The daily gazette., 1883-01-31

/
the views above presented it is too plain for
further observation that the organ of State
| sovereignty State Legislature--can do
/ whatever 1t chooses in the matter OF exer-
| cisIng the popular will except where il is re-
| strained from SO doing. The Legislature in
passing laws, does not look into the Consti-
l tuition to see whether 1t may do a particular
act Of legislation, but only to ascertain
whether 1t is prohibited from doing 1t. If
] there is no express prohibition nor any
l necessarily existing In the nature Of things,
viewed In the light OF the character of the
| Government and It's ends and purposes, then
/ the legislation may be enacted and all are
bound by It. We are now able TO come up
to the very question propounded by the
| above resolution.
The second section of Article III of the
| Constitution Of this State cantains the fol-
/ lowing provision
sFThere shall be seven representatives
1 chosen In each county until greater num-
Der Of representatives shall by the General
Assembly be judged necessary and then,
wo-thirds OF each branch of the Legisla-
| ture concurring, AEhey may By law make
provision for increasing their number"
The third section of the same article
real Us thus;
There shall be three Senators In each
county. When greater number of Sena-
torb shall by the General Assembly be
Judged necessary, two-thirds of each branch
coucurring, they may by law make proyi-
sion for increasing their NUMBER but the
number Of Senators shall never be greater
! than one-half nor less than one-third the
| number Of Representatives"
The language of these Articles is very
plain and needs no exposition. But the
question is - can this increase be made
by hugmenting the representation from one
county alone or two counties! Must IL be
made by an equal distribution of the in
CREASE among them all
The Constitution is entirely silent with
respect to that. At the time these clauses
found their way into the Constitution Sus-
sex had the most population, Kent being
only 4l3 behind her and New Castle was
1895 behind Kent. Up to 1880 New Castle
had only got ahead OF Sussex ny z, 2,l05 Of
population.
The convention met to amend the Consti-
tuition in November, 1881. By that time
mahufactories Of cotton and woolen fabrics,
to lay nothing of other articles, had become
we'll established on the Brandywine and else
where, and IL must have been apparent
thai inequality Of population Especially as
Kent had not increased any in the decades
succeeding the last of the preceding century
butt on the contrary, had fewer people in
lSSD than she had in 1900 resulting from
the spread of manufacturing industries
wolld soon send New Castle far ahead of
her sister counties. 1t would seem reason
abb, then, to suppose that some steps, if
any, were thought necessary, would have
beeh taken in the convention Of 1881 to Sc
cure an increase Of representation without
theperll of want of legislative strength, at
the ratlfying session, to secure the necessary
thrte-fourths, or the greater one of being
ahle to accomplish the desired end through
a Slate convention.
Hut search into the proceedings of 1881
has enabled me to Hnd but one motion with
respect to membership of the Houses, and
that was made by Mr.. Rogers of New Castle
that the number of Senators should be
touF from each county. 1t was voted
down. IL appears to me not unreas-
sonAbte to draw from the facts
above stated, with respect TO non-action In
the convention, the conclusion that the
members from that county must have con-
tented themselves with the belief that the
Legislature could at any time give them in
creAse II they needed it--there being no
language in the instrument expressly for
bidllng it. Three Of the members from
New Castle county in that convention were
accomplished lawyers IN the first rank of
Their profession.
There being nothing IN the Constitution
prohibtory of legislation at one session to
make the necessary increase, what is there
In the nature oil a State Government or in
the fitness of things (if such considerations
should seem to be entitled to any weight
to oppose action at any time The former
would not be affected in the least by in
equality OF county representation at any
ratt can conceive of no way In which 1t
would. And, can discern no reason why
any member of the convention, much less
SO enlightened body, should have thought
thai increase should be made nowhere If
notmade everywhere. That would be, i think,
to impute to them want Of liberality of
sem ilnent and appreciation of the nature of
a republican government they would have
SHRINK from acknowledging. They must,
as intelligent men, have foreseen that the
immense industries that would grow up to
utilize the splendid water powers of the
New Castle rivers and creeks would soon
draw rapidly within her limits, as was then
beginning to be done steadily, population
that would increase In like rate with that of
other sections similarly favored. II that
convention, foreseeing this, did not think fit
to prohibit any increase of representation
that should not be alike for all the counties,
what reason is there for finding one to exist
in The simple provision with respect to the
nuInber for each branch mentioned above
Why not say, II such was the meaning of
the convention, that no increase should be
maie unless equal for each of the counties
They did not say 1t and, as believe, did
moi mean 1t. There were some lawyers
there whose habit was to leaving nothing to
inference. Besides, we must suppose the
eminent citizens who composed that body of
1881, as well as their predecessors of 1893,
| were men acting under a sense of justice.
| What sort of justice would 1t be to decree
that no inequality, however great, should
ever make representation of every county in
| the Legislature otherwise than equal |
| cannot see anything Ia the clauses quoted
or In the appropriateness of things to pro-
hibit the Legislature from making an in
| crehse of their body in what county they so
ever they choose; ON the contrary, from
what | have before said, it must be evident
| that believe the power to increase, TO ex-
| list, with no impediment to Its exercise but
the necessary two-Ghirds vote ofeaeh branch
of the Legislature.
| i have treated the question first submitted
abktractly, requiring lao aid from any action
| in an analogous provision. But there is
sudh one, and it has been interpreted over
| and over again. | refer to the following
| clause, being the 9th Section of Article III
| of The Constitutions of 1702 aud 1887
| The Governor shall appoint competent
number Of persons to the office of Justice of
tho Peace, not exceeding twelve In each
eoNnty, until two-thrds of both houses of
tho Legislature shall by laws direct an adj
dition to the number, who shall be commits
stoned for seven years, If so long they be-
have themselves well, but may be removed
blythe Governor within that time on conyic-