Delaware gazette and state journal., 1896-02-13

perform his uutleH, ii Quo dulrtSheu
solely to the conscience OF such Sena-
tor and can be questioned only by his
constituents who elected him and dele
gated to him as trutsee the duties
which they could not perform collec-
lively under our form of government
And this is true whatever may be the
causes or motives OF such Senator in a
failure to perform the duties imposed
upon him.
Whether or not the functions of a
Senator of Delaware are suspended
while he exercises the office of Governor
depends soley on the fact whether or
not the Constitution OF Delaware con-
tains such prohibition, either in
'express' words, or by necessary i'm
plication. Before proceeding further
we will lay down the rules of construc-
tion, uniformly adopted by courts in
considering the provisions OF consti-
tuition, and we believe that these rules
OF construction will not be questioned.
The keystone OF our American poity
is that the people are sovereign. This
sovereignty, by our republican form Of
government, the people have delegated
to their agents as the form of govern.
ment best adapted to their spirit and
tempted to restrain and control by
written constitutions placing limita-
tionB on their powers. In our Ameri-
can States these powers are distributed
among three coordinate agencies,
which we cali the legislative, the exec
utive and judicial branches. Each of
these branches of government within
its own prescribed sphere, is the SOW
# tn In fa,+
ticular purpose for which it was estab-
lished, and the three agents together
represent the unit or general reservoir
Of sovereignty, which Is in the people
alone. Were we an independent State,
our Constitution would be the only
limitation on the power of these several
branches of government which they
were bound 10 obey, but we have
deemed it wise to form a Federal
Union, to which we have delegated
certain sovereign powers as paramount
to any which we reserved as an indie
pendent State. Therefore, these execu-
tive, Legislative and judicial agencies
which the State of Delaware has created
and constituted as it's instruments of
government, are paramount except in
so far as their powers are limited by
the Constitution of the United States
and the Constitution of Delaware.
On page 200 OF his Constitutional
Limitations, Judge Cooley presents the
same subject as follows. He says:
g In every sovereign State there resides
an absolute and uncontrolled power of
legislation. In Great Britain this COM
plete power rests in the Parliament; in
the American States it resides in the
people, themselves as an organized
body polite. But the people by Great.
ing the Constitution of the United
States have delegated this power as to
certain subjects and under certain re-
strictions, to the Congress OF the Union !;
and that portion they cannot resume
except as it may be done through
amendment Of the national Constitu-
tion. For the exercise of the legislas
tive power, subject to this limitation,
they create, by their State Consiitu-
tion, Legislative department upon
which they confer it; and granting it
in general terms, they must be under
stood to grant the whole Legislative
power which they possessed, excpet SO
lar as at the same time they saw fit to
impose restrictions. While, therefore,
the Parliament of Grent Britain pos
sesses completely the absolute and un-
controlled power of legislation, the leg
islative body of the American States
possesses the aamo power except, first,
as it may have been limited by the
| Constitution of the United States I;
and, second, as it may have been
| limited by the Constitution Of the
State. A legislative act cannot, there
fore, be declared void, unless its con
fiict with one of those two instruments
can be pointed out.
But in interpreting our Federal and
State Constitutions a radical differ
enee must be noticed. Our Federal
government is grant of delegated and
enumerated powers, and hence the
question To be asked in Interpretation,
| is: elias the power heen granted?''
On the other hand, State Constitu-
ton is one OF general power, limited
by express or implied prohibition, and
hence the question is: els the power
prohibited expressly or impliedly by
the State or Federal Constitution"
Judge Cooley, in his Principles of
Constitutional Law, page 157, draws
the distinction clearly. He says
"When a question Of Federal cnnsti-
tutional law ia involved, the purpose
of the Constitution, and the object to
be accomplished by any particular
grant of mower, are often most inn
portant guides in reaching the real in
tent, and the debates in the Constitu
tional convention, the discussions in the
Feueralist, and In the conventions of
| the States, are often referred to as
throwing important light on clauses in
| the Constitution which seem blind or
of ambiguous import. We may dis
cover from these what the general drift
of opinion was as to the division line
between Federal and State power on
many subjects, and we can sometimes
| judge from that whether particular
authority lies on one side of the line
or the other, But wa shall be mised
if we attempt in this manner to judge
OF the State Legislative power, when the
limitations of the Federal Constitution
are not in question. We cannot test the
validity of any State statute by gem
eral spirit which is supposed to per-
| wade the State Constitution, but is not
expressed in words. Presumptively,
when the people for the State, by their
Constitution, call into existence leg
islatiye department, and endow it with
the function of making laws, they CON
fer upon it the full and complete legis-
lative power--as full and complete as
the peonle, in the exercise of sover-
eighty, could themselves have welded
it, subject only TO such restrictions as
were by the same instrument imposed. u
Judge Cooley reinforces and empha-
sizes this language in his admirable
work on Constitutional Limitations,
page 205, where, in discussing the cir
eumstances under which a Legislative
enactment may be declared unconstitu.
tial, he says: 'Nor are the courts al
lihnrtY to daclara an act void because