court, supra; Circuit Condon,

v. Marion Nixon v. 286 U.S. S.Ct. L.Ed. A.L.R. 458. But that is not the factor in case.

controlling also, Act on majority opinion, attacks the the ground no of the given the Governor was discretion ten appointing County. of Elections for New Castle members of statutory But where appointments we are officers considering has in its dis- only legislature, the Governor such Emerson, cretion, State ex rel. may give him. See Morford Sakin, supra. supra; Driscoll Article III Constitution 1897 provides: Section othеr- power, shall have unless herein Governor) “He (the and with the consent of a majority provided, appoint, wise Senate, officers he is the such of all to the members elected to appoint.” law by by this Constitution be authorized is, therefore, only to the power a of provision grant That statute, or by the Constitution specificallygiven by extent that it Emerson, supra; legislature pro the v. and State ex rel. Morford members of ten in words the manner of the selection plain vided the Sakin, The fact that supra. Driscoll v. department. of the appointed the to commission officers Governor was directed significance. of no material of the Act is with the provisions accordance Sakin, supra. v. Dris coll pro- the Constitution important whether

As the statutory power appoint of to delegation legislative hibits the the the we government, members of persons not mficers by minority the cases relied on any unable to see how the named distinguished ground Court can be on that from of names furnish- appoint a list agents only were required Thе number that could major political parties. each of the by ed was, also, limited. party from one political be named Lewis, Furthermore, 5 Boyce rel. Saulsbury in State ex 993, enforced an Act (Chapt. the court sustained and A. Department Del.) required Laws Vol. election appoint officers City Wilmington Elections of the persons submitted execu- city list of larger qualified leading political parties. of the two committee of one tive Foster, involved majority, Rice 4 Harr. cited There, that legisla court held very question. different ture, authority, constitutional could not refer to express without of whether the sale of of the the determination people the vote counties of the the various State. prohibited should liquor theory legislate, that the based on The decision was body, delegated could not government on one it. conferred al., Ch. 99 A. 84. al., v. Williams et Del. Dangel et See cases Substantially the same involved most question was cited majority opinion. relator, also, controversy

The That Act in es- claims: (1) political tablishes a test of Elec- for members tions for XIV New Castle and violates Article thereby Delaware Constitution and the clause “equal protection” Constitution; Fourteenth Federal its (2) Amendment provisions are a republican government; adverse to form of Act that the title of the does not with Article (3) comply Sec- tion of the Delaware Constitution. court below con- fully all of rejected sidered these are in contentions we accord with its conclusion. is, therefore, valid,

Our the Act in question conclusion and that eleven Department the member of Elections the legally Department. constituted

On Reargument Reargument on the whether the granted opinion of 182, majority declaring of the Court 3 Chapter Section of 46, Delaware, unconstitutional, of Volumn of the Laws of rendered the repealing clause in 3 Section of or inoperative, said Act wheth- er the of Department for County consisting Elections New Castle 1746, 2, of nine by members as Paragraph Section Chapter amended, 57 the Code Revised as was still of of existence.

Richards, Chief Justice. fully

The facts case appear opinion of this the handed down 16, 1948, September the the on by of Court majority unnecessary to restate them here. must, however, 3 again

We call attention to Section of Chap- Delaware, reads, 46 of ter the Laws of which Volume 2. Chapter

“Section That 1746. Sec. 57 Revised 3. of Delaware, amended, hereby the same is Code as be and of be repealed, submitted in lieu known and new Section thereof as 1746. Sec. as follows: of Sec. There be eleven appointed

