State Ex Rel. James v. Schorr , 45 Del. 18 ( 1948 )

By Chapter 182, Volume 46 Laws of Delaware, the legislature created a Department of Elections for New Castle County of eleven members, five of whom were to be nominated by the State Chairman of each of the major political parties and the remaining members by the Governor. The Act also provides that "All of the members so nominated shall be appointed by the Governor as members of the Department of Elections. There shall never be more than six members of any one political party or faith." Certain qualifications for the office are, also, required. The majority of the court are of the opinion that the mode of appointment to the offices created is an indivisible provision and violates the general scheme of the State Constitution. We are unable to agree with the latter conclusion. They, necessarily, concede that the legislative power of the General Assembly "is as broad and ample in its omnipotence as sovereignty itself, except insofar as it may be curtailed by Constitutional restrictions express or necessarily implied." 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 by this court, 1 Terry 496, 14 A.2d 378. In other words, the majority concede that the State Constitution is not a grant of power and that the legislature, as the representative of the people, has all of the legislative rights and powers that are not expressly or impliedly taken away by that instrument or given to Congress by the Federal Constitution. id. The legislature could, therefore, have named the officers in the Act creating the offices had it chosen to appoint them in that manner. State ex rel. Morford v. Emerson, 1Terry 233, 8 A.2d 154. In that case, 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." But the legislature could have adopted other methods of selecting statutory officers. See Sinking Fund Com'rs v. George,104 Ky. 260, 47 S.W. 779, 84 Am. St. Rep. 454. The creation of the offices, the qualifications of the officers and the mode of their appointment were all legislative powers. The majority of the court, also, at least tacitly concede that there is no constitutional provision which prohibits the legislature from delegating the power to appoint persons to fill statutory offices to a certain class of agents. They say, however, that because of the division of governmental powers into legislative, executive and judicial, the limitation must be implied that the appointive agents selected should have some reasonable connection with some branch of the State government.

They, also, say that a political party is a mere voluntary organization, the chairman of which is "accountable to no one except its own organization." But all legislative Acts are presumed to be valid and can only be declared void when clearly in violation of some restriction in the constitution. We can find no such express or implied limitation in that instrument and are forced to the conclusion that the provision in Chapter 182, Volume 46 Laws of Delaware for the selection of persons to fill the offices provided for in that Act, is valid. Driscoll v. Sakin.121 N.J.L. 225, 1 A.2d 881, approved by a majority of the court on opinion below, 122 N.J.L. 414, 5 A.2d 699, 866; Bradley v. Boardof Zoning Adjustment, 255 Mass. 160, 150 N.E. 892; Commonwealth ex rel. District Attorney v. Gibson, 316 Pa. 429, 175 A. 389;Overshiner v. State, 156 Ind. 187, 59 N.E. 468, 51 L.R.A. 748, 8Am.St.Rep. 187; Sckolle v. State, 90 Md. 729, 46 A. 326, 50L.R.A. 411; In re Bulger, 45 Cal. 553; 42 Amer. Jur. PublicOfficers, Paragraph 92; 29 C.J.S., Elections, § 60, Pages 80-84;Throop on Pub. Owcers, Paragraph 85; see, also, State ex relButtz v. Marion Circuit Court, Ind. Sup. 1947, 72 N.E.2d 225.

Driscoll v. Sakin, supra, involved a strikingly similar statutory provision. The court, in sustaining the constitutionality of the Act, said [121 N.J.L. 225, 1 A.2d 882]:

"It * * * seems settled that where the Constitution of this State is silent the legislature may determine the manner in which a public official may be named, and may delegate the selection to others and that the Executive may be clothed with no discretion in the issuance of the commission. Nor do we see any encroachment upon the authority of the executive. The executive never had a constitutional power to appoint members of County Boards of Election. The County Boards were created by the legislature which provided in plain words the manner of their selection."

