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

bic for the wit of man TO frame a ton
stltution or rule OF action which
would not be open to the same trivial
objections Opposing counsel seem
to have fairly reveled in these trifling
incongrui.ies. and, like tho pharisee
of old, to have paid tithes OF mint,
anise and cummin, but to have neg.
lected the weightier matters of the law.
To whatever logical conclusion we
carry the contentious of opposing coun-
sci they lead to violations of express
provisions of the Constitution as we'll
as eubversion of the fundamental
rights underlying our republican form
of government. There is no express
provision of the Delaware Constitution
which suspends the Senatorial func-
tions of Speaker while he is exercis-
ing the office of Governor, consequently
opposing counsel are reduced 10 the ex-
tremity Of implying such suspension.
We have seen above that such an i'm
piication must be necessary" impli-
cation. The word Unnecessary, in it's
strictest sense, would mean sine qua
non, but in that sense it would be
meaningless in this case, because no
one will claim that our Constitution
does not express definite meaning
without the necessity of implying any
thing. On the other extreme, the word
"necessaryn can not be used as cloak
to import into such a solemn instru-
ment clause or meaning which the
people themselves did not SEQ proper to
place there in express words. As
Judge Cooley pertinently says, 1--WE
cannot test the validity of any State
statute by general spirit which is
supposed to pervade the State Consti-
tuition. but is not expressed in words, "
and a fortiori will the same test apply
with even greater force in the construc-
tion OF constitutional provisions.
The presumption Island it is a
strong presumption--that not single
word can be implied into State Con-
sttution which is not expressed in
words, unless the absence of such i'm
piled meaning would make the Consti-
tuition seem blind, contradictory, mean
ingless or, perhaps, absurd. Tho people
of Delaware have uniformly construed
their Constitution for century, with
out the necessity of requiring any such
violent implication to make il clearly
understood, and we contend that it is
only by adopting the contention of OPP
posing counsel that such dire results
as they predict would follow.
If We adopt the contention of oppos-
ing counsel that there is vacancy,
we are confronted with the curious
anomaly of an office without an off,
cer-a vacancy without any right to fill
it, although the Constitution expressly
commands the filling of such vacancy.
BY suspending Senator's functions
while he is exercising the office of
Governor, as opposing counsel contend,
it would, by mere implication, deprive
all of the people of one county of one
third of their fundamental and consti-
tutional right TO representation in the
Senate for the time being. Under the
contention of opposing counsel, we
would have to adopt the rather novel
presumption that an office is not created
to be exercised at all times but the
exercise of its functions is to be sus-
pended whenever policy or interest die
tate such construction.
Under our contention, We claim that
fair reading of our Constitution and
particularly of section IA of article 3,
will simply show that tho Speaker of
the Senate is designated by the Con-
stitution as the person who shall be a
temporary stop-gap TO prevent an inter-
regnum until the people can elect a
new Governor, condition of affairs
similar TO that which would have
existed in the Senate of the United
States under the law of 1882, if the
Speaker pro tempore of the Senate had
ever been called upon to act as presi-
dent.
Stripping section II of article 3 OF
all technical Interpretation, can any
fair-minded man doubt that there is
any other reasonable Interpretation OF
its meaning? II must be remembered
that under the Constitution of 1902,
elections were annual, and certainly
never more than one year could have
elapsed during which Speaker had
| to exercise the executive authority
| before the people would have an oppor-
! tunity TO elect new Governor. And
this is assuming that a newly elected
| Governor died soon after or before he
was inaugurated. But as under the
| Constitution of 1892, the Legislature
was seldom in session longer than one
month and often much less than Q
month, the chances are as eleven ol
more TO one that Speaker of the
| Senate woIld not succeed TO the execu
tive authority during the Legislative
session, but during the interim between
SESSIONS, and as result, and in the
precedents already mentioned such was
generally the fact such Speaker wout
only exercise the Office Of Governor
about two weeks during which the
Legislature was actively in session
| Then what becomes of the frightfu
spectacle which opposing counsel pic
ture as the result Of Speaker of tn,
! Delaware Senate exercising that Office
and that of Governor temporarily, al
the same time. And except that elec
tions were made biennial and senatoria
! terms lengthoned 10 four years there
! is no material difference in the clauses
involved in this question, between tht
| Constitutions Of 1892 and 1881, as oppos
| ing counsel admit
Opposing counsel, however, urge tha
the non exercise by a Speaker, of his
senatorial functions, while acting a.
| Governor, is an actual precedent golnl
to show construction Of the Constitu
tion, and as such precedent becomes
binding. We reply that when {
Speaker, who was exercising the Office
as Governor. but whose seat as Senator
was not vacated, refrains from per
forming his senatorial functions, ii il
his individual action, of his own vol
tion, dictated, perhaps, by reasons O
dignity, convenience, propriety or by
one of many other causes that nigh
be suggested. Even if the action o.
one individual could thus be able Il
bind future incumbent of the sant
office, it would not be precedent, be
cause the Senate of Delaware, neither
actually nor constructively, ever wa.
called upon to pass on the question,
and whatever action was taken by thu
Senate on May 9th, 1895, in Mr.. Wat
son's case, was a constructive affirma