Opinion
April 5, 1950.
Superior Court for New Castle County, No. 132, Civil Action, 1950.
Thomas Cooch for plaintiffs.
Abraham Hoffman for the Levy Court of New Castle County.
P. Warren Green for the additional defendants.
Suit for declaratory judgment to determine which of two groups of individuals now constitutes the Bureau of Registration for New Castle County (herein called the Bureau). Prior to 1947, this Bureau consisted of three persons appointed by the Governor. On April 4, 1947, an Act was approved, being Chapter 185, Vol. 46 Laws of Delaware, p. 491, which amended the former statute. It contains four sections. Section 1 changes the number of members from three to eleven. Section 2 reads as follows: "Section 2, Members; Organization; Salaries and Expenses; How Paid: — The members of the Department of Elections for New Castle County as constituted from time to time after April 15, 1947, shall constitute from and after the effective date of this Act the Bureau of Registration for New Castle County. The president of the Department of Elections shall be the president of the Bureau of Registration. Within 10 days after April 15, 1947, and bi-annually thereafter, the Bureau of Registration shall elect a secretary who need not be a member of the Bureau of Registration. The members of the Bureau of Registration shall receive no compensation for their services as such other than their compensation as members of the Department of Elections. The secretary of the Bureau of Registration shall receive a salary to be fixed by the Bureau not to exceed $3600.00 per annum, which salary shall be paid by the Levy Court of New Castle County in the same manner as County Officers are paid. The expenses of the Bureau shall be paid by the Levy Court of New Castle County on vouchers signed by the president and secretary of the Bureau."
Section 3 is of no importance here. Section 4 provided that the amendment should become effective on April 15, 1947.
Also on April 4, 1947, Chapter 182, Vol. 46 Laws of Delaware, p. 482 was approved. It likewise was to become effective on April 15, 1947. It amended a statute pertaining to the Board of Elections for New Castle County (herein called the Board), inter alia, by increasing the membership of that Board from nine to eleven and by providing a new method of appointing its members. Chapter 182 was later declared unconstitutional by the Supreme Court in the case of State ex rel. James v. Schorr, 6 Terry 18, 65 A.2d 810, solely because of the method it provided for the appointment of members. On re-argument, that Court held that the former nine-member Board was still legally in office.
Thereafter the Governor, acting on the assumption that Chapter 185 was also unenforceable, appointed three of the plaintiffs herein as members of the Bureau under the statute in existence prior to 1947. Nine of the additional defendants are the present members of the Board. The Court is herein asked to decide which group is legally in office.
CAREY, Judge.
It is clear that Section 1 of Chapter 185, increasing the membership of the Bureau from three to eleven, is necessarily ineffective because of the unconstitutionality of Chapter 182. There is no eleven-member Board of Elections for New Castle County. The question for decision is whether Section 2 of Chapter 185 is likewise ineffective. If not, the nine members of the present Board now constitute the Bureau; if so, the old law is now in effect and the three persons appointed thereunder constitute the Bureau.
It will be observed that the present difficulty would not exist were it not for the presence of Section 1 in Chapter 185. Without it, we would simply have an act making the members of one group in effect ex officio the members of the other. No problem of constitutionality or construction would then exist, for Section 2 is plain, unambiguous, self-explanatory and consistent with the act which it amends, save in the amended parts.
Section 1 is present, however, and plaintiffs contend that it plays an important part in indicating a legislative intent to make the effectiveness of Chapter 185 dependent upon the validity of Chapter 182. The Legislative history (as to dates) of the two acts is identical; they were approved by the Governor on the same day; they have the same effective dates. The Supreme Court in State v. Schorr, supra, referred to them as "companion acts". They both deal with the general subject of the conduct of elections. Sections 1 and 2 of Chapter 185 cannot be fully understood without reference to Chapter 182 because only in the latter is there any provision for the appointment of eleven persons to the Board. Plaintiffs' counsel, for these and other reasons, argues that the two acts are in pari materia, are completely interdependent, must in effect be treated as a single enactment, and must stand or fall together. The dominant purpose manifested, says he, was the creation of a new method of making appoints to the two bodies, the merger of membership being a purely secondary consideration. He argues that, when this method of appointment was held bad, the foundation of the whole structure crumbled and both acts became incapable of enforcement in their entirety.
I shall confine myself to a consideration of plaintiff's theory. Even if the two statutes be construed as a single enactment, it does not necessarily follow that all parts of them are unenforcible. A statute may be unconstitutional in part and constitutional in part. Where a statute has two objects, one of which is unconstitutional, the valid one does not fall if the two are separable. To determine separability, two questions must be answered affirmatively: (1) is the unobjectionable object, standing alone, capable of enforcement; (2) did the Legislature intend it to stand alone in case the other should fall. State ex rel. Green v. Isaacs, 6 W.W. Harr. 110, 171 A. 627; State ex rel Morford v. Emerson, Terry 328, 10 A.2d 515, Affirmed 1 Terry 496, 14 A.2d 378.
I avoid the word "dominant." Taken independently. Chapter 185, clearly has as its "dominant object" the merging of the personnel of the two groups.
Our present "single enactment" contains at least two principal objects: (1) creation of a new method of appointing an enlarged administrative body; and (2) combining the supervision of both registration and election matters in the same individuals. Either object can be enforced without reference to the other; the performance of two tasks by the same individuals is in no way affected by the manner of their appointment.
As to the second question, we find nothing in either chapter expressly making the enforcement of one object contingent upon the effectiveness of the other. In my opinion, nothing in the acts themselves demonstrates a legislative intent to make the two objects inseparable. Practical considerations have been suggested why the Legislature perhaps intended Section 2 to stand even if the other intended object fell.
I do not agree with the suggestion that the words "as constituted from time to time after April 15, 1947" necessarily show any such intent. The directly opposite inference is just as logical.
In the light of the diverse nature of the objects, it is reasonable to regard them as separable. Indeed, the familiar fundamental principles of statutory construction (which demand more than lip service) dictates such a holding. Every reasonable presumption favors the upholding of even a part of a statute. To find two acceptable interpretations, one supporting, the other defeating, a legislative design, is to settle the matter. Our sights should be aimed at validity, not invalidity.
Other contentions have been advanced by the respective parties. I have carefully considered them and shall simply say here that the arguments made confirm, rather than weaken, my opinion that Section 2 of Chapter 185, standing alone, is valid and enforcible. This ruling, in my opinion, defeats no clearly apparent legislative intent but, on the contrary, actually supports it to the extent possible, in so far as such intent is discoverable from the information properly before the Court.
An order will be signed in accordance with the foregoing opinion.