Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1895-06-06


hope, sufficient reason for its length.
have felt enough interest In the question
TO make it the subject 0f careful inves-
tigation in order to see what light his.
tory might throw on the matter, either
by reason of the utterances Of the
trainers Of our Constitution, or by the
internal evidence of our previous Con-
situations which might go to show the
meaning of these sections of our present
Constitution whose meaning Is in doubt
Before proceeding further, however,
1t may be as well to bring the questions
which we are about to consider clearly
before the reader and TO confine the in
vestigation within as narrow a compass
as the subject will elbow. | think we
can all agree that the validity or in
validity of Mr.. du Points election de.
ponds on the question whether or not
Acting Governor Watson was legally
entitled to vote in the joint legislative
session when 1t is claimed that Mr.
du Pont was electedG If that question
is answered in the affirmative, then Mr.
du Pont failed of an election because he
did not receive majority of the votes
cast If the question is answered in the
negative, then Mr.. du Pont did receive
a majority of the legal votes cast and is
entitled to scat in the Senate.
With this simple issue before us, let
us 60 back and take look at all of our
Constitutions, remembering always that
we are trying to interpret an instrument
which is the most solemn act of a sover-
eign people. Delaware has had three
Constitutions. The first one was adopted
in 1776,two months after the colonies had
declared their independence and almost
two years before the confederation was
founded. We were then still an indie
pendent colony, and our Constitution of
that date, though showing internal evil
dence OF somewhat hasty formation,
contains provisions from which much Of
our present Constitution has been
evolved, including section which
goes far to elucidate the question
in issue. In that Constitution the
legislative power was vested in two
houses. "The Council" corresponding
to the Senate Of to-day, and the blouse
Of Assembly," which is our House of
Repre-: entatives at the present time.
Each house then contained the same
number of members as IL does to-day,
namely twenty-one members in the
House of Assembly (seven from each
county, and nine members in the Coun-
Gil (three from each county,. The chief
difference between those houses then
and now was in the tenure of their of
fees. Elections were annual and mem
bers of the House of Assembly were
chosen annually. Members of the Goun.
Gil Tour Senate) were chosen for three
years, one third of that body retiring
annually. Instead OF Governor we
then had President who performed
many OF his chief functions with the
advice and consent of the Privy Coun-
Gil" This Privy Council consisted of
four members, two being chosen by each
house.
Article of the Constitution of 1776
says: "a president, or chief magistrate
shall be chosen by joint ballot OF both
houses, to be taken In the House of
Assembly, and the box examined by
the Speakers of each house in the pres
ence of the other members, and in case
the numbers for the two highest in
votes should be equal, then the Speaker
of the Council shall have an additional
casting voice and copy thereof on
parchment shall he delivered
to the person so chosen president, who
shall continue in that office three years
and until the sitting of the next General
Assembly and no longer, nor be eligible
until the expiration of three years after
he shall have been out of that office.
Aud on his death, inability, OF
absence from the State, the Speaker of
the Legislative Council for the time
being shall be vice president, and in
case of his death, inability or absence
from the State, the Speaker of the
House of Assembly shall haze The potrerS
of president until new nomination Is
made by the General Assembly,"
Article of the same Constitution
says: "a Privy Council consisting of
four members shall be chosen by ballot,
two by the Legislative Council and two
by the House of Assembly. n
And u member of the Legislative Council
or Of the House of Assembly being
chosen of the Privy Council and accept
ing thereof shall thereby lose his seat"
Article s specifically provides that as
soon as o member Of the General AS
sembly became member of the Privy
Council he thereby lost his seat. Since
the trainers of that Constitution had
also provided that the Speaker of the
Council should succeed the Governor, in
case the latter's office became vacant,
why did they nots also that his seat as
member of "The Council" would thereby
be vacatedg The answer seems to me
TO be that they simply wanted him tc
fill the Governors office temporarily
and that the scope of his authority was
embraced in that clause defining the
powers of tue Speaker of the House OF
Assembly, which said that he "shall
have the powers OF a President until d
now nomination is made by the General
Assembly" In the absence of any
further express definition of theil
powers, theimplication seems plain thai
the speakers OF the two houses temper
arily filled the office of Governor by
virtue of their Offices and that they ne
more lost their original offices by reason
thereof than would the vice.presidenl
of a Wilmington corporation who
under similar conditions, acted in the
presidents place during the latter's six
months sojourn abroad
Article 10 above stated further cor
roborates this view because it says tina
the Great Seal shall be kept by tn,
President "or in his absence by th,
Vice-president to be used BY t6em q
occasion may require" 1t might b.
urged in reply that this section woulc
not apply to our present Constitution
because the absence of the Governor i
no longer cause to make tn,
Speaker of the Senate assume the dutie
of the office. That is true so far as /
goes. The Constitution of l776 sal,
that the Speaker of the Council shall
ofIiciate on the Governors death, in
biity or absence from the State" Will
under our present Constitution IL say