State v. Churchman

The information and plea filed, which appear in the statement of the case, disclose fully the contentions between the parties to this proceeding, and it is unnecessary to set them forth in this opinion. Issue has been joined upon the demurrer to the plea, and the main question presented for our consideration and determination is the principal averment contained in the demurrer in words following : “ That the consent of a majority of all the members elected to the Senate of the State of Delaware to the said appointment of the said Edwin R. Cochran, Jr., Esquire, to be the City Judge of the Municipal Court for the City of Wilmington is not required by law.”

We may be permitted to say that we have given the question presented calm and deliberate consideration and we have reached, what seems to us, the only just and impartial conclusion warranted under the provisions of the Constitution and statute applicable to the case.

In noticing certain cases presented in the argument, we may say that the issue before us is not one involving the constitutionality of the act establishing ttm said Municipal Court, as was the main question before the Court in the case of Gray vs. State, 2 Harr., 76; nor is it simply whether the Judge of said Municipal Court is strictly a corporate and not a civil officer, within the meaning of the Constitution, such as was raised in the case of the State vs. The Wilmington City Council, 3 Harr., 294; nor is it whether the incumbent of the office of the said Municipal Court, while holding said office, is disqualified from holding a certain other office under the United States, or in this State, by reason of the provision in the State Constitution denying any person the privilege of holding more than one of certain designated offices, such as was the main question before the Court in the case of Commonwealth vs. Dallas, 3 Yeates, 300.

Differing in its nature and character from any of the cases *176above cited, the question here is whether the appointment of the plaintiff to be Judge of the said Municipal Court made by the Governor required the consent of a majority of all the members elected to the Senate before the end of the session thereof next succeeding his appointment, under any provision contained in the Constitution of 1897 considered in connection with the statute establishing said Municipal Court. Hone of these cases is particularly helpful in determining this question, because neither of them presents or deals with the precise question raised by the pleadings in this case. Our investigation is almost, if not altogether, confined to the Constitution itself, considered in connection with the act establishing the said Municipal Court, and the relation each bears to the question in hand.

It may be said that whatever may have been the character, jurisdiction and powers, either of the corporation of the City of Wilmington or of the City Court, at any time prior to the first day of June, 1883, when, under the act of the General Assembly, passed at Dover April 13th in the same year, the present Municipal Court was established, they are not necessary to be considered in disposing of this case. The fact is that by the said act the said Municipal Court was established with a distinct character of its own, possessing the powers and jurisdiction conferred upon it by the act; and whatever powers and duties former city courts, established for the corporation of the City of Wilmington, possessed and exercised, we must look to the said act 'of 1883, and any amendment thereto, for the grant of power and jurisdiction which was conferred upon and is now exercised by the present Municipal Court. And we need not, and should not, look further than here stated, for, whether the corporation of the City of Wilmington once enjoyed and exercised the franchise of holding a Court, or whether that franchise was subsequently enlarged, it in no wise aids or assists us in reaching a proper conclusion in this case; for it is well settled law that municipal corporations and corporate courts are subject to legislative control, except in so far as the Legislature may *177be inhibited by the Constitution. As was said by the late Court of Errors and Appeals, in the case of Coyle vs. McIntire, 7 Houst., 44, the City of Wilmington being a municipal corporation, all its powers, and, we may add, as well, the jurisdiction and powers of the Municipal Court, under its charter, are subordinate to the powers of the Legislature. And the Legislature, having the power to repeal the corporate existence has likewise the power to alter, amend, or abolish any of the agencies thereof through which the powers of the corporation are exercised, or to change them or to substitute others in their place.

Turning again to the act creating the said Municipal Court, we find by section 14 thereof, being Chapter 207, Vol. 17, Laws of Delaware, that said Court was established, and by section 15, that its powers and jurisdiction, so far as they correspond with and are authorized by and enumerated in Section 15, Article 6 of the Constitution of 1831, are granted and defined. Looking at this special grant of jurisdiction, the conclusion follows inevitably that the said Municipal Court is an inferior court within the scope and meaning of the constitutional provision authorizing its establishment.

Gray vs. State, supra; Mayor and Council of Wilmington vs. Vandegrift, 1 Marvel, 13; Forbes, et al., vs. State, 1 Pennewill, 197.

