(dissenting):
The question of law for our determination in this case is, whether the appointment by the Governor of a Judge of “ The Municipal Court for the City of Wilmington ” is, without confirmation by the Senate, valid for a longer time than the end of the next session of the Senate.
The said Court was established by an act of the General Assembly passed April 13th, 1883, being Chapter 207 of 17 Laws of Delaware.
The said Court was so established pursuant to the provisions of Section 1 and Section 15 of Article 6 of the Constitution of 1831, and is an inferior Court within the meaning of the said provisions.
*394Wilmington vs. Vandegrift, 1 Marvel, 13, and Forbes vs. State, 2 Pennewill, 197.
If there be any existing provision of the said act establishing the said Municipal Court inconsistent with the present Constitution, whether the same relates to the appointment of the Judge of the said Court, to its jurisdiction, or to any other matter, such inconsistent provision must yield to the paramount authority of the present Constitution; but if there be no such inconsistent provision the said act remains in force, except so far as it has been altered by the General Assembly.—(Schedule, Section 18.)
By Section 14 of the said act it is made the duty of the Governor to- appoint and commission the Judge of said Court, but neither by said act, nor by any other act, nor by the Constitution of 1831, is confirmation by the Senate required. If such confimation is now necessary it must be by reason of something contained in the present Constitution.
Section 32 of Article 4 of the present Constitution provides that “ Justices of the Peace and the Judges of such courts as the General Assembly may establish pursuant to the provisions of Section 1 or Section 30 of this Article shall be appointed by the Governor, by and with the consent of a majority of all the members elected to the Senate,” etc., but the said Municipal Court was not established pursuant to the provisions of said Section 1 or Section 30 of Article 4 of the present Constitution but pursuant to the provisions of Section 1 and Section 15 of Article 6 of the Constitution of 1831.
While these sections of the two Constitutions are similar, they are not the same, and it would be an unwarrantable construction of the plain words of said Section 32, limited as they are to Judges of courts which may be established pursuant to the provisions of said Section 1 or Section 30, to extend them to include the Judge of a court established long before the present Constitution was made.
In ascertaining the meaning of a remedial provision of a Con*395stitution or statute, where the language is not clear, it is often necessary to consider the mischiefs intended to be prevented.
Under the Constitution of 1831, the Governor had very extensive powers of appointment, without being subject to the approval or control of any other department of the Government. For a long time this had been considered by many to be a dangerous power to be placed in the hands of any one man, and it is ° evident that the last Constitutional Convention shared in this opinion.
The proceedings of the Convention and the Constitution framed by it unmistakably disclose a purpose to diminish and restrict the powers of appointment to office theretofore exercised by the Governor.
If this be the general policy shown by the Constitution, whether we approve or disapprove of it, it should have great weight with us in construing the general provisions relating to appointments by the Governor.
To remedy the supposed evil, the new Constitution provided that many offices before filled by executive appointment, should be elective, and that all appointments which the Governor was or should be authorized to make, should, with a single exception, be subject to confirmation by the Senate.
For the same purpose—the curtailment of the appointing power of the Governor—the provision of the Constitution of 1831, that the Governor “ shall appoint all officers whose offices are es-established by this Constitution, or shall be established by law, and whose appointments are not herein otherwise provided for ” (Section 8 of Article 3), was omitted from the Constitution of 1897, and in lieu thereof was substituted the provision that the Governor “ shall have power, unless herein otherwise provided, to appoint, by and with the consent of a majority of all the members elected to the Senate, such officers as he is or may be authorized by this Constitution or by law to appoint.”—(Section 9 of Article 3.)
This change not merely imposed upon the Governor’s ap*396pointing power the necessity of confirmation by the Senate, but also diminished the number of offices to which he might appoint.
By the old Constitution he had power to appoint to all offices established by the Constitution, or by law, where the Constitution did not otherwise provide; but under the new Constitution his power of appointment is limited to such offices as he is or may be authorized by the Constitution or by law to appoint.
While the present Constitution makes specific provision for the appointment by the Governor, with the consent of the Senate, of certain other officers besides those mentioned in said Section 32 of Article 4, viz.: Section 10 of Article 3 as to the Secretary of State, Section 3 of Article 4 as to the Chancellor, Chief Justice and Associate Judges, and Section 3 of Article 11 as to the Commissioners of Agriculture, no attempt is made to enumerate all of the appointments by the Governor requiring confirmation by the Senate, as this would have led to needless prolixity, and might have resulted in the omission of some of them.
