The daily gazette., 1883-02-06
TWO MORE OPINIONS.
VIEWS OF JUDGES HOUSTON
AND WALES.
ONE FAVORABLE TO NEW CASTLE.
Judge Wales Thinks the Legislature Can
Increase Representation and District
the state-Judge Houston Differs.
Especial correspondence Of the Gazette. ]


opinions upon increased representation took
up nearly all the time Of the Legislature
yesterday afternoon. Judge Wales sent In
an opinion which was favorable aud Judge
Houston one that was adverse, although In
a halting sort of way, and Judge Wootten
two pages belonging TO his former opinion,
which had been mislaid without him know
ing It when he had sent II to Speaker Bates.
The concluding pages of the opinion OF
resident judge of Sussex are as follows
The Legislature passed an act on the 4th
day Of February 1852 Goth volume, Delaware
laws, p. 63l) which arportion the delegates
unequally among the respective hundreds,
giving some one delegate, and others two,
and II provides by the third section thereof
that the delegates shall be elected by the
voters of the respective hundreds who are
qualified and entitled to vote for representa-
| tlves.
Delegates were so elected, convention
held and a Constitution made which was
submitted to the people and rejected. In
that convention were some of the most dis
/ tinguished gentlemen of the State, and
they made no objection to the mode Of elect
ing the delegates.
| This would seem to favor the mode of
electing by districts, but the Constitution
provides Goth artlcle) that the members Of
a convention shall be chosen In the same
/ ihhunCh, az VIC bAuAC PldGCo anu hb bhC bhtAAC
time that representatives are, by the citizens
entitled to vote for representatives. Whether
the Legislature did not, In passing this act,
overleap the bounds of their Constitutional
power, is question worthy Of very grave
consideration.
| am called upon for an opinion on the
i question submitted to me by the joint res0-
luton of the Legislature and In forming
that opinion must look at the Constitution
Il Il a,.A L.. a.. 81
questions arv raised, and thus make up my
o,0n opinion and confining myself to an In
depreciation Of the Constitution. / am led
to the conclusion that representation may
/ by legislative enactment be uuequdlIy In
creased; but the members cannot be made
elective by districts, except by Consttu-
| tlonal amendment
| JUDGE HoUsToN's OPINION.
The opinion of Judge Houston is as fol-
lows
Gentlemen ofthe General assembly: The
respect which i entertain for your honorable
i bodies requires of me a response TO your
| Joint resolution of the Dist inst, and the
/ grave constitutional questions propounded
In them, which now proceed TO submit to
you, but not without the proper misgivings
on my part as to the soundness of my own
conclusions upon them, in view of the DIFF
4 VI OpAhiOh WhlSu plSNHAAc
among the members of the court ON the sub
ject. For must admit at the outset that
neither of the questions presented is en-
tirely free from doubt in my opinion. Con-
stitutional provisions are usually expressed
in comprehensive and at the same time in
concise terms, and for that reason the appli-
cation of them In particular instances some
times becomes a matter of much doubt and
uncertainty and affords good ground for a
Il nf a.,
ton of them.
What was formerly called and known as
the three lower counties in Delaware con-
stituted regularly organized political
government Of the three counties with an
i equal representation in the Legislature long
! before they became an independent State,
and with that same political equality they
have constituted the State from the period
of the Revolution down to the present time.
And would not any change in that equality
now, however much or well demanded, con-
stitute one of the gravest matters that could
be introduced into the Constitution under
| any mode of amendment or alteration pro-
vided for In itl For myself have always
80 thought, although many may differ with
me radically on this point. l put this
question because It is upon the great i'm
portance which | attach to the proposed
measure that my opinion turns on the first
/ QuCsblOn pIOpOhhAS0 W hAo al eAS ANooAA-
tions.
There are but two methods OF amending
the Constitution provided for in 1t. One is
BY the Legislature and the other is by O
convention of delegates called for the pur-
pose-both prescribed In the ninth and last
article of II and which alike embrace plen-
airy power over the subject and every pro
vision contained in the Constitution. It is
however, provided In II that certain acts oi
1 aaa Al M ha fa1 hu fha
Legislature with the concurrence of two
thirds at least OF all the members of each
branch of it., among which are acts OF incor.
poration, an increase in the number OF
Justices of the peace allowed by the Consti
tuition and laws In the several counties
, such other courts In addition to those al
ready established as the General Assembly
I by such majority of votes may from time
/ | 10 time establish and an increase In tht
| number of Representatives and Senators IL
| each of the counties by a like concurrent
vote in both branches of the General As
. sembly when It may be judged by then
to be necessary. Now while these pro
I visions indicate that the trainers o
, the Constitution considered that thes'
measures were of sufficient importance u
= require more than the usual majority of th'
two Houses for the enactment OF them, the.
i. at the same time indicate that they attached
: about an equal degree of Importance h
them, and If we are to interpret the meas
I ure last mentioned as contemplating merel.
an quail increase ip the number of Repre-
3 sentatiVes and Senators In each Of tn
I counties, without in any manner impairini
their equality OF representation and powe
u In legislation and government Of the State
!, no one, presume, would consider 1t out c
d place when ranked In importance wit
!. them. can hardly believe, however, tina
any delegate In the convention, at leas
II from Kent or Sussex counties, could hav
= understood the provisions of the Constitu
ton now in question to sanction anythin
n but an equal increase of the Representative
and Senators In each of the counties, by th
). method of providing for 1t, or that anythin
l. short of q formal amendment Of the Const
"A tuition In one or two methods provided In
II would be sufficient to authorize an unequI
increase in the number of them rs betwee
q the several counties.
4 But let US turn to the phraseology {
~ these provisions and see II this Is not aftt
all the true meaning and import of 1t. The
are as follows; "There ahall be seven Re
resentafives chosen In each comfy until
greater number of Representatives shall |
the General Assembly be judged neeessar
and then, two-thirds of each branch of u
Legislature concurring, they may by Ia
make provision for increasing their nur
|, ber." "There shall be three Senators chos'
y In each county. When greater number
Senators shall by the General Assembly
Judged necessary, two-thirds Of each brant
copcurring, they may by law make pr
vision for Increasing their number; but u