Delaware gazette and state journal., 1896-01-16


Delaware Of 1776 provides:
"The common law OF England, as
we'll as 80 much OF the statute law as
has heretofore been adopted in the
in this State, shall remain in
force, until they shall be altered by II
future law Of tho Legislature; such
parts only excepted as are repugnant to
the rights and privileges contained in
the Constitution, ana the declaration
of rights, &e., agreed to by this con-
vention. -
The affirmation thus made of the
force of the common law in Delaware,
of whose jurisprudence it is the basis.
is recognized by clauses in the sue
ceeding Constitutions confirming the
common law jurisdiction of the courts.
What is an ofiice?
"That function by virtue whereof
man hath some employment in the
affairs of another, as of the king, or of
another person. . Cowel!, quoted by
Jacob, Law Dict
''It is said that the word officium
principally implies duty, and in the
next place the charge of such duty. +"
Bacon's Abridgemont, tit, Office, A.
"A position or station in which a
person is employed to perform certain
duties or by virtue of which he be-
comes charged with the performance Of
certain duties, public or private.
Burrill, Law Dict. Office.
"An employment on behalf of the
government in any station or public
trust, not merely transient, occa-
isonal or incidental +" 20 Johns. r. 493
There is, therefore, IN the mere idea
of office nothing of exclusiveness,
nothing that implies that the incum-
bent is confined to the discharge of
single public duty. An office is merely
function, and at common law the in
compatibility of offices means nothing
but the incompatibility of functions.
Various examples of in
compatibility may be given.
In Dyer's case, Dyer's Reports, ls8
b, it was held that where justice for
the common pleas was appointed a
ljustice of the Kings Bench, the
Offices were incompatible, because the
former position was subordinate to the
latter
In King vs.. Gayer, 1 Burrows, 245,
it was held that the offices OF Justice
of the peace and overseer of the poor
were Incompatible, because the ac-
counts of the latter were subject to the
control of the former.
Yet, "by custom, the same person
may be judge, and an officer to exc
cute process, for he acts in different
respects as, where bailiffs, or mayor
and bailiffs are judges in tho court of
a borough, they may also ba officers to
execute the process Of the same court. =
The common law doctrine
on this subject has been fully recog-
nized in the United States.
In Bryan vs. Cattel, 10 Iowa, 53S
t1s64l, the court says that the incom-
patibility must be such as arises from
the nature of the duties, in view Of the
relation Of the two offices to eachother. !"
After quoting extensively from the
case of People VS.. Green, 58 N. ",
295, and other cases showing to what
extent the combination of Offices is
sometimes carried in the United States,
the counsel reach the third, and most
important of their propositions in OPP
position to Mr.. du Points claim, viz
Particular provisions of the Constitu-
tion of Delaware; claiming that the
Constitution of Delaware not only does
not forbid but it expressly authorizes
the Speaker of the Senate, while hold
ing that office. to exercise the office of
Governor They say;
In entering upon the discussion OF
this subject, it is necessary at the out
set to say that large part of the ar
gument of counsel for the claimant is
devoted to answering hypotheses which
have appeared in the columns of the
press. But these hypotheses, however
ingenius they may have been, rep
resented merely the views Of theii
authors. and we do not feel called upor
to consider the question of their sound
ness or unsoundness.
Thus, counsel devote 30 pages o
their brief (pp. 34.G31 to demonstra
tion of the fact that the Speaker O
the Senate, in case of vacancy in tbs
| office of Governor, becomes Governor
of the State. The matter counsel pre-
sent on this head attests their industry
and may interest the curious, but j
supports proposition which we do no
contest.
Under the Constitution Of Delaware
their is but one Governor in the full
sense of the term, and that is the Gov
ernor elected by the people. Article 3
section 8 provides that . the Governo
shall be chosen by the citizens of tn,
State. .. BY section of the sam,
article, the Governor holds his Office
for term of four years, and is no
eligible second time to the Office. E.
section of the same article, he is re
quired TO be at least 30 years of age. "
These provisions are all inapplicablI
to Speaker of the Senate who exer
cisea the Office of Governor. A persol
only q years Of age may be Senator
A Senator may, as occurred in thu
case of Gov. Salisbury, in 1866, b,
elected Governor, while exercising, al
Speaker of the Senate, the office o
Governor. The Speaker Of the Senat
does not exercise the Office Of Cover
nor for a particular term, but onl.
until Governor elected by the peo
/ pie shall be duly qualified. :"
Nevertheless, whom the Speaker o
the Senate of Delaware, in case of
vacancy in tho office of Governor, per
forms the duties Of Governor, he exer
cises for the time being the powers be
longing to the office, and is entitled t,
its emoluments He exercises the ofiic
ad interim, for the purpose of filling
vacancy. For this purpose he holds tn
| Office; and he continues to hold 1t til
an elective Governor is duly qualified
even though his Office as Speaker or a
Senator may in the meantime have ex
pired. But the exercise of the offic
of Governor does not, as we shall show
affect his office as Senator.
Counsel for the claimant, however
contend that there are two provision
of the Constitution Of Delaware, whicl
in express terms make the offices @
Senator and Governor in every cas-
incompatible. Ii this were SO, it nigh
fairly be inferred that the trainers q
the Constitution did not consider th