The daily gazette., 1883-02-06

always been and were still TO be under these
provisions, as soon as the Constitution went
into effect, chosen In equal numbers In each
county, can we suppose that the framers OF
the instrument could have meant or in
tended by the language employed, such as
"there shall be seven Representatives chosen
In each county until greater number"
| Tin each county of course is necessarily
understood) ''shall by the General Assem-
bly, be judged necessary, and then, two
thirds of each branch of the Legislature
concurring, they may by law make pro.
vision for Increasing their number'-where ?
Why ''in each county" of course Is again
necessarily implied and understood
they have intended, repeat, anything else
than this? This much at least, is the clear
and manifest meaning of the terms en-
ployed, and the structure of the sentence
itself requires us to give this meaning and
construction TO IL. And under this obvious
meaning and import of it all readily admit
/ without dissenting opinion that 1t Is COM
petent for the General Assembly to increase
| the number in each of the counties equally
fn the mode prescribed In these pro-
/ visions. But some contend that 1t
also means more and that under
these provisions, which are sub
| stantially the same in their meaning and
| intention, the number of Senators and Rep
mode unequally as well as equally in each
| of the counties. If thatwas the in ntention of
the trainers Of the Constitution and Of these
particular provisions In 1t, think 1t Is much
| 10 be regretted that they did not employ
few more words in penning them and say SO
In express and unequivocal terms. But
there is a rule OF construction In such cases
which should not be lost sight of on this oc-
| casion, and that is when any portion of an
instrument is susceptible of two meanings
or constructions, one certain and the other
uncertain, the former is to be adopted and
the latter rejected
But after all that have said my opinion
on the first question propounded is based
mainly on the impression which / have
long entertained that at least majority OF
the trainers of the Constitution could not
have contemplated or intended that the
equal representation of each of the counties
In the Legislature of the State should be
changed or abolished in the method pre-
scribed In the provisions of the Constitution
which / have been particularly considering
and which have already set forth at length
In this communication.
The question presented In the second reso-
luton: Whether it is competent for the Leg
islature to provide by law for the election
OF members of either or both branches of it
In any or every county from districts estab-
lished by law therein, in lieu of the election
of them by general ticket throughout the
countyg This question seems to be met and
answered by the following provisions con-
tanned In the second article of the Constitu-
ton:
"Section 2. The Representatives shall be
chosen for two years by the citizens residing
in the several counties"
"Section 8. The Senators shall be chosen
for four years by the citizens residing In the
I several counties"
l think these words import and require
that they shall be elected by general ticket
throughout the several counties, and pre-
| clude their election by districts of less ex-
tent In them. / have thus submitted to you
my legal opinion merely upon the questions
propounded to me, with my reasons for it,
and / neither expect nor desire that any
further weight or consideration should be
given to it on your part than the reasons
assigned for 1t may seem to properly merit
in your Judgment.
Very respectfully your obedient servant,
JOHN W. Houston.
DOVER, January 81, 1888.
JUDGE WALES OPINION.
The opinion of Judge Wales is as follows:
| To the Honorable The Senate aud House Of
Representatives. Of The State Of Delaware.
III tOulpllduCc Win TcQuebb GOuOhiueu
In the joint resolution of the General As
sembly, adopted at Dover, on the 21st day
of January, 1888, l respectfully submit the
| following opinion;
The questions presented by the resolution
/ may be stated as follows:
First-Can the General Assembly by a
1 concurrent vote of two-thirds of each branch
| thereof, increase the number of Senators and
Representatives from one county of the
/ State, without making exactly the same
numerical increase from each of the other
l counties .
Second-Can the practice of electing
members Of the Legislature by general
ticket in each county be changed by law, SO
as to provide for their election for separate
districts In any or every county An answer
Il to either of the above questions depends upon
| the proper construction and meaning OF
sections and of article 2 of the Constitu
ton of Delaware. Such portions of the sec.
tions as affect the present inquiry are in
these words
The representatives shall be chosen for two
years by the citizens residing in the several
There shall be seven representatives chosen in
| each county until n greater number of repre-
| sentatives shall by the General Assembly be
deemed necessary; and then, tWot thirds oi
| each branch Of the legislature coneurring, they
may by law make provision for increasing then
chosen for four years by the citizens residing
in the several counties. There shall
be three Senators chosen In each county. When
| a greater number of senator's shall by the
| General Assembly be judged necessary, two
| thirds of each branch concurring, they may by
law make provision for increasing their mum
Der but the number of senators shall never be
greater than one-half nor less than one-thlrd o
the number Of representatives.
First-By applying the primary rules OF
construction to these sections and taking
the literal sense of the words used In them,
they might possibly admit Of two meanings
First, that any increase of the number Of
Senators and Representatives must be made
on the present basis of numerical quality
from each county, and secondly that such
increase can be made irrespective of county
lines and according to population.
When, however, the whole of article II Il
examined under the broad and bright light
of rational and liberal Interpretation, with
view to discover its true meaning not only
from its scope, objects and design, thert
will remain no doubt as to the extent of the
power conferred on the Legislature. Undei
this Interpretation there are only two restric
tions placed on the exercise of the power
first, the requirement of concurrent o.
two-thirds, and--second, that the number
of senators shall never be more than one
half nor less than one-third of the number
7 Representatives. Within these limits the
power Of the Legislature is supreme, subjee
only to its own Judgment Of what may b.
needful or proper.
All legislative bodies must be entrustet
: with more or less of discretionary power
being responsible for its misuse to their con
: stituents. Our predecessors In the govern