The daily gazette., 1883-02-06

county would gradually, II not rapidly, sur
| pass that of each of the other counties, and
nothing was more natural and reasonable
than that the trainers Of our present consti-
| tuition should take into consideration some
mode Of providing for an increase of repre-
sentatives and senators, not only for New
Castle, but also for Kent and Sussex, as
such increase might be required by the ext
gencies of the future.
The number of members of the Legislature
has been the same from the beginning as It
is now, namely, three senators and seven
representatives from each county, there hav-
ing been no change In this respect during
| period of one-hundred years.
The Constitution of 1776 provided for the
| amendment of any Of It's articles by the Leg
| islature, on vote of Is representatives and
| seven senators. Article ii Of the Constitu-
tion OF 1899 contained substantially the same
provisions for enlsrging the Legislature as
those contained in the Constitution of 1881.
The convention of 1881 found this article
adapted to the desired end of making Just,
fai and equitable increase of senators
and representatives from the several
counties, as their growing and varying pop
ulations might demand, and made it part
of the new instrument. 1t would be doing
injustice to the memory and wisdom of the
members of that convention to impute TO
sight as would be implied by saying that
they did not contemplate the future posi-
bility of large disproportion In the number
OF voters In the several counties, or that, If
they did, they deliberately decided to make
no provision for fair and Just representa-
tion, there would be less need and urgency
perhaps none at all-for any increase in the
number of Legislative delegates, so
long as the population in the
three counties should advance at
the same rate; but when that advance
should become unequal aud the growth of
one county exceed that of both the others
combined, the legislative power conferred
by article ii would, 1t was thought, be
ample to meet the changed condition of the
people. The convention of 1881 contained
some of the ablest men of their day in this
State and county, experienced in the man.
agement of public affairs and learned In the
science Of government. None knew better
than they that the essential feature of a
popular government Is a due and equitable
relation between population, representation
and taxation, and it is unreasonable to sup
pose that they intended to or that they did
establish constitution which excludes any
and every provision for readjusting the basis
Of representation in the Legislature, not
withstanding one county might exceed both
of the others in the number of its voters
and in the amount of revenue paid to the
State in the ratio of two to one.
This question is not new one 1t has
been mooted more or less frequently for the
last 25 years and during that time, engaged
the attentions of lawyers and judges, but it
admits of no authoritative decision except
by the members of the General Assembly Of
the State, acting In accordance with their
constitutional power and with a conscien-
tious sense OF what is right and Just. have
no doubt that the Legislature has the power
to adjust the number of Representatives and
Senators from the several counties on the
basis of population, irrespective of county
lines. This conclusion is In perfect har-
mony with article of the Constitution and
with the declaration In its preamble that
"all Just authority in the institutions of
political society is derived from the people,"
answer the second question also in the
affirmative. The Constitution, after pre-
scribing that Representatives and Senators
should be chosen by the citizens residing in
the several couuties, that all elections shall
be by ballot aud describing the qualiiica-
tions of the persons who shall be entitled to
vote and appointing the day on which
general elections shall be held, is silent as
to any further regulations of the manner Of
making such elections. 1t is true, that in
the early history of the State, and as late as
the year 1911, all general elections were
held at the county seat of each county, and
therefore the system OF representative or
legislative districts could not, up to that
date, have been put into practical operation;
but constitutions are framed with view
| to changes in the customs and conditions
of the people, and the fact that there has
| been no occasion to exercise constitutional
power cannot be received as an argument
| against its existence, or against the right TO
| use 1t when 1t becomes necessary or expe-
dent to do so. Theoretically, our State
government is founded on the will of ma
| jority of its citizens, but the constitution has
not expressed any rule on that subject, and
the Legislature, in the exercise of a conceded
power, has by statute enacted that Sin all
| elections, unless 1t be otherwise expressly
provided a plurality, the highest number
| of votes shall make a choice, except where
| this principle is defeated by two persons
having the same number of votes for the
| same office" If, moreover, 1t be correct
| rule of exposition that the Legislature of a
State possesses every sovereign power, which
has not been expressly prohibited by the
constitution, It would seem to follow that no
violence would be done to the letter or spirit
Of the constitution of Delaware by dividing
one or all of the counties into legislative
districts, and thus obtaining a more COM
plete local representation of the people. Such
a system would be equally an election "by
the citizens residing In the several counties"
with the one now In force under the opera
4 tion of the plurality vote. Recognizing the
principle that where a power has not been
prohibited expressly or by implication, 1t
may be exercised, the Legislature has by
law assigned justices of the peace to certain
described districts within the several
counties, and In some instances fixed the
place of their residence. The Constitution
has not expressly authorized or prohibited
such legislation, and the same may be said
In reference to the creation by law of repre-
sentative districts. 1t may be observed that
In the consideration Of questions of this kind
great discretionary power is necessarily
lodged In every legislative body, and to q
much greater extent under the Constitution
of q State than under that of the United
States. Under the former, If the end be
legitimate and there is no clear and ascer-
tained prohibition in the way there can be
no reasonable objection to its exercise when
required for the welfare of the people,
This question, like the first one, can be
finally determined only by the action Of the
General Assembly which is the court of last
resort for the disposal of this issue, as the
direct representatives Of the people. II
members should be elected to either branch
of the Legislature by the citizens of districts
created by law within one or more counties,
each house must "judge of the elections,
returns and qualifications Of Its own men,
bers."
The Supreme Court of the United States
has laid down a rule nf constitutional inter-
probation which is not inapplicable to the
present case.