The daily gazette., 1883-01-30
NEW CASTLES DANGER.
CHANCELLOR SAuLSBuRYiS
ADVERSE OPINION.
NO UNEQUAL INCREASE LEGAL.
He Says II the Number Of Representative
and Senators From New Castle is to bs
Increased the same Increase Must so to
the Other Counties.
Especial correspondence of the Gazette.

opinion, which, with that Of the mem
bers of the judiciary was solicited by a
joint resolution passed q week before, asking
for their views as to whether the Legislature
could by direct enactment increase and ap-
portion the members of the General Assem-
bly,. The opinion is decidedly adverse to
the interests of New Castle county, and was
| read In the Senate In the afternoon, as
| follows:
To the General assembly: The Secretary
of State has transmitted to me a copy of
certain joint resolutions adopted by you on
the 23d day of the present month, which are
as follows:
BE IL RESOLVED By the Senate and House Of
| Representatives. Ia General Assembly Met,
That the Chancellor and Judges be, and are
| hereby requested to communicate to the
General Assembly their opinion In writing
| upon the following questions, that Is to say:
First-Isit within the constitutional power
| of the General Assembly, by concurrent
vote of two-thirds of the members of each
/ branch thereof, to provide for the increase
| of the members of the Senate and House of
Representatives in the General Assembly,
and to apportion the members thereof un-
equally among the several counties of the
| Statel
Seconds It competent for the General
| Assembly to provide by law for the election
of members Of either branch or both
| branches of the General Assembly, from any
or every county, from districts created by
law Within such county, in lieu of the cleo
| tion thereof upon general ticket through
out the county,
And be Il further resolUed, as aforesaid,
| That a duly authenticated copy of these
\ resolutions shall be forthwith transmitted
| to the Chancellor and Chief Justice and
| each Of the Associate Judges, by the Secre-
tary Of State.
A correct answer to the questions sub
mitted Involves a proper construction of the
| first and third pamphlets of the Second Sec
tion of Article II Of the Constitution and
| the first and third paragraphs of the Third
/ Section of said Article.
The second section declares that the rep
| resentatives shall be chosen for two years
| by the citizens residing in the several coun-
| ties, and that there shall be seven Represen-
/ tatiVes chosen In each county until a greater
/ number of representatives shall, by the
| General Assembly, be judged necessary, and
| then, two-thirds of each branch of the Leg
islature concurring, they may by law make
| provision for increasing their number.
The third section declares that the sena-
| tors shall be chosen for four years by the
citizens residing in the several counties and
| that there shall be three senators chosen In
each county. When q greater number of
senators shall by the General Assembly be
| judged necessary, two-thr6s of each branch
concurring, they may by law make provision
| for increasing their number, but the num-
| ber of senators shall never be CRATER than
| one-half nor less than one-thlrd of the num-
/ Der of representatives.
If the first question submitted involves
solely the power of the General Assembly,
/ by concurrent vote of two thirds of each
4 20, alya afata fNtf fota
| for increasing the number OF Senators and
Representatives in the General Assembly, to
be chosen by the citizens residing in the
i several counties, when a greater number OF
| Senators and Representatives shall by the
| General Assembly be judged necessary, /
/ should answer in the affirmative, because
such authority Is expressly conferred upon
the General Assembly by the Constitution.
| But that question involves more, namely :
| whether, supposing the number of Repre-
sentatiyes be increased, the General As
semhly have the Constitutional power to
apportion the number thus increased among
| the several counties of the States
In my opinion, the General Assembly have
not the power to make such apportionment
| The Constitution is the organic, funda-
mental and supreme law of the State. II
creates the Legislature. The Legislature
makes laws authorized by, conformable to,
or not inconsistent with the Constitution;
the Legislature cannot add, alter, or change
the Constitution or make provision by law
for adding to, altering or changing 1t, un-
less authorized so to do by the Constitution
aud in the manner prescribed by the Constt-
tuition. The only act the General Assembly
Is by the provisions of the second article
thereof, hereinbefore recited, authorized tc
do, Is to make provision by law for an In.
creased number of Representatives
and Senators to be chosen In each county
by the citizens residing therein, when :
greater number of representatives or sena.
tors shall by the General Assembly, be
judged necessary. The General Assembly
have the constitutional power to judge In
respect to the necessity for an increase IN
the number of senators and representatives
to be chosen In the several counties and tc
make by law provision for increasing the
number If they shall judge greater number
to be necessary, and this is the Limitation oi
their power In this respect. They have not
power to make provision by law for ehoos
ing senators and representatives in any
manner different from that prescribed in the
Constition, nor for their being chosen other
wise than by citizens residing In the several
counties
The apportionment of Senators and Rep.
resentatives In the General Assembly Ii
already made by the Constitution, and II
upon the basis of equality among the coun
ties, and the General Assembly has, Ia my
opinion, no constitutional power to make
provision by law for different apportion
ment otherwise than is prescribed In the
ninth article of the Constitution, providing
for amendments thereto. The true prinel
pie in respect to making by law provision tol
an increase of the number OF Senators ol
Representatives, as contemplated by thai
instrument, Is that they may do whatever Il
J necessary and proper for making provision
by law for such increase in number; bu
they cannot make provision by law fol
doing anything that is not necessary ant
proper for the making of the increase con
, templated by the Constitution.
Now, supposing In the Judgment OF ths
General Assembly, 1t Is necessary that tn
: number In the aggregate of the House o
Representatives should be increased SO as |
+. shall consist hereafter of IS members, thei
S constitutional power would be exhausted
, they should make provision by law that tn
number OF representatives chosen In eacl
5 county shall be 10. In like manner If i
their Judgment the number ofsenators shoul
be increased to "a their constitutional powc
would be exhausted If they should max
v provision by law that the number of semi
8 tors chosen In each county should be eight
J. the number of representatives and the nun
d Der of senators would be increased but the 81
o portionment of that number aud the prime
q pie upon which that apportiontment woul
Be made would not be different frol