Evening journal., 1901-01-25
Attorney. Generals Opinion
on Confirmation
REQUESTED By THE GOVERNOR
Opinion Covers The Action Of ihe Sen
ate in Refusing 10 Confirm ip-
pOintment OF Cochran
stan Correspondence Evening Journal

Stan Correspondence Evening Journal
Dover, Jan. 25.-Attorney- General
Herbert ii. Ward. acting upon the
request CT Governor Hum, has sent
TO him an exhaustive opinion in which
he holds that the appointment by the
governor of judge for tho Municipal
Court is made by and with the consent
OF the Senate. and that The appoint
ment must d. confirmed by the Senate
The opinion is In relation to the re-
cent action OF the State Senate in re-
fusing to confirm the appointment Of
Edwin r. Cochran, Jr., as Municipal
Court judge of Wilmington, and is as
follows:
January % 1901
To His Excclcncy. John Hunn Gov
ernor OF Delaware:
Ny Dear SIR You have submitted to
me. I'm my capacity ns attorney general.
the question of whether the appointment
OF Edwin X. Cochran. as Judge OF the
Municipal Court of the city OF Whining
ton must Dee confirmed hy the Senate.
In my Judgment, such confirmation hy
the Senate is necessary. and for the fol-
lowing reasons.
The contention that the appointment
of a judge OF the Municipal Court need
not necessarily he confirmed by the Sem
ate. IN accordance with the State Consti-
tuition OF 1897 depends upon the assump-
ton that said court IS clearly a municipal
agency and The judge thereof purely %
municipal agent
That corporation court may be con-
sttutionally established for the city OK
Wilmington. over which some corporation
agent or representative may preside is
clearly shown hy the case of Gray VS.. the
state of Delaware. Harr 7G. etc. Tn
that case WITS considered the stntus OF the
mayors court Of the Guy of Wilmington.
and 20 was there held that the fact that
the mayor was chosen 10y the corporation
electors and held the court only as an in-
cident OF his mayorality. was not ncon-
sistent with the constitutionality of the
court as so constituted
In the State Of Delaware VS.. the VIII
mington City Council. Harr 2g4. etc.
it was held that the city treasurer for fhe
city Of Wilmington was not n "ciyn otli-
ccr' in the State of Delaware. SO as 10
prevent clergyman from holding such
Office. This case held that such city
treasurer was purely am officer OF the
corporation, and not an officer of the
State Of Delaware.
I'm both of these cases. however. the
Office in question was one created as n
corporation Office and filed by persons SEE
lected 10y the corporate electors. Neither
OF these officers was appointed 10y the
governor. In neither of these cases arose
any question like that which has now
arisen in the case of the appointment OF
Mr. Cochran 10y Governor Tunnel. There
was, in these early cases. no provision of
this constitution like those now under
discussion.
The Municipal Court was established
by provisions in the charter of the city Of
Wilmington Of 1883. by the following
words:
From and after the FIRST day Of June
\. d.. 1883. there shall be and is hereby
established within the said city court
of record and Of law. which shall De
known by the name, style and title OF
'Ihe Municipal Court for the City of
Wilmington, ana it shall be the duty of
the governor before the first day of June.
aforesaid, TO appoint and commission q
city judge. who shall have power and au-
thority To hold and keep said court of
record" u
by the act 10y which this court was es-
tablished. and 10y supplements thereto, II
is provided.
D That the said judge shall hold bis
Office for the term Of twelve years unless
sooner removed by the General Assem-
bly,
'2l That he shall take the oath Of Office
prescribed 10y Article 8 og the Constitution
OF the state
This Article OF tho late Constitution
reads as follows:
Members of the General Assembly
and all officers. executive and judicial.
shall he bound by oath or affirmation 20
support the Constitution OF this state. and
10 perform the duties OF their respective
offices with iidelity.'
90 IN case of the sickness. absence. in
tcrest in the cause of proceeding. or other
liability Of such judge. the associate
judge Of the Superior Court resident il
New Castle county. may either perform
the duties Of said city Judge. or designate
in writing some suitable person to dis
charge such duties whose acts shall be
of the same force and effect as if per-
formed by the said city judge.
tD The said Municipal Court was
given sole and exclusive jurisdiction 70
inquire Of, hear, try and finally determine
ell those criminal matters and offense7
enumerated in the 18th section Of the sth
article Of the late Constitution Of the state
when committed within said city. and T.
punish all persons convicted OF said Of
fcnses, or any OF them, agrecably 70 thc
laws Of the state.
t5l lhe judge OF the Municipal Court
was given ail the powers and jurisdiction
Of Justice of the peace ia criminal case
for New Castle county.
l6l Il was made the duty OF every JUS