And whatever may be said of the nature and character of the other powers conferred upon and entrusted to the said Court by said act of Assembly, it has possessed from its very creation a character differing from that of a strictly corporate court. While exercising the duties and functions of a corporate court such as the execution and enforcement of ordinances, etc., for the corporation, it was, nevertheless, created in fact an inferior court such as is so denominated and expressly authorized by Section 15 Article 6 of the late, and Section 30, Article 4 of the present Constitution. And as such inferior court, it necessarily became from the time of its establishment one of the courts under the judicial system of the State authorized by the Constitution.

*178“ It,has been said that it is sometimes quite difficult to draw the line of distinction between strictly corporate duties and public duties * * * but in this case the distinction is so well marked that we are not embarrassed with any perplexing question of that sort * * *. It frequently occurs that the State, in the distribution of its, powers, for the sake of convenience and expediency, confides to certain local governments, within well defined territorial limits, the power to administer criminal justice therein. But because such authority is limited to a certain locality or district, it does not make the duties which the possession of such power imposes, nor the agents charged with the performance thereof any more or less public in their character.”

Mayor and Council of Wilmington vs. Vandegrift. Supra.

The special powers and jurisdiction entrusted to the said Municipal Court by the General Assembly, under the said provision of the Constitution already mentioned, relate exclusively to infractions of certain criminal laws of the State within the corporate limits of the City of Wilmington, the enforcement of which laws in the absence of such an inferior court, or any other court authorized by the Constitution, is vested in the Court of General Sessions —a State Court. It seems to us, therefore, from what we have said, the conclusion that the said Municipal Court is something more than a mere corporate agency, is irresistible. While performing certain corporate duties, it is true, yet it is clothed with higher and more important public duties. It is stamped with a greater dignity and is of more public importance than that of a mere corporate court or agency. And by the specific grant of jurisdiction conferred upon it under constitutional authority, it follows, we think, that said court in the administration of the criminal laws of the State confided to it, although circumscribed within well defined territorial limits, is a public or State agency. And its Judge, charged with duties, it may be said dual in their character—public *179and corporate—is a public officer to the extent, at least, of the enumerated powers and duties imposed upon him by the Legislature, pursuant to said provision in the Constitution. He is a Judge of an inferior court, established by the General Assembly under said section of the late Constitution, which with some alterations therein was incorporated in the present Constitution; and as a Judge of such inferior court he is an “ officer ” within the meaning and purpose of Section 9 Article 3, of the present Constitution, (the salary, fees and emoluments of his office, exceeding the sum of $500 annually) whose appointment must be confirmed by the Senate, as provided by the said last mentioned section.

And while, as we have already said, the main question before the Court in the case of Gray vs. State supra, was an attack upon the validity of the act of the General Assembly, creating the ' Mayor’s Court, it was also objected that the Legislature could not bestow upon the said corporation the right to appoint the officers of such court because of Section 8, Article 3 of the the then recently-adopted Constitution (1831), which provided that “he,” (the Governor) “shall appoint all officers whose offices are established by this Constitution, or shall be established by law, and whose appointments are not herein otherwise provided for.” The Court in meeting this objection, said: —“ these are not officers, either of the State or county, but of the corporation; and, though it should be conceded that the Court, as a Mayor’s Court, under its enlarged jurisdiction and new name, is established by the act of 1832, it is only by the increase of powers of officers existing before the Constitution, and whose appointments are therein otherwise provided for, to wit:—by the saving of the right to the corporation of Wilmington to elect its own officers * * * *. They (the Legislature) were authorized to select this corporation court and bestow upon it all the jurisdiction that they could confer on any inferior court of their creation. Having selected it, and established it as a Court with enlarged powers, the appointment of its officers remains as heretofore in the corporation.” A pertinent and controlling fact in this case *180is that the appointment of the Judge for said Municipal Court as it is now established, does not remain in the corporation of the City of Wilmington, but such appointment is, under the act creating said Court, reposed in the Governor of the State. And whether it be conceded, or not, that the said Judge is an officer of the corporation, we must look outside of the reasoning pursued and the conclusion reached in that case to determine this. And in doing so, it Avill be necessary, as we have already said, to examine the provisions of the present Constitution in connection with the act establishing the said Municipal Court. By the said act it is made the duty of the Governor to appoint and .commission the said City Judge. And said Section 9, Article 3, of the present Constitution provides that the Governor shall have power, unless herein otherwise provided, to appoint, by and with the consent, etc., such officers as he is, or may be, authorized by this Constitution, or by laAv to appoint.

It will be observed that the phraseology of this section is quite different from that of the corresponding section above, contained in the late Constitution. “ Shall appoint all officers whose offices are , established by the Constitution or shall be established by law,” is the language in the latter section; and it will be further observed that the phrase “ or shall be established by law ” in that section imports a future operation and carries with it the purpose of a prospective application.

