State v. Highfield

152 A. 45, 34 Del. 272, 4 W.W. Harr. 272, 1930 Del. LEXIS 16

• Court: Supreme Court of Delaware
• Decided: February 27, 1930
• Docket: No. 13
• Status: Published

Opinions

Rodney, J.,

delivering the majority opinion in the court below:

The relator contends that the vacancy happening within two months before the general election, that the appointee of the Governor would hold until the second general election and that the successor to Isaac R. Brown, Sr., should have been elected at the general election in November, 1928, and that Harry Smith, having received the greater number of votes at this election, should be declared the Register of Wills.

The question involved in this case. is a very narrow, but exceedingly interesting, one.

Article 3, § 22, of the Constitution provides:

“The terms of office of * * * Registers of Wills * * * shall be four years. * * * These officers shall be chosen by the qualified electors of the respective counties at general elections, and be commissioned by the Governor.”

Article 3, § 9, consists of four paragraphs, the second and third being material. The second paragraph of section 9 provides that the Governor

“shall have power to fill all vacancies that may happen in elective offices * * * by granting Commissions which shall expire when their successors shall be duly qualified.”

The third paragraph of section 9 provides:

“In case of vacancy in an elective office * * * a person shall be chosen to said office for the full term at the next general election, unless the vacancy shall happen within two months next before such election, in which case the election for said office shall be held at the second succeeding general election.”

At first glance, the terms of the Constitution seem plain and unambiguous. The Governor is given power to fill vacancies in elective offices “by granting Commissions which shall expire when their successors shall be duly qualified.” The third paragraph of section 9 of article 3 provides for the election of a successor at the next general election unless the vacancy happens within two months next before the election, in which case the election shall be held at the second succeeding general election. It seems apparent that the postponement until the second general election, of an election for a successor to fill a vacancy when such vacancy occurred within two months before a general election, was for the purpose of fixing a deadline for the consideration of successors to be chosen. It was for the purpose of giving political parties and the people themselves ample time for the consideration of proper persons to fill such vacancies and to provide that due notice to the electors might be given that such office was to be filled. If there be potency or force in this suggestion, then it will be readily seen that the Constitution must be read in the light of two separate and entirely distinct classes of vacancies. Consideration must be given on the one hand to the case of a vacancy occurring within two months prior to a general election and during the first two years of a four-year term and on the other hand to an entirely different class which would include two-year terms or vacancies occurring within two months prior to the general election at the end of a four-year term, when ordinarily the successor would be elected for the person causing such vacancy.

Before giving consideration to these different classes of cases to be treated, it seems proper to advert to some general principles which form the foundation of the present inquiry. It is a fundamental principle, to be constantly kept in mind, that the right to choose their offices such as Registers of Wills lies in the people themselves. A corollary to this principle and associated with it is the secondary principle that when a vacancy has occurred in the person of the people’s choice, then the office filled by such person shall again be submitted to the people at the earliest available time. The right of the people to elect their officers is a major right and is one of the chief reasons for a Constitution and the right to fill this particular office by election is secured by article 3, section 22.

The right of a Governor to fill a vacancy, on the other hand, is a minor power and is intended only as a temporary and auxiliary expedient to be effective only until the people can speak their will again.

Let us then apply these principles to the classes of vacancies mentioned above. When a vacancy happens within two months prior to a general election during the first two years of a four-year term, it is apparent that an unusual situation arises which must be specifically provided for. The vacancy may occur but a day or two before the election. The people have not anticipated a vacancy. They have given no consideration to suitable candidates, the political parties have made no nominations and there is no time' to get the names upon the ballots. In this situation the Constitution says that the Governor shall fill the vacancy until the second succeeding general election.- The Constitution in this way allows the Governor to exercise his auxiliary power to fill the vacancy until the office shall be restored to election by the people at' the earliest proper time and the auxiliary power to fill vacancies thus supplements the principal power of election.

Let us now consider the other class, viz., where a vacancy occurs in a two-year office within two months before the general electian, or occurs within two months before a general election at the end of a four-year term—for the two cases are similar. This is the situation in this case. Isaac R. Brown died October 29, 1926, four days before the general election. In these two classes of cases now considered, as in the one under direct discussion, the people anticipated the vacancy. They knew a successor was to be chosen and the political parties had held their nominations and the names of the candidates appeared upon the ballot. The people had, presumably, weighed the merits of the candidates and were ready to express their choice. It was their right, under the Constitution, to elect a successor to Brown for the office of Register of Wills at the general election of 1926 and they were prepared to exercise such right. To construe the Constitution in such a way as to allow the Governor to exercise an auxiliary power to fill vacancies until the second succeeding general elections applicable to such cases would so exalt the auxiliary power of the Governor and subordinate the principal power of election by the people that the latter power might be destroyed entirely.

