State Ex Rel. James v. Schorr

65 A.2d 810, 45 Del. 18, 6 Terry 18, 1948 Del. LEXIS 26

• Court: Supreme Court of Delaware
• Decided: September 1, 1948
• Status: Published

Opinions

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] HARRINGTON, Chancellor, and TERRY, J., dissenting. This Court is called upon to determine two questions, first, whether the subject of the Act is expressed in the title, and second, whether the Legislature can delegate the power of appointment as members of the Department of Elections for New Castle County to an agency which is not a part of the State Government as outlined by the Constitution.

We will give our attention to the second question first.

Our National Constitution, ordained and established in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defence, promote the general welfare and secure the blessings of liberty to ourselves and our posterity, imposed the sovereign power of government in three separate and distinct branches, the legislative branch, the executive branch, and the judicial branch.

The Government of the United States, being one of enumerated powers, it is necessary to look to these different branches of government in order to determine what these powers are. Cooley's Constitutional Limitations, 8 Ed. Vo. 1, 11.

Our State Constitution, which like most state constitutions is patterned after the National Constitution, is not a grant of power but is a limitation upon the powers which the State inherently possesses. It therefore follows that the Legislature has an unlimited power to enact any laws that it may consider necessary, except where the National or State Constitutions have placed limitations upon it.

Rice v. Foster, 4 Harr. 479; Collison v. State, 9 W.W. Harr. 460, 468, 2 A.2d 97, 119 A.L.R. 1422; State ex rel. Morford v.Emerson, 1 Terry 328, 345, 10 A.2d 515; affirmed, 1 Terry 496, 14 A.2d 378.

Following the pattern of the National Constitution, our State Constitution also confers the sovereign powers of government on three separate branches, the legislative branch, the executive branch and the judicial branch. The legislative power of the State is vested in the General Assembly consisting of the Senate and House of Representatives which is the law making body of the State. Constitution, Article 2.

The Supreme executive power of the State is vested in the Governor whose duty it is to see that the laws are faithfully executed. Constitution Article 3. His duties include the power of appointing to office, by and with a majority of all the members elected to the Senate, such officers as he is authorized by the constitution or by law to appoint. The Governor is the only officer provided for by the Constitution upon whom it confers the power of appointment.

The Judiciary Power of the State is vested in the various courts provided for by the Constitution and such other courts as the General Assembly, with the concurrence of two-thirds of the members to each House, shall from time to time by law establish.

It seems clear that the Constitution imposes all the powers of government, including the power to appoint to office, upon the three separate and independent branches of government above referred to. No recognition is made of any agency, association, commission or committee which is not included in one of these three branches of government or provided for thereby.

In the case of State ex rel. Morford v. Emerson, 1 Terry 233, 8 A.2d 154, 158, the Court said, "We see nothing in the Constitution which prevents the Legislature from creating a statutory Commission or Board and naming the members thereof. If that were true, then we see no reason why an existing statutory Board may not be amended by increasing the membership, such new members being designated in the Amendatory Act."

But that is not what occurred in this case. The Legislature passed an Act amending the act providing for a Department of Elections for New Castle County, by increasing the membership from nine to eleven, five of whom are to be nominated by the State Chairman of one of the two leading political parties, five of whom are to be nominated by the State Chairman of the other of the two leading political parties, one of whom is to be nominated by the Governor and all of whom are to be appointed by the Governor.

The Governor has no discretion with respect to the five members who are nominated by the State Chairman of one of the two leading political parties, or the five members who are nominated by the State Chairman of the other of the two leading political parties, he is required to appoint the persons nominated by said State Chairman of the two leading political parties. By this procedure the Legislature delegated to the State Chairman of the two leading political parties, which are not agencies of the State or connected with the State Government, the right to appoint ten members of the Department of Elections for New Castle County. The distinction between the Emerson case and the case before this Court is clear; in that case the Legislature, which is a branch of the State Government, named the members of the State Highway Department in the Act, in other words, they were appointed by the Legislature, while in the present case the Legislature delegated to the State Chairman of the two leading political parties, which are voluntary organizations of individuals, having no connection with the State Government, the power to appoint the members of a state agency.

We agree with the position taken by the Court in the Emerson case, that the Legislature can pass an act creating a state agency or board and name the members thereof in the act; and we are of the opinion, that the Legislature can authorize the State Highway Department which is a State Agency to make certain appointments, but the Legislature can not delegate to the State Chairman of a political party, which is a voluntary organization of individuals, accountable to no one except its own organization, having no connection with the three branches of government in which the sovereign power of government is lodged by the Constitution, the power to appoint the members of a state agency such as the Department of Elections for New Castle County.Rice v. Foster, 4 Harr. 479; Rouse v. Thompson, 228 Ill. 522,81 N.E. 1109; People ex rel. Shumway v. Bennett, 29 Mich. 451, 18Am. Rep. 107; State ex inf. Hadley v. Washburn, 167 Mo. 680,67 S.W. 592, 90 Am. St. Rep. 430; Ohio M. Ry. Co. v. Todd, 91 Ky. 175,15 S.W. 56; Winters v. Hughes, 3 Utah 443, 24 P. 759.

In Rice v. Foster, supra, the Court used the following language:

"The sovereign power therefore, of this State, resides with the legislative, executive, and judicial departments. Having thus transferred the sovereign power, the people cannot resume or exercise any portion of it. To do so, would be an infraction of the constitution, and a dissolution of the government."

Chapter 60 of the Code of 1935, at paragraph 1810, section 1, defines a political party as "an organization of bona fide citizens and voters of any County in this State, which shall, by means of a convention, primary election or otherwise, nominate candidates for public offices to be filled by the people at any general or special election within the State."

If the candidates nominated by a political party as above defined are certified to the proper officer, placed upon the official ballot, and elected at the next general or special election, they become part of the State or County Government and may be classed as state or county officers; but that does not make the political party by which they were nominated a state agency or a part of the State Government to which the Legislature may delegate the power of appointing the members of a state agency. A political party adopts the method by which its organization is brought about, provides its own rules for its regulation and is accountable to no one except those who compose the party. It selects its State Chairman by the method or rules which it adopts, who is accountable to no one except the party and may be removed by it by any procedure that it considers proper to take.

There is a clear distinction between the activities of a political party in selecting candidates for public office and causing them to be elected, and the administration of the affairs of government by those who are elected or appointed to office. The following comment of Chief Justice Bronson, in Oakley v.Aspinwall, 3 N.Y 547, is very appropriate in this case:

"There is always some plausible reason for the latitudinarian constructions which are resorted to for the purpose of acquiring power — some evil to be avoided or some good to be attained by pushing the powers of the government beyond their legitimate boundary. It is by yielding to such influences that constitutions are gradually undermined, and finally overthrown. * * * If the law does not work well, the people can amend it; and inconveniences can be borne long enough to await that process. But if the legislature or the courts undertake to cure defects by forced and unnatural constructions, they inflict a wound upon the constitution which nothing can heal. One step taken by the legislature or the judiciary in enlarging the powers of the government, opens the door for another, which will be sure to follow; and so the process goes on, until all respect for the fundamental law is lost, and the powers of the government are just what those in authority please to call them."

We are aware of the fact that there are cases which take the contrary view, the most recent of which is Driscoll v. Sakin,121 N.J.L. 225, 1 A.2d 881, but we cannot agree with their position. The case of Driscoll v. Sakin, supra, depends almost entirely onNixon v. Condon, 286 U.S. 73, 52 S. Ct. 484, 485, 76 L. Ed. 984, 88 A.L.R. 458, for support, but we cannot agree that it is an authority for the question before the Court in that case. In the Nixon case the Court was construing a Texas statute dealing with the right of a negro to vote at a Democratic party primary election and in the opinion Mr. Justice Cardozo used these words:

"Whether the effect of Texas legislation has been to work so complete a transformation of the concept of a political party as a voluntary association, we do not now decide. Nothing in this opinion is to be taken as carrying with it an intimation that the court is ready or unready to follow the petitioner so far. As to that, decision must be postponed until decision becomes necessary."