Hence the necessity of a general provision, sufficiently broad to comprehend all cases not specifically provided for. Section 9 of Article 3 makes such general provision as follows:
" He” (the Governor) "shall have power, unless herein otherwise provided, to appoint, by and with the consent of a majority of all the members elected to the Senate, such officers as he is or may be authorized by this Constitution or by law to appoint. He shall have power to fill all vacancies that may happen during the recess of the Senate, in offices to which he may appoint, except in the offices of Chancellor, Chief Justice and Associate Judges, by granting commissions which shall expire at the end of the next session of the Senate.” * * * " Unless herein otherwise provided, confirmation by the Senate of officers appointed by the Governor shall be required only where the salary, fees and emoluments of office shall exceed the sum of $500 annually.”
The only express exception to the above requirement of confirmation of officers appointed by the Governor, is of officers , whose *397salary, fees and emoluments of office do not exceed the sum of $500 annually. .
As the salary of the Judge of the said Municipal Court is fixed by statute, at the sum of $1500 annually, he is not within said exception.
The question remains whether he is within the general provision of said section requiring confirmation by the Senate.
While, as we have seen, the Municipal Court of the City of Wilmington is an inferior Court established pursuant to the provisions of Section 1 and Section 15 of Article 6 of the Constitution of 1831, it is of the same general character as if it had been established pursuant to the provisions of Section 1 and Section 30 of Article 4 of the Constitution of 1897.
If said Court had been established under the said provisions of the Constitution of 1897, confirmation of the appointment of its Judge would have been necessary under the express terms of Section 32 of Article 4' of said Constitution, but there can be no possible reason why confirmation by the Senate was not equally expedient in case of the appointment of a Judge of an inferior court of like character established under the said provisions of the Constitution of 1831.
Why, then, was not the express requirement of confirmation by the Senate made applicable by said Section 32 of Article 4 to the Judges of inferior courts which had been established before that time?
It could not have been because the convention was ignorant of the existence of any court of that character, because in the provision of Section 30 of Article 4 authorizing the General Assembly to give a to any inferior court by it established, or to be established,” jurisdiction of the criminal matters therein specified, we have a distinct recognition of the fact that one or more of such inferior courts then existed.
Forbes vs. State, 2 Pennewill, 202.
It is not to be presumed that the Convention entertained the *398inconsistent purpose of requiring confirmation of the Judges of all inferior courts thereafter to be established, and of - dispensing with it in case of the judges of all inferior courts of like character theretofore established.
It" may be that the convention did not deem the appointment and confirmation of the Judge or Judges of the single or very few then existing inferior courts a matter of such dignity and importance as to warrant a special provision; or it may be that the failure to make such special provision was a casus omissus, but in either case, or in any case, the general provisions of Section 9 of Article 3 are broad enough, and were obviously intended to cover this and all similar cases not covered by the special provisions relating to the appointment and confirmation of certain named officers.
While, the Constitution makes specific provision as to the appointment and confirmation of certain officers, in the strictest sense of the term State officers, it also by said Section 32 of Article 4, makes like specific provision as to certain officers, claimed not to be State officers.
There can be no doubt that the words, “ unless herein otherwise provided ” in said Section 9 of Article 3 refer equally to both of these classes of officers, and thus is shown the intention to apply the general provisions of said Section 9 to both of said classes of officers.
If, as has been shown, said Section 32 of Article 4 has no application to a Judge of the said Municipal Court, the maxim expressio unius est exclusio alterius cannot be interposed as an objection to the application of said Section 9 of Article 3 to such a Judge.
While the foregoing considerations, are in my judgment, conclusive as to the necessity of confirmation by the Senate in the present case, I am convinced that, in order to fully carry out the intention of the Convention, a much broader interpretation must be given to said Section 9 of Article 3.
Of course the word “ officers ” as used in said Section can be *399applied only to public officers, but in my opinion, it is not material whether the powers or duties of such officers extend to the whole State, or be limited to a part of it, such as a county, hundred, district, town, city or other territorial division, made or recognized by the State Constitution or law for governmental purposes.
Saving cases where the salary, etc., does not exceed $500 annually, and other cases where the Constitution otherwise provides, the only designation, definition or qualification in said section of the “officers” requiring confirmation, is that they be “ such officers as he” (theGovernor) “is or may be authorized by this Constitution or by law to appoint.”
