Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1902-01-23
COCHRAN DECLARED
TO Be THE CITY JUDGE
His Contest of Churchman'S Ap-
pointment Sustained by the
Supreme Court.
JUDGE SPRUANGE DID NOT CONCUR
ChancellorNicholSon and Judge
Grub Held That the Office
is Not Subject to Con-
firm alton by the
State Senate.

Special Cores ondcnce Of Gazette and Journal.
Dover, Jan. %. Edwin r. Cochran,
Jr., is still judge Of the Municipal
Court of the city of Wilmington, and
was illegally ousied by the appoint.
ment of Philip q. Churchman to that
position. Therefore, Mr.. Cochran will
resume the functions of the ollce.
This is the result OF the decision
rendered this morning by the Supreme
Court vi the State, Chancellor Nichol-
son and judges Grubb and Spruauee
sitting. TheChancellor and JudgeGrubb
united in the decision and lead opinions
sustaining it. Judge Spruance dis
sente1 aud gave his reasons 10 formal
opinion.
Edwin r. Co hiram, Jr., was appointed
Judge of the Municipal Court October
22d, 1900, by Gov Tunnel. The State
Senate at the ensuing session OF the
Legislature failing to confirm HE ap
pointment, Gov. HUM appointed Philip
q. Churchman to the office, March 9th,
1901. Judge Cochran resisted the
change and was ousted by Judge
Churchman. Judge Cochran appealed
to the Superior Court OF New Castle
county, filing an information in the
nature of writ OF quo warranto, but
Judgment was rendered in favor Of
.Jadge Churchman. Thsreupon counsel
for Judge Cochran took an appeal to
the Supreme Court,) the contention
being that tue office in question was
not subject to confirmation by the State
Senate, and that Cochran's appoint.
ment should hold good for the full
term.
Chancellor Nicholson announced the
decision of the Supreme Court In a
full and comprehensive opinion.
The Chancellor's conclusion was as
folloWs
I'm view of the authorities we have
already cited in our own State, tie only
rational conclusion to be drawn as to
tine intent of the Constitutional Con.
vention. in an omission that seems IN
explicable in any ether view, il that it
was the deliberate intent to leave the
Municipal Court for the city of Will
mington Just as il was under the statute
creating it, without in any way amend
ing or repeating the statutory provision
of the organic act of the city which
created the court and provided for the
appointment of the City Judge. In
this way it would remain, subject to
the power OF the General Assembly
either TO alter or abolish, at it's dis
erection, by amending or repeating the
statutory provision upon which it's
existence depended, so long as such
power is not exercised.
'Accordingly, ii is considered by this
court that the appointment OF the
plaintiff to be City Judge of the Mu-
nicipal Court for the city of Will.
mington was a valid appuintment with
out confirmation by the Senate and 1t
is therefore, now considered and ad-
judged that the aforesaid judgment on
demurrer Of the said Superior Court
be reversed with costs.
Judge Grubb Concurred With Chan
csllor Nicholson also in full and
comprehensive opinion. After review
ing the circumstances of the cage aud
the law and authorities bearing unon
the question, he SAID;
Having carefully examined and com
pared the respective provisions Of the
Constitution relating to the contirma.
tion of such officers as may be appointed
by the governor, and having mRturely
considered said provisions n the light
OF the authoritatively established prin
oiples and rules of Interpretation and
construction, | fail to discover any
constitutional provision, or plain and
reasonable implication thereof. whioh
warrants this court in holding thai
said section 8, article 3, or any other
provision of the Constitution requires
that the Senate shall confirm or con
sent to any appointment of said City
Judge of Wilmington which the governor
may be authorized to make.
~ therefore consider that the pro-
visions of the Constitution, properly
interpreted and construed, warrant the
conclusion that such confirmation Of
said City Judge is not within tbs
meaning and contemplation OF that
instrument, and that, consequently, the
judgment of the court below should hs
reversed. -
In hist dissenting opinion Judge
Spruance said:
~ am of rhe opinion that the ap
pointment by the governor of Edwin r
Cochran, Jr., to the Office of iudgein
the said Municipal Court, not having
been confirmed by the Senate, expired
at the end of the session of the SENATE
next thereafter, and that the iudgmen
of the court below should be affirmed. ;