“1746. 2. shall members County, New on the fifteenth of Elections for Castle Department years four on fifteenth every of thereafter day April, by are to nominated April of five of which be day members leading five political Chairman of one of the two parties; by which are to be nominated the State Chairman members of member of political parties; other of the two and one leading the members so to be Governor. All of which is nominated shall the Governor members appointed nominated mem- There never be more six of Elections. shall than Department When member ceases to political party any one faith. any bers death, resignation, due to Department hold office term, expiration than the of a full other cause whatsoever other that mem- authority originally which nominated nominating fill vacancy nominee ber shall nominate successor for the residue the term.” Governor appointed shall Chapter Code Section Paragraph amended, to, for a of Elec- provides above referred consisting of nine for New Castle members. tions all held that constitution majority opinion vested in the Executive government Legislative, sovereign that of government; portion branches the state and Judicial 182, Delaware, volume 46 of the Laws of of chapter of 3 of section for a Elections New Castle Department of provided members, five were to of whom County consist of eleven to political of one of two leading the chairman appointed by the appointed to be chairman of five of whom were parties, was unconstitu- leading political parties, other of the two to a state appointment of delegated because it tional part not a of and had no connec- agency office an which was government; and that of the state branch with tion to create Legislature carry out its intention having failed a County of Castle consist- Department Elections for New members, ing of Elections of New Department eleven of members, of for in Castle nine County consisting 1935, of section of of the Code paragraph chapter amended, Department constituted of Elections legally was Castle New County.

A reargument granted on the was sole of whether the opinion of majority of the left the of repealing Court clause 3 Chapter Delaware, section of Volume of of Laws force, in whether the Elections for New Castle of nine consisting members is restored. Below, Error,

The Respondents Defendants in contend that in repealing clause is still the Department force and that Elections for New County consisting Castle nine members is no In longer existence. support position they rely upon case Equitable Donahoe, Guarantee and Trust Company v. 372, 376, 3 Penn. 49 A. En decided Banc in the Court holds, this State. That case amending that where an act ex- press act, language repeals certain section of an original substitutes a section therefor which later is found to uncon- stitutional, the section of the act not original restored but the repeal thereof still If the force. facts in that involved case had been similar facts the case now under consideration it is impossible say might what it effect have had on the de- following cision. language opinion found the concurring of Grubb, J.:

“Therefore, although Legislature intended to amend the investments, Act of continue taxation clear- yet and to it ly did intend to by continuing pro- amend distribution visions section thereof unaltered.” hold, weight that where authority

We find the statute, repeals statute a former and at- by express language 44 a which is a therefor method

tempts provide substitute unconstitutional, the statute portion to bе ‍​‌‌​​​​‌​‌‌​‌​‌​​‌​‌‌‌‌​​‌‌‌​‌‌‌‌‌​​​​​‌​‌‌‌​​‌‌‍found and of no of said former statute is provides repeal void effect.

n case, in every The be considered principal the rest repealed whether the which is severable portion statute, whether, repeal Legislature intended 802; Mazurek event. Annotation A.L.R. 102 effect in take 570, Co., Farmers’ Mutual Fire Ins. 320 Pa. A. 33, 181 102 v. 798; Rice, 1026, 115 Md. A. L.R.A. (N. 317, 80 36 A.L.R. State v. 1247; 481, State v. 83 Md. 344, 1913A, S.) Benzinger, Ann. Cas. 35 Thrall, v 368, 785; 52 N.E. Ward 173; A. State v. 59 Ohio St. Commomwealth, v. Build 468, 276; Randolph 15 S.W.2d 228 Ky. ex 501, 721; Supply Co., Ala. 17 So. State rel. 106 ers’ & Painters' Blend, 411; Am.St.Rep. 511, Law Ind. N.E. 514, 121 23 16 v. Fox, 505; Chicago, I. & P. R. 263, 294 Ill. N.E. R. 128 People v. Bar 77, 380; Co. 151 Ark. 235 S.W. State ex McClanahan, v. inf. 623; v. Blaay, 269 S.W. De 49, 137 People rett Mo. 307 Joyce, v. In re 919; 1 Ann.Cas. 4 Rafferty, N.W. 100 Mich. Candelaria, P. 465; v. N.M. 28 Wash. P. 25 215 Kingfisher v. Com’rs Okl. 816; 6 County, Board Porter Galveston, R. 96 Tex. ,520, & W. Co. P.741; Galveston Florence, S.C. City Council 537; Barringer S.W.