Subject to said exceptions, this is the sole test, and it is sufficient. To impose any other would be to defeat or impair the general purpose and. policy of the Constitution, and qualify and control the proper meaning and application of the language of said Section 9.
To limit the application of the word “ officers ” in said section to State officers, in the strict sense of the term, would be to guard against only a part of the mischief intended to be prevented.
The history of legislation in this and other States shows many instances of acts conferring upon the Governor the power to appoint important officers theretofore otherwise chosen, and in no way connected with the general government of the State, and also to appoint commissions to take the place and exercise the functions of purely municipal or other local officers.
Surely it was the purpose of said section to subject such powers of appointment to the wholesome restraint of confirmation by the Senate.
In support of the contention that a Judge of the said Municipal Court is not within the meaning of the word “ officers ” as used in said Section 9 of Article 3, great reliance was placed upon State vs. Dallas, Gray vs. State and State vs. Wilmington.
The first of these cases, State vs. Dallas, 3 Yeates, 300 (1801), arose upon the construction and application of a provision of the *400Constitution of Pennsylvania, that “ lío member of Congress from this State, nor any person holding or exercising any office of trust or profit under the United States, shall, at the same time, hold or exercise the office of Judge, Secretary, Treasurer, Prothonotary, Register of Wills, Recorder of Deeds, Sheriff, or any office in this State, to which a salary is by law annexed.” Mr. Dallas, the defendant, held and exercised an office of trust and profit under the United States, and also the office of Recorder of the City of Philadelphia, and the question was, whether the latter office was within the said prohibition.
The Court held that in a strict legal sense of the word, the said Recorder was a Judge, but not such a Judge as the Constitution meant to prohibit from holding an office of trust or profit under the United States.
This conclusion was reached, not through any interpretation given to the words, “ or any office in this State,” etc., but by reason of the restriction placed by the Court upon the word “ Judge.”
The Court held that the word “ Judge” as used in said clause, did not include every judicial character in the State; that it included neither the Recorder of Philadelphia, (the Judge of a City Court) nor Justices of the Peace, nor Judges of the Courts of Quarter Sessions of the several counties, (both of the latter being parts of the judicial power of the State), but was applicable only to Judges of a particular class, viz: To the Judges of the Superior Court, the Judges of the Courts of Common Pleas and the Judges of the Court of Errors and Appeals.
It will be seen that the said Recorder was not excluded from the operation of said prohibition because he was a municipal officer, but because like the Judges of the courts of Quarter Sessions, he was not of the same class as the Judges of the higher Courts of the State.
In Gray vs. State, 2 Harr., 76, (1836) the Court merely decided that the Mayor’s Court for the City of Wilmington, as then constituted, had jurisdiction to try the offense of assault and *401battery. This decision of course implied that the said court was an inferior court within the meaning of the Constitution of 1831, and also that the officers composing said court, viz., the Mayor, Alderman and President of the City Council, or any two of them (none of whom were appointed by the Governor) were not within the provision of said Constitution, that the Governor “ shall appoint all officers whose offices are established by this Constitution, or shall be established by law, and whose appointments are not herein otherwise provided for.”
But the Court delivered no opinion whatsoever. The opinion printed in the report of the case was never pronounced, and a majority of the Court did not think it necessary to express their opinions at large on some of the points raised in the argument. The said opinion therefore must be regarded merely as an expression of the views of the Judge whose name it bears, and not as the opinion of the Court.
In State vs. Wilmington, 3 Harr., 2914 (1840), it was held that the office of City Treasurer of Wilmington (elective by popular vote under the provisions of the City Charter) was not “ a civil office in this State ” within the meaning of Section 8 of Article 7 of the Constitution of 1831, excluding ordained clergymen, etc., from holding “ any civil office in this State.”
Chief Justice Bayard, in delivering the opinion of the Court held that this provision “ was meant to establish the great political principle of the Separation of Church and State,” and that the words, “ civil office in this State,” should be construed to mean civil office in the frame of government, or political organization which it was the business of the Convention to establish, and which they did establish, and that said words were applicable only to State officers. These cases were not in the highest State courts, and in our present inquiry they afford us but little aid, as the constitutional provisions construed, and the facts to which they were applied, differ materially from those now under consