The sun., 1901-03-28

WINS CASE
Superior Court Says he is the
Municipal Court Judge.
JUDGE B0YCE GIVES OPINION
Cochran Will Take Judgment of
Court az Final-Decision Was
Unanimous Opinion
of the Court.
JUDGE B0YCE GIVES OPINION

Philip q. Churchman will continue to
sit as judge of the Municipal Court. The
Superior Court yesterday decided in his
favor and against Elwil r. Cochran, in
rhe quo warranto proceedings brought
| to decide the matter.
Judge Churchlnan was represented by
IL. IL. Ward and Walter IL. Hayes.
Il. II. Cochran was represented by Ro-
bert q. Harman and j. Harvey White
man.
| Edwin X. Cochran has accepted the
opinion of the court as final Judgment
in the matter. Judge Boyce read the
decision, which was the unanimous
opinion of the court and is as follows:
The information and plea filed which
appeared in the statement of the case
disclose fully the contentious between
the parties to this proceeding, and it is
unnecessary to set them forth in this
opinion. Issue has been framed upon
il demurrer to the plea, and the main
question presented for our consideration
and determination is the principal aver
ment contained in the demurrer, in
words following: '"rhat the consent of
il majority of all the members elected
10 the Senate of the State of Delaware
to the said appointmnts of the sand
Edwin Il. Cochran, Jr., to be the city
Judge of the Municipal Court for the
city Of Wilmington is not required by
law"
We may he permitgted to say that we
have given the question presented calm
and deliberate consideration, and we
have reached, >what seems to us, the
only Just and impartial conclusion war
ranted under the provisions of the Con-
,titution and statute applicable to the
case. In noticing certain cases pre-
,ented in the argument, we may say
that the issue before us is not one in
volving the constitutionality Of the act
establishing the said Municipal Court,
as was the main question before the
court in the case of Gray VS.. State. Nor
is it simply whether the judge of said
Municipal Court is strictly corporate
ind1d in the case Of the States. mean
wilmington City Council. Norasl was
whether. the incumbent of the Office OIL
lthe said Municipal Court is, whne
holding said office, disqualified from
holding n certain other office under the
United States or in this State, by rea-
| .on of the provision in the State Con-
stitution ,.enying any person the privil-
.ye of holding more than one OF certain
designated offices.
| Differing in its nature and its char-
.cter from any of the cases above cited,
the question here is whether the ap-
pointment of the plaintiff to be judge
Of the said Municipal Court made by
the then governor required the consent
of n majority of all the members elected
to the Senate before the end Of this ses-
sion thereof next succeeding MS ap-
Inointment. under any provision contained
N the constitution of 1897, considered
IN connection with the statute establish
,nc said Municipal Court. None of these
lenses is particularly helpful in determin-
ling this question. because neither OF
them presents or deals with the precise
question raised by the pleadings in this
ease. Our investigation is almost. if not
,ltogetber. confined to the constitution
itself. considered in connection with the
net establishing the said municipal Court
and the relation each bears to the ques-
tion in hand.
; II NAV be said that whatever may
have been the character, Jurisdlctioh
md powers, either Of the corporation oi
the city Of Wilmington. or of the city
court at any time prior to the hrst da!
Of June, 1883, when, under the act of the
General Assembly, passed at Dover
Apri of the same year, the present NUM-
| ,.ipal Court. they are not necessary tt
| he considered in disposing of this case
The fact is that by the said act of thu
: said Municipal Court, was established
, with a distinct character of its owl
J possessing the powers and jurisdiction
! conferred upon it by the act; and what
ayer powers and duties former cit.
: courts established for the corporatioi
, If the city of Wilmington, possessed ant
$ exercised, we must look to the said ac
If 1883 and any amendment thereto fo
Y The grant of power and jurisdiction
7 (which was conferred upon and now ex
n ,rcised by the present Municipal Court
o And we need not, and should not, loo
further than here stated, for, whethe
;. the corporation of the city of Whining
4 ton once enjoyed and exercised the frar
e chise of holding court, or whether tina
k franchise was subsequently enlarged,
p. no wise aids. or assists in this case; fc
p If is we'll settled law that municip,
IS corporations and corporate courts al
l. subject to legislative control, except $
ie far as the Legislature may be inhabite
" by the constitution. As we said by tt
g Hate Court of Errors and Appeals. in IL
r .ase of Coyle VS.. McIntire, Hous
r, 741, the city of Wilmington being
X municipal corporation, all its power
md. we may add, as well, the juri
liction and powers of the Munipic
Court under its charter, are subordina
% to the powers of the Legislature. Al
ID ID the Legislature, having the power
~ y repeal the corporate power existen
~ fo nlfnI. MN