Smyrna times., 1939-11-30
VALIDITY NEW
HIGHWAY ACT
Argument Heard By Superior
Court at Dover i'm Ses-
sion on Monday
OPINION is WITHHELD

The hearing of arguments on the
constitutionality of the law to re-
organize the State Highway De-
partment was completed late Mon
day afternoon in the quo warranto
proceedings before Judges Frank
L. Speakman and Richard S. Rod
ney in Superior Court. The law
being questioned names Donald P.
Ross, Charles D. Abbott, and Ralph
w. Emerson as additional members
of the State Highway Commission
hereby giving Republicans control.
S. Samuel Arsht, who, with for
mer-Federal Judge Hugh M. Nor
ris represents the Democrats, was
given permission to file an addi-
tional brief next Monday covering
his contention, presented orally
Monday afternoon, that the Legis-
lature exceeded its constitutional
powers in naming the new MEM
bers of the commission. Former
Atty.-Gen. P. Warren Green who,
with Rep. Henry M. Candy, repre-
sents the defendants, may later file
an answer to Mr.. Arsht's brief. A
previous act passed by the Legis-
lature over the veto of Gov. Rich
ard G. McMullen was declared un-
constitutional by the Superior
Court on the ground of defective
title. Later the one now under
consideration was passed over the
Governors veto also. The two op-
posing commissions have, by mu-
tual agreement, approved expendi-
lures and other matters essential
to the maintenance of roads. Mr..
Arsht contended the bill is uncon-
stitutional because it failed to re
ceive a constitutional majority;
that the title is defective, and it IS
an encroachment On the powers
vested in the governor. He stated
the bill fails within the scope OF
the constitutional provision forbid
ding the enactment of laws relat-
ing to the laying out, opening, al
teration or maintenance Of any
road or highway which forms a
continuous road through at least a
portion of the three counties Of the
state, unless passed by vote OF
two-thirds of all the members
elected to each house Of the Gener-
al Assembly.
p. w. Green, Esq, Argument
p. Warren Green, presented the
oral arguments for the defendants.
He contended that under the En-
rolled Act Doctrine established
here in 1913 tine method, manner,
and vote received on the bill can
not be questioned by the relator or
the journals showing such facts De
introduced in evidence or consider
ed by the court, but the court can
only consider the enrolled act as II
has been deposited with the Secre-
tarv of State" He contended that
the matter before the court was
purely question Of the constltu-
tionality of a change in personnel
in the department and that such a
change does not require more than
a majority vote. This law has
nothing to do with the laying out
of roads which would require a
two-thirds vote or the issuing OF
bonds which would require a three
fourths vote, he said. He declared
that although the creation OF the
state highway department had re-
auired a three-fourths vote because
the act creating it contained pro-
vision permitting the members to
issue bonds, it had been amended
several times since that time by
majority votes. These amendments
included change in personnel by re-
placing the Governor by the Secre-
tary of State and later by return
CONTINUED on PAGE Five)