S.E. 745. settled, a statute part

It that where also well as parts with other is so connected found to be unconstitutional conditions, other as upon each mutually dependent make them other, in such a manner for each compensations considerations them intended Legislature that the the belief justify Blend, rel. Law v. State ex whole, together. fall stand or they Co., supra. Fire Mutual Ins. Farmers’ supra; Mazurek v. subject is very- of the law on condition prevailing 521, Page Section 529: Am.Jur., in 50 well expressed “The provision whether a an unconstitutional' statute, repealing subject, a on falls with the Act former law the of which it a part, intention the depends primarily the upon legislature. the Ordinarily as hav- repealing regarded clause not ing been intended to remain the notwithstanding invalidity in effect statute, of the remainder of the and is accord- repealing clause itself ingly a regarded invalid of the inoperative repeal and former This applies specific law. rule repeals. to A different result reached, may be however, where it that the appears legislature intended to repeal former law in any event.” prevailing

This condition also well in 1 stated Lewis’ Suth- Construction, erland Statutory Ed., 2nd 457: Page Section “A repealing valid, clause statute bemay every although other unconstitutional, clause is if plainly such is legislative intent. But repeal where the is intended to clear the for way operation of the Act reрealing thereby clause show- containing new, ing intention displace to law if old with the latter is be dependent unconstitutional clause would and repealing inop- erative. ‘Where displace the evident of the purpose repeal is to stead, the old law and substitute the new in sec- repealing its clause, tion substitution, being dependent upon purpose necessarily falls when purpose falls the main Act’.”

In the case Randolph Supply v. Builders’ and Painters’ Company, supra, an Act was passed legislature men, Alabama for mechanics providing liens and material certain Act repealing prior sections of with the same dealing subject. The Supreme Court of that State declared the Act later unconstitutional, Act prior be in to still holding force used Ala. language So. [106 725]: would, indeed, intent, “It legislative do violence to the presume they lien law repeal entirely intended mechanics’ state, legislation they in this if the were with a view adopting, better, of constitu- it, because perfecting making failed

tional infirmity.” of Volume Chapter

An examination of рrovisions Delaware, that the the conclusion the Laws of leads to of Elections to abolish the legislature did intend membership County, but increase the simply New Castle nine members. members eleven 2 1A of Chapter thereof 1745A Section repeals Section amended, Depart- of for a provides of the Code which as nine County Castle of mem- consisting of Elections New ment bers, in lieu thereof new section 1745A Section and substitutes 1A the following provisions: which contains of Elections for Department there be a New Castle

“That shall of eleven and shall composed which shall znembers County things all matters now vested the De- have over and jurisdictiozi constituted, Castle as now County of Elections for New partment all every rights, and exercise and possess, enjoy and shall held, enjoyed and which now privileges possessed, and powers of Elections Department Comity, of New Castle exercised Department of Elections coznpletelyas said now fully as and do, other rights, powers so to such and law is authorized and conferred, by аny as this Act and law of this privileges inconsistent with the provisions or hereafter enacted not of now this Chapter.” 4 provides: thereof

Section Department of of Elections “All members and all em- Act, effective date of this shall prior thereof con- ployees thereof, employees respectively, be members and until tinue to appointed of Elections as Department of under the members qualified shall appointed hereof shall be have Section such.” organized as not did intend the Depart-

That tin? discontinue legislature of ment for New Section 3 County, by enacting Elections Castle Delaware, of Chapter ap- of Volume 46 the Laws of also Delaware, pears Section 185 of the Laws of en- Chapter at acted the same on session and which became effective April 1947, the upon Chapter same date 182 became Section of effective. This additional Act which be considered com- panion act contains the following pertinent language Section 2:

“The members of the Department of Elections for New County Castle April constituted from time to time after shall constitute from after the date effective of this Act the Bureau of Registration County. president for New Castle the Department of Elections president shall be the of the Bureau * * * of Registration. The members Bureau of Regis- tration shall compensation receive no for their services such other than compensation their as members

Elections.”