“ Shall have power * * * to appoint * * * such officers as he is, or may be, authorized by this Constitution, or by law to appoint,” is the language of the present Constitution; and the phrase “ such officers as he is or may be authorized * * * by law to appoint” imports a present as well as a future operation and carries with it a purpose and design as comprehensive in legal contemplation as is the language of the phrase itself; and we fail to see how these words, broad as they are in their meaning and scope, ¡do not embrace and carry with them in their legal significance the appointment to the office of City Judge of the said Municipal Court, *181which appointment by the Governor is expressly authorized by law, under the act of the Assembly creating said Court, duly enacted before and in force at the time of the adoption of the present Constitution. For as was said in the Forbes case, supra, the words “ established or to be established,” in the natural and ordinary meaning, reasonably imply that the framers of this (the present) Constitution contemplated the continued existence of some inferior court or courts, such as said Municipal Court, lawfully established by the General Assembly before, and legally existing at the time the present Constitution was to become operative; and this being so, the language of said Section 9, Article 3, considered in its natural and ordinary meaning reasonably implies that the framers of the present Constitution, having in contemplation the continued existence of the said Municipal Court and the future appointments of its Judge, and likewise the appointments of such other officers as the Governor was then authorized by law to appoint whose salaries exceed $500 per annum, broadened the language of said last mentioned section over that used in the corresponding section in the late Constitution for the purpose of making confirmation by the Senate of such future appointments necessary. We think it altogether improbable, if not unreasonable, to conclude that the members of the late Constitutional Convention, having, as they must have had, the existence, continuance and importance of the office ot said Municipal Judge in contemplation, would not, and did not, throw around the future appointments to said office of Municipal Judge the same check placed upon other appointments by the Governor to minor and less important offices. The language of said Section 9, Article 3 is too broad and comprehensive in its meaning and legal import for any such strict and limited construction as we have been urged to place upon it by the counsel for the plaintiff, in a very able and interesting manner. We think that said section is both “applicable and adequate” for the purpose for which it has been invoked by the defendant in this case.

*182Finally, the last clause of said Section 9, Article 3, provides that unless herein othervrise provided, confirmation by the Senate of officers appointed by the Governor shall be required only where the salary, fees, and emoluments of office shall exceed the sum of $500 annually; and we may reasonably conclude that the real purpose of Section 32, Article 4 of the present Constitution, it being a special provision in relation to the appointment and confirmation of Justices of the Peace and of Judges of such courts as the General Assembly may establish, pursuant to the provisions of Section 1 or Section 30 of said Article 4, was to make the appointments of Justices of the Peace and of the Judges of such inferior courts as the General Assembly may establish, subject to confirmation by the Senate, notwithstanding that the salaries, fees, etc., of such offices might be less than the sum of $500 annually. It is a well known fact that fees, etc., of many of the Justices of the Peace do not, and those of the judges of newly established inferior courts, if such should be established, might not exceed the said sum, and because of this and the importance of such offices we may assume that the said special provision was incorporated in the Constitution for the purpose of making the said last clause of said Section 9 Article 3 inapplicable to the appointments of Justices of the Peace and of the judges of such inferior Courts.

The appointment of the plaintiff to be City Judge for the Municipal Court for the City of Wilmington, having failed of confirmation by the Senate at its session, next succeeding his said appointment, the commission issued to the plaintiff by the Governor for said office expired at the end of the next session of the Senate.

The demurrer is, therefore, overruled, and judgment is rendered for the defendant, viz:

And now, to wit, this twenty-seventh day of March A. D. 1901, all and singular the premises, being seen, heard, and by the Court here fully understood, and mature deliberation being there*183upon had, it appears to the Court here, that the said plea of the said Philip Q. Churchman, the defendant, above pleaded, and the matters therein contained, are sufficient in law to preclude the said Attorney-General from having and maintaining his said action against the said defendant in manner and form as the said Attorney-General has above alleged;

Wherefore the said Court also consider that the said defendant do recover against the said State of Delaware the sum of ten and seventy-five one hundredths dollars, for his costs and charges by him about his defense in this behalf sustained to the said Philip Q. Churchman by the Court now here adjudged, according to the form of the statute in such case made and provided.

And it is further considered by the Court here that the aforesaid office of City Judge of the Municipal Court for the City of Wilmington, in form aforesaid, claimed by him, the said defendant, be allowed to him, the said defendant, and that he be and is dismissed and discharged by the Court here, of and from the premises aforesaid.