That seems to be the controlling principle of the case, though, in commenting on the reasonableness of the legislative policy and the functions of political parties, the Court had previously said:

"The act creating the office (of County Board of Election) provides for the nomination by the state chairman of the two most powerful political parties of two of the members of the board. To insure a democratic form of government, it is necessary that there be at least two strong political parties holding different views upon political questions. Only as a result of public discussion can a wise policy be adopted. To insure honest elections it is essential that the county board be made up at least by the choice of both powerful political parties. The executive committees of political parties in this country act in matters of high public interest, and so great is their power that they are subject to constitutional restraint and hence may not act as local organizations may. Nixon v. Condon, 286 U.S. 73,52 S. Ct. 484, 76 L. Ed. 984, 88 A.L.R. 458."

In Overshiner v. State, supra, the appellant had been convicted of practicing dentistry without a license, in violation of a statute. The Court sustained the validity of the provision for the selection of a Board of Examiners of five reputable practising dentists, one of whom was to be appointed by the Governor, one by the State Board of Health, and three by the Indiana State Dental Association. The constitutionality of the Act was the only question before the court. It was contended that the legislature could not confer the power of appointment upon a private corporation or individual outside the executive department. The courts pointed out that [156 Ind. 187,59 N.E. 469]

"where the constitution is silent, and the question is one of public policy, or relates to the best means or agency for the attainment of some governmental end, it must be presumed that the framers of the constitution intended to invest the legislative body with a large discretion in the selection of the agencies most suitable and beneficial to the public."

The latest pronouncement of the Indiana Supreme Court seems to be in accord with this case. See State ex rel. Buttz v. MarionCircuit Court, supra.

Our conclusion is, therefore, that when not restricted by the constitution, the legislature may usually provide for the exercise of the appointing power by any department of the government, or by any person or association of persons whom it may choose to designate for that purpose. Statutory provisions, involving the application of these principles, are not unknown in this State.

An Act, relating to the registration of voters (Vol. 43, Lawsof Del., Chapt. 121) provides:

"* * * that the total number of registration officers in each representative district shall be divided as equally as possible between the two leading political parties, as the same shall be determined upon by the said respective Boards of Registration at the time of making the appointments. And further, for each appointment accredited to any political party under this Section, the Executive Committee of such political party in the particular Registration Department District shall furnish the Board of Registration of said Registration Department District, on or before the first day of June of the year in which said appointment is to be made, a list of three names of properly qualified persons, from which list the said Board of Registration shall make its appointments."

The Boards of Medical Examiners are created by statute and the Governor is directed to appoint from lists of members submitted by the Medical Societies. Revised Code, 1935 Paragraph 918. Members of the State Board of Pharmacy, likewise a statutory board, are, also, appointed each year by the Governor from a list of five names submitted by the Delaware Pharmaceutical Society.Rev.Code, 1935, Paragraph 936. Similar methods are provided in the appointment of the State Board of Examiners of Graduate Nurses. Rev. Code, Paragraph 957, as amended by Volume 44, Lawsof Del. 299; and in the appointment of the State Board of Dental Examiners. Rev. Code, Paragraph 967. The charter of the University of Delaware provides for the appointment of a specified number of trustees by the Governor and for the election of a designated number by the Board. It, also, provides that the Governor, the President of the University, the President of the State Board of Education and the Master of the State Grange shall be ex officio members. Rev.Code, 1935,Paragraph 2776.

In this state, candidates for elective offices in general elections must be persons certified as such "by the Presiding Officer and Secretary of the several State Party Conventions or Committees." Vol. 44, Laws of Del., Chap. 119. In case of the death, removal before an election, the "Chairman of the State, County, Hundred or District Political Organization, by which such candidate was nominated" is authorized "to fill such vacancy."Rev.Code, 1935, paragraph 1815. Section 1782 of the Revised Code 1935, also, prescribes the qualifications of electors to vote at any primary election. It is unnecessary, however, to determine whether political parties, or their officers, can be regarded, in any sense, as state agencies. They exercise some public functions in the nomination of candidates for public offices and, in a broad sense, are sometimes said to come within that class. SeeState, ex rel. Buttz v. Marion Circuit Court, supra; Nixon v.Condon, 286 U.S. 73, 52 S. Ct. 484, 76 L.Ed. 984, 88 A.L.R. 458. But that is not the controlling factor in this case.