It would seem that when a vacancy happens within two months of a general election and an auxiliary power is given to the Governor to fill such vacancy until the second succeeding general election that this limitation of time is inserted not for the purpose of depriving the people of a right to elect, but as a means of cutting down, as far as possible, the term of the appointee and restore the office to the franchise of the people at the earliest available time.

A construction of the third paragraph of section 9 of article 3 of the Constitution to the effect that every vacancy happening within two months of a general election would be filled by the Governor until the second succeeding general election is fraught with serious possibilities. It is not impossible that the future might see an elective officer resign within two months before the general election at which a successor was to have been chosen. If the Governor should appoint for two more years and if in turn this appointee should resign within two months before the next general election and the Governor have again the power to appoint for two years more, then the Constitution would be nullified and the so-called right of the people to elect their officers would be but a mockery.

Let us suppose another case. Suppose Brown had died on November 29, instead of October 29. It is obvious that there would be a vacancy in an “elective office.” Not happening within two months before the general election, the last clause of the third paragraph of section 9 would not apply, but the first clause of the third paragraph would remain in full force—“in case of vacancy in an elective office * * * a person shall be chosen to said office for the full term at the next general election.” In the suggested case, the people at the general election just past have selected a person to fill the office and he but waits until January first to take office. Can it be possible that in such a case the Governor could appoint a successor until the next general election and that the election already held by the people be completely nullified? Such a construction will not be adopted unless there is no alternative. The construction adopted by this court harmonizes the various provisions and avoids the chaotic results of any other conclusion.

Upon the death of Brown on October 29, 1926, a vacancy existed under the second paragraph of section 9. A vacancy in what? The Constitution had already provided for the election of his successor and the machinery of the law was in full operation for such election on November 2, 1926. The vacancy could only have existed in the unexpired term of Brown—expiring in January, 1927.

If, then, the vacancy in the second paragraph means a vacancy in the unexpired term of the deceased incumbent, how does the vacancy in the third paragraph differ from it? Under the third paragraph vacancies are to be filled at the next general election. Plainly this can only mean that those vacancies are to be filled which are not provided for. When, as in this case, other sections of the Constitution provided for the election of Brown’s successor, then the auxiliary provisions of the third paragraph of section 9 cannot apply. The third paragraph of section 9 of article 3 has no application to vacancies in two-year terms or where such vacancy occurs within two months prior to the general election at the end of the four-year term, when by law a successor would be elected for the person causing such vacancy.

The death of Isaac R. Brown, on October 29, 1926, could not deprive the people of their right to elect his successor four days later, after the Constitution and Laws had provided for such election to fill said office and after the nominees had been chosen and ballots prepared and distributed. If, then, the election of 1926 was a valid one and the term of office a four-year term from January, 1927, then there was no valid election'for Register of Wills in 1928.

The only circumstance that would make us hesitate in the adoption of the views outlined above is a consideration of the facts surrounding the similar case of a vacancy caused by the death in 1910 of Theodore F. Clark, Auditor of Accounts. The cited instance was identical with the present one and the two cases cannot be distinguished. In that case no legal proceedings were instituted for the formal action of a court, but the then Governor, pursuant to the provisions of section 402 of the Revised Code, on September 28, 1910, asked the opinion of the judges. The then judges, on September 30, adopted and returned to the Governor a construction of the constitutional provision under discussion, which was opposed to that we now believe to be Correct. This opinion, not being the opinion of a court in a case pending before it, is not binding on us, but we hold such a high regard for the learning and legal ability of the judges then sitting that their opinion would be very persuasive and almost controlling in an ordinary case. When, however, the construction of the fundamental law of the state and directly affecting one of the most cherished rights of freemen, we conceive it matter is a very important one, involving the people at large in a to be our duty to express the law as we find it to be and to decline to yield our firm opinion except to a formal judicial decision. This is especially true since error, if such there be in our conclusion, can be remedied and corrected in the Supreme Court of this state within a few weeks.

The direct authorities bearing upon the question are quite few. The two cases which bear great similarity to the case at bar were decided by the highest courts of Pennsylvania arid New York. In both instances these courts reached the same conclusion as reached by a majority of this court. Com. ex rel. King v. King, 85 Pa. 103; People ex rel. Jackson v. Potter, 47 N. Y. 375.

Attention might be directed to a subsequent instance in which the advisory opinion of the judges was not followed. November 7, 1922, was the day of a general election. On that day at five o’clock A. M., before the general election started, George M. Fisher, State Treasurer, died. The office was a two-year one and his successor was to be elected on the same day. Fisher was not a candidate for re-election and nominations had been made and ballots distributed, In that case the election was held and the Governor appointed a person to fill the vacancy until the successor, elected on November 7, took office, which was in the succeeding January, 1923. We only mention this case to show that the practical construction of the clause under .discussion is the same as that adopted by a majority of this court.

The demurrer to the plea of the defendant is hereby overruled and upon motion of the attorney for the relator, final judgment will be entered.