The following cases relied upon by the Defendants in Error are distinguishable from the case under consideration, because in each of them the appointments are to be made from a list of names which allows the appointing power to exercise some discretion:

In Bradley v. Board of Zoning Adjustment, 255 Mass. 160,150 N.E. 892, the Act provided for a board of zoning adjustment for the city of Boston, consisting of 12 members, to be appointed by the Mayor; one from a list of two to be nominated by the Chamber of Commerce, one from a list of two to be nominated by the Associated Industries of Massachusetts, and others from a list of two to be nominated by other organizations.

In Commonwealth ex rel. District Attorney v. Gibson, 316 Pa. 429,175 A. 389, the Act provided that the County Commissioners should appoint each year 2 registrars for each election district in cities of the third class, said appointments to be made from the names of two suitable persons to be submitted by the party representatives of the two major political parties. If the names submitted were not satisfactory the County Commissioners could ask that other names be filed.

In Kidder v. Mayor of Cambridge, 304 Mass. 491, 24 N.E.2d 151, the Act authorized the Mayor of Cambridge to appoint 3 Election Commissioners for the city, to represent as equally as possible the two leading political parties, said appointments to be made from a list of 3 names to be submitted by each political party.

In State ex rel. Kauffman v. Brown, 111 Ohio St. 289,145 N.E. 329, the Ohio election law makes the Secretary of State Supervisor of Elections, and authorizes him to appoint Deputy Supervisors of Elections for each county, to be divided equally among the two leading political parties. Said appointments to be made from names submitted by the executive committee for each political party.

The question before the court was whether the recommendation was made by the proper executive Committee, two committees claiming to represent one of the parties. The basic question of the right of any committee to recommend was not raised.

In O'Connell v. Duff, 276 Ky. 782, 125 S.W.2d 718, a Kentucky statute provided that the State Board of Election Commissioners should appoint election commissioners for each County but the appointments were to be made from a list of five names to be submitted by the County Executive Committee of the two leading political parties. The question before the Court was whether the list of five names filed by the County Executive Committee of the Democratic party for Montgomery County was filed in time.

In State ex rel. Humker v. Hummel, 143 Ohio State 604,56 N.E.2d 167, the Republican Executive Committee of Stark County, Ohio, recommended the relator to the Secretary of State for appointment as a member of the Board of Elections for Stark County. The Secretary of State ruled that the Republican Executive Committee of Stark County by which the recommendation was made was not the legally constituted committee and appointed someone who was not recommended by it as a member of the Board of Elections. The Court held that the Secretary of State had no authority to determine in an ex parte proceeding that the Board of Elections for Stark County was illegally constituted. The question of the recommendation by the County Executive Committee was not raised.

In Russell v. Rhea, 269 Ky. 138, 106 S.W.2d 148, it was contended that the appointment of a member of the Board of Election Commissioners for Logan County was not made from the list of five submitted to the State Board of Election Commissioners as required by statute. The Court held that it was the duty of the State Board of Election Commissioners to make the appointments from the list submitted to them. It appears in this case that the appointments were to be made from a list of five names which gives the State Board of Election Commissioners some discretion in making the appointments.

Our attention has been called to various paragraphs of the Code of 1935 which define a political party, a primary election, provide rules under which primary elections shall be held by political parties, require primary elections to be held by Board of Election officers, direct the appointment of the election officers by the County Committee of the political party holding the primary election, require the election officers to take an oath of office, clothe the election officers with the powers and duties of the County Constable, compel the use of the official books of registered voters at all primary elections, prescribe the times within which the polls at primary elections must be open, require the approval of the Department of Elections of the County for the date of primary elections, prescribe qualifications of electors to vote at any primary election, make it a misdemeanor to commit certain offenses in connection with primary elections, require the use at primary elections of ballot boxes provided by the Department of Elections, prescribe the manner of voting and tallying the vote at primary elections, fix the compensation of primary election officers and directing all primary election expenses to be paid by the County, requiring all candidates for elective office to be certified as such by the presiding officer and Secretary of the several party conventions or committees, authorizing the Chairman of the State, County, Hundred or District political organizations to fill vacancies caused by the death, etc., of a candidate before the printing of the ballots.

These are necessary regulations to avoid confusion in the holding of primary elections, to prevent disorder at primaries and to guarantee that the members of each political party shall have the privilege of selecting the people of their choice to be voted for at the General Election for public officers. They cannot be construed to connect political parties with the State Government, or to make the Chairman of the State Committee of political parties or other party officers public officials.

The appointment of local registration officers by the Board of Registration, for the respective Registration Department Districts, as provided for in Chapter 121 of Volume 43, Laws of Delaware, is not a parallel case. Each Board of Registration is required to appoint three capable persons, as local registration officers, for each election district, of each representative district, in its respective registration department district, the total number of registration officers in each representative district to be divided as equally as possible between the two leading political parties. The Executive Committee of each leading political party is required to furnish the Board of Registration with a list of three names for each appointment accredited to it from which the Board of Registration must make its appointments. The Board of Registration is not required to appoint one particular person nominated by the Executive Committee of the leading political parties, but may exercise its discretion by selecting one from three names submitted by said Executive Committees. By this method the Board of Registration makes the appointment by selecting one from the list of three names submitted.

In State ex rel. Saulsbury v. Lewis, 5 Boyce 213, 91 A. 993, the question before the Court was whether the Executive Committee of the Democratic Party of the City of Wilmington had furnished the Department of Elections with a proper list of names from which the registration officers accredited to it were to be appointed. The Court held that the Department of Elections was required to appoint the registration officers from the list furnished by the Executive Committee, if said list was in proper form and complied with the law. The case is also distinguishable from the present case because the Department of Elections was not required to appoint one certain person named by the Executive Committee of the Democratic party but had a list of names from which to select the person to be appointed. The question for determination in this case was not passed upon.

Also, in the case of State ex rel. McKelvey v. Townsend, 7Boyce 19, 102 A. 184, the question before the Court was whether the Governor had complied with the law in the appointment of registration officers, particularly with respect to the appointment of registrars for each registration district. The Court held that the Governor had performed his duties in compliance with the statute and that a more equal division of the registration officers could not have been made in each representative district. It expressly stated that no opinion was expressed on any other question raised in the case.

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

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

It clearly appears that the Legislature by amending Chapter 57 of the Code of 1935, as amended, and providing for a Department of Elections for New Castle County, intended to do away with the Department of Elections for New Castle County, consisting of nine members, which existed at that time, and create a Department of Elections for New Castle County consisting of eleven members. The method adopted by the Legislature for this purpose having been found to be unconstitutional, the Legislature failed to carry out its intention to provide a Department of Elections for New Castle County consisting of eleven members, and the Department of Elections for New Castle County consisting of nine members is the legally constituted Department of Elections for New Castle County.

The eleven members of the Department of Elections for New Castle County which the Act that became effective on April 15, 1947, intended to create, were nominated and appointed is provided by said Act, qualified and organized the department. They then performed certain routine duties in connection with the office. While serving in this capacity they were de facto officers and acts performed by them while so serving are legal. A de facto officer has been defined as "one whose title is not good in law, but who is in fact in unobstructive possession of an office, and is discharging its duties in full view of the public in such manner and under such circumstances as not to present the appearance of being an intruder or ursuper." 43 American Jurisprudence, page 225, sec. 471.

It was also argued that the Act in question violates section 16 of article 2 of the Constitution which requires that no Act shall contain more than one subject which shall be expressed in the title. This question has been passed upon by the Court of this State in a number of cases and very little can be added to what has already been said, as each act must be considered separately.

Having found the Act unconstitutional on other grounds it is not necessary to decide this question.

For the reasons above given, we are of the opinion that the Act in question is unconstitutional and the decision of the Superior Court is hereby reversed.

HARRINGTON, Chancellor, and TERRY, Judge, dissented.