The majority opinion, also, attacks the Act on the ground that the Governor was given no discretion in appointing ten of the members of the Department of Elections for New Castle County. But we are considering appointments of statutory officers where the Governor has only such power as the legislature, in its discretion, may give him. See State ex rel. Morford v. Emerson,supra; Driscoll v. Sakin, supra.

Section 9, Article III of the Constitution of 1897 provides:

"He (the Governor) shall have power, unless herein otherwise provided, to appoint, by and with the consent of a majority of all the members elected to the Senate, such officers as he is or may be authorized by this Constitution or by law to appoint."

That provision is, therefore, a grant of power only to the extent that it is specifically given by the Constitution or by statute, State ex rel. Morford v. Emerson, supra; and the legislature provided in plain words the manner of the selection of ten members of the department. Driscoll v. Sakin, supra. The fact that the Governor was directed to commission the officers appointed in accordance with the provisions of the Act is of no material significance. Driscoll v. Sakin, supra.

As the important question is whether the Constitution prohibits the delegation of the legislative power to appoint statutory officers to persons not members of the State government, we are unable to see how any of the cases relied on by the minority of this Court can be distinguished on the ground that the named agents were only required to appoint from a list of names furnished by each of the major political parties. The number that could be named from any one political party was, also, limited.

Furthermore, in State ex rel. Saulsbury v. Lewis, 5 Boyce 213, 91 A. 993, the court sustained and enforced an Act (Chapt. 40,Vol. 21, Laws of Del.) which required the Department of Elections of the City of Wilmington to appoint election officers from a larger list of qualified persons submitted by the city executive committee of one of the two leading political parties.

Rice v. Foster, 4 Harr. 479, cited by the majority, involved a very different question. There, the court held that the legislature, without express constitutional authority, could not refer to the vote of the people the determination of whether the sale of liquor should be prohibited in the various counties of the State. The decision was based on the theory that the power to legislate, conferred on one government body, could not be delegated by it. See Dangel et al, v. Williams et al., 11 Del. Ch. 213,99 A. 84. Substantially the same question was involved in most of the cases cited in the majority opinion.

The relator, also, claims: (1) That the Act in controversy establishes a political test for members of the Department of Elections for New Castle County and thereby violates Article XIV of the Delaware Constitution and the "equal protection" clause of the Fourteenth Amendment to the Federal Constitution; (2) that its provisions are adverse to a republican form of government; and (3) that the title of the Act does not comply with Article11, Section 16 of the Delaware Constitution. The court below fully considered and rejected all of these contentions and we are in accord with its conclusion.

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

On Reargument Reargument granted on the question of whether the opinion of the majority of the Court declaring Section 3 of Chapter 182, of Volumn 46, of the Laws of Delaware, unconstitutional, rendered the repealing clause in Section 3 of said Act inoperative, or whether the Department of Elections for New Castle County consisting of nine members as provided for by Paragraph 1746,Section 2, Chapter 57 of the Revised Code of 1935, as amended, was still in existence.

RICHARDS, Chief Justice.

The facts of this case fully appear in the opinion handed down by the majority of the Court on September 16, 1948, and it is unnecessary to restate them here.