Certainly Legislature away did intend to do with the Department of Elections County for New Castle and leave people that without provision exercising right their of franchise at subsequent general special elections County. held On the contrary, Chapter provisions 182 of Volume 46 of of the Laws Delaware disclose the intention

of the Legislature to continue in existence the Department Elec of for New change tions Castle but to its membership nine members to eleven adopted by members. The method Leg islature to about this bring change been having found be uncon stitutional, the Department of Elections for New Castle County members, of nine consisting 1746, Paragraph as 57, 1935, 2 Chapter Section of the Revised of amended, of Code still in and is legally existence constituted of County. Elections for New Castle the case of Equitable

We Guarantee and Trust find Company Donahoe, supra, contrary weight v. to be of in authority reagon hereby and for it this country that overruled. Chancellor:

Harrington, it, require I case does not As of this view determination and in Guarantee any consideration stated Equitable of the rule Donahoe, 372; 191, if A. but 3 Penn. Company Trust the ma- the conclusion pertinent, I with question agree incorrectly court decided. jority of the that was however, am, majority I with conclusion agree unable to Delaware, 46, vio- 3, 182, that Section Volume Laws of Chapter Constitution, reargu- permit lated the with their refusal question. ment of that that the original opinion One in their was conclusions

legislature statutory could provide not for the selection govern officers connection with the State persons no having ment, parties private that werе mere committees of political that corporations not within rule. The recent cases Smith Allw L.Ed. 151 A.L.R. right, 321 U.S. 64 S.Ct. Elmore, peti and Rice v. 165 F.2d cited (4Cir.) seem to support reargument tioners of their motion for have sufficient some consideration. bearing on require elections, primary parties Both involved the acts of political private committees were mere each it was that such argued clause organizations, subject equal protection to the rejected. made were Federal Constitution. The contentions supra, In Smith v. the court said U.S. Allwright, [321 64 S.Ct. 765]: statutory system party

“We think that this selection makes election ballot general nominees for inclusion on the legislative to follow these di- required which is (political) party par- far it determines the an so agency rections ‍​‌‌​​​​‌​‌‌​‌​‌​​‌​‌‌‌‌​​‌‌‌​‌‌‌‌‌​​​​​‌​‌‌‌​​‌‌‍state as a takes its character party election. The primary in a ticipants statutes; upon byit state imposed from the duties agency state law private they because not become matters duties do political party.” aby performed Condon,

The principle stated Nixon U.S. 458, was, therefore, S.Ct. 76 L.Ed. aрplied. A.L.R. Elmore, In Rice v. supra, legislature had all repealed statutory provisions po- holding primary elections relating parties, litical but court F.2d : said [165 391] “When these officials participate part what- is state’s election machinery, they are election of the state officers de if facto not de jure, as such must limitations observe the of the Constitution. perform important undertaken to an Having- function relating to the sovereignty by people, they exercise of may not violate the principles fundamental laid down the Con- stitution for its exercise.”

Applying these statutory provisions to the Delaware cases set out in the minority opinion, earlier reasonable to con- it seems clude tliat the chairmen of .executive of the major committees political parties, to whom the to name certain of- statutory ficers given by was Section Chapter Volume Laws of Delaware, true, are in some If that respects agents. State Act would seem to be consistent with the Constitution under even theory majority of the court. J., concurs.

Terry, Regal Corporation Distributors, Inc., Home Delaware, Mid-City Eqip- Home Gordon, A. T/A John ment Company.

Case Details

Case Name: State Ex Rel. James v. Schorr

Court Name: Supreme Court of Delaware

Date Published: Sep 1, 1948

Citation: 65 A.2d 810

Court Abbreviation: Del.