We must, however, again call attention to Section 3 of Chapter 182, Volume 46 of the Laws of Delaware, which reads,

"Section 3. That 1746. Sec. 2. Chapter 57 of the Revised Code of Delaware, 1935, as amended, be and the same is herebyrepealed, and a new Section submitted in lieu thereof to be knownas 1746. Sec. 2 as follows:

"1746. Sec. 2. There shall be appointed eleven members of the Department of Elections for New Castle County, on the fifteenth day of April, 1947, and every four years thereafter on the fifteenth day of April five members of which are to be nominated by the State Chairman of one of the two leading political parties; five members of which are to be nominated by the State Chairman of the other of the two leading political parties; and one member of which is to be nominated by the Governor. All of the members so nominated shall be appointed by the Governor as members of the Department of Elections. There shall never be more than six members of any one political party or faith. When any member ceases to hold office in the Department due to death, resignation, or for any other cause whatsoever other than the expiration of a full term, the nominating authority which originally nominated that member shall nominate a successor to fill the vacancy which nominee shall be appointed by the Governor for the residue of the term."

Paragraph 1746, Section 2 of Chapter 57 of the Code of 1935, as amended, above referred to, provides for a Department of Elections for New Castle County consisting of nine members.

The majority opinion held that the constitution vested all the sovereign power of government in the Legislative, Executive and Judicial branches of the state government; that the portion of section 3 of chapter 182, of volume 46 of the Laws of Delaware, which provided for a Department of Elections for New Castle County to consist of eleven members, five of whom were to be appointed by the chairman of one of the two leading political parties, and five of whom were to be appointed by the chairman of the other of the two leading political parties, was unconstitutional because it delegated the power of appointment to a state office to an agency which was not a part of and had no connection Legislature having failed to carry out its intention to create a Department of Elections for New Castle County consisting of eleven members, the Department of Elections of New Castle County consisting of nine members, as provided for in paragraph 1746, section 2 of chapter 57, of the Code of 1935, as amended, was the legally constituted Department of Elections for New Castle County.

A reargument was granted on the sole question of whether the opinion of the majority of the Court left the repealing clause of section 3 of Chapter 182, of Volume 46, of the Laws of Delaware, in force, or whether the Department of Elections for New Castle County consisting of nine members is restored.

The Respondents Below, Defendants in Error, contend that the repealing clause is still in force and that the Department of Elections for New Castle County consisting of nine members is no longer in existence. In support of that position they rely upon the case of Equitable Guarantee and Trust Company v. Donahoe, 3Penn. 191, 49 A. 372, 376, decided by the Court En Banc in this State. That case holds, that where an amending act by express language repeals a certain section of an original act, and substitutes a section therefor which is later found to be unconstitutional, the section of the original act is not restored but the repeal thereof is still in force. If the facts involved in that case had been similar to the facts in the case now under consideration it is impossible to say what effect it might have had on the decision. The following language is found in the concurring opinion of Grubb, J.:

"Therefore, although the Legislature intended to amend the Act of 1897, and to continue taxation of investments, yet it clearly did not intend to amend it by continuing the distribution provisions of section 12 thereof unaltered."

We find the weight of authority to hold, that where a statute by express language repeals a former statute, and attempts to provide a substitute therefor by a method which is found to be unconstitutional, that portion of the statute which provides for the repeal of said former statute is void and of no effect.

The principal question to be considered in every case, is whether the portion which is repealed is severable from the rest of the statute, or whether, the Legislature intended the repeal to take effect in any event. Annotation 102 A.L.R. 802; Mazurekv. Farmers' Mutual Fire Ins. Co., 320 Pa. 33, 181 A. 570,102 A.L.R. 798; State v. Rice, 115 Md. 317, 80 A. 1026, 36 L.R.A. (N.S.) 344, Ann. Cas. 1913A, 1247; State v. Benzinger,83 Md. 481, 35 A. 173; State v. Thrall, 59 Ohio St. 368, 52 N.E. 785;Ward v Commonwealth, 228 Ky. 468, 15 S.W.2d 276; Randolph v.Builders' Painters' Supply Co., 106 Ala. 501, 17 So. 721; Stateex rel. Law v. Blend, 121 Ind. 514, 23 N.E. 511, 16 Am.St.Rep. 411; People v. Fox, 294 Ill. 263, 128 N.E. 505; Chicago, R.I. P.R. Co. v. McClanahan, 151 Ark. 77, 235 S.W. 380; State ex inf.Barrett v. Joyce, 307 Mo. 49, 269 S.W. 623; People v. De Blaay,137 Mich. 402, 100 N.W. 598, 4 Ann.Cas. 919; In re Rafferty,1 Wn. 382, 25 P. 465; State v. Candelaria, 28 N.M. 573,215 P. 816; Porter v. Board of Com'rs of Kingfisher County, 6 Okla. 550, 51 P.741; Galveston W.R. Co. v. Galveston, 96 Tex. 520,74 S.W. 537; Barringer v. City Council of Florence, 41 S.C. 501,19 S.E. 745.

It is also well settled, that where a part of a statute found to be unconstitutional is so connected with other parts as to make them mutually dependent upon each other as conditions, considerations or compensations for each other, in such a manner as to justify the belief that the Legislature intended them as whole, they stand or fall together. State ex rel. Law v. Blend,supra; Mazurek v. Farmers' Mutual Fire Ins. Co., supra.

The prevailing condition of the law on this subject is very well expressed in 50 Am.Jur., Section 521, Page 529:

"The question whether a provision in an unconstitutional statute, repealing a former law on the subject, falls with the Act of which it is a part, depends primarily upon the intention of the legislature. Ordinarily the repealing clause is not regarded as having been intended to remain in effect notwithstanding the invalidity of the remainder of the statute, and the repealing clause is accordingly itself regarded as invalid and inoperative as a repeal of the former law. This rule applies to specific repeals. A different result may be reached, however, where it appears that the legislature intended to repeal the former law in any event."

This prevailing condition is also well stated in 1 Lewis' Sutherland Statutory Construction, 2nd Ed., Section 245, Page 457:

"A repealing clause in a statute may be valid, although every other clause is unconstitutional, if such is plainly the legislative intent. But where the repeal is intended to clear the way for the operation of the Act containing the repealing clause thereby showing intention to displace the old law with the new, if the latter is unconstitutional the repealing clause would be dependent and inoperative. "Where the evident purpose of the repeal is to displace the old law and substitute the new in its stead, the repealing section or clause, being defendant upon that purpose of substitution, necessarily falls when falls the main purpose of the Act'."

In the case of Randolph v. Builders' and Painters' SupplyCompany, supra, an Act was passed by the legislature of the State of Alabama providing for liens for mechanics and material men, and repealing certain sections of a prior Act dealing with the same subject. The Supreme Court of that State declared the later Act to be unconstitutional, and in holding the prior Act to still be in force used this language [106 Ala. 501, 17 So. 725]:

"It would, indeed, do violence to the legislative intent, to presume they intended to repeal the mechanics' lien law entirely in this state, if the legislation they were adopting, with a view of perfecting it, and making it better, failed because of constitutional infirmity."

An examination of the provisions of Chapter 182, of Volume 46, of the Laws of Delaware, leads to the conclusion that the legislature did not intend to abolish the Department of Elections for New Castle County, but simply to increase the membership from nine members to eleven members.

Section 2 thereof repeals 1745A Section 1A of Chapter 57, of the Code of 1935, as amended, which provides for a Department of Elections for New Castle County consisting of nine members, and substitutes in lieu thereof a new section 1745A Section 1A which contains the following provisions:

"That there shall be a Department of Elections for New Castle County which shall be composed of eleven members and shall have jurisdiction over all matters and things now vested in the Department of Elections for New Castle County as now constituted, and shall possess, enjoy and exercise all and every the rights, powers and privileges which are now held, possessed, enjoyed and exercised by the Department of Elections of New Castle County, as fully and completely as the said Department of Elections now by law is authorized so to do, and such other rights, powers and privileges as by this Act conferred, and by any law of this State now or hereafter enacted not inconsistent with the provisions of this Chapter."

Section 4 thereof provides:

"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."

That the legislature did not intend to discontinue the Department of Elections for New Castle County, by enacting Section 3 of Chapter 182, of Volume 46 of the Laws of Delaware, also appears from Section 2 of Chapter 185 of the Laws of Delaware, enacted at the same session and which became effective on April 15, 1947, the same date upon which Section 3 of Chapter 182 became effective. This additional Act which may be considered a companion act contains the following pertinent language in Section 2:

"The members of the Department of Elections for New Castle County as constituted from time to time after April 15, 1947, shall constitute from and after the effective date of this Act the Bureau of Registration for New Castle County. The president of the Department of Elections shall be the president of the Bureau of Registration. * * * The members of the Bureau of Registration shall receive no compensation for their services as such other than their compensation as members of the Department of Elections."

Certainly the Legislature did not intend to do away with the Department of Elections for New Castle County and leave the people of that County without any provision for exercising their right of franchise at subsequent general or special elections held in that County. On the contrary, the provisions of Chapter 182 of Volume 46 of the Laws of Delaware disclose the intention of the Legislature to continue in existence the Department of Elections for New Castle County but to change its membership from nine members to eleven members. The method adopted by the Legislature to bring about this change having been found to be unconstitutional, the Department of Elections for New Castle County consisting of nine members, as provided for by Paragraph 1746, Section 2 of Chapter 57, of the Revised Code of 1935, as amended, is still in existence and is the legally constituted Department of Elections for New Castle County.

We find the case of Equitable Guarantee and Trust Company v. Donahoe, supra, to be contrary to the weight of authority in this country and for that reason it is hereby overruled.

HARRINGTON, Chancellor:

As I view it, the determination of this case does not require any consideration of the rule stated in Equitable Guarantee and Trust Company v. Donahoe, 3 Penn. 191, 49 A. 372; but if the question is pertinent, I agree with the conclusion of the majority of the court that it was incorrectly decided.

I am, however, unable to agree with the majority conclusion that Section 3, Chapter 182, Volume 46, Laws of Delaware, violated the Constitution, and with their refusal to permit a reargument of that question.

One of the conclusions in their original opinion was that the legislature could not provide for the selection of statutory State officers by persons having no connection with the State government, and that committees of political parties were mere private corporations not within that rule. The recent cases ofSmith v. Allwright, 321 U.S. 649, 64 S. Ct. 757, 88 L. Ed. 987, 151 A.L.R. 1110, and Rice v. Elmore, (4th Cir.) 165 F.2d 387, cited by the petitioners in support of their motion for a reargument seem to have sufficient bearing on that question to require some consideration. Both involved the acts of political parties in primary elections, and in each it was argued that such committees were mere private organizations, not subject to the equal protection clause of the Federal Constitution. The contentions made were rejected.

In Smith v. Allwright, supra, the court said [321 U.S. 649,64 S. Ct. 765]:

"We think that this statutory system for the selection of party nominees for inclusion on the general election ballot makes the (political) party which is required to follow these legislative directions an agency of the state in so far as it determines the participants in a primary election. The party takes its character as a state agency from the duties imposed upon it by state statutes; the duties do not become matters of private law because they are performed by a political party."

The principle stated in Nixon v. Condon, 286 U.S. 73,52 S. Ct. 484, 76 L.Ed. 984, 88 A.L.R. 458, was, therefore, applied.

In Rice v. Elmore, supra, the legislature had repealed all statutory provisions relating to holding primary elections by political parties, but the court said [165 F.2d 391]:

"When these officials participate in what is a part of the state's election machinery, they are election officers of the state de facto if not de jure, and as such must observe the limitations of the Constitution. Having undertaken to perform an important function relating to the exercise of sovereignty by the people, they may not violate the fundamental principles laid down by the Constitution for its exercise."

Applying these cases to the Delaware statutory provisions set out in the earlier minority opinion, it seems reasonable to conclude that the chairmen of the executive committees of the major political parties, to whom the power to name certain statutory officers was given by Section 3, Chapter 182, Volume 46, Laws of Delaware, are in some respects State agents. If that be true, that Act would seem to be consistent with the Constitution even under the theory of the majority of the court.

TERRY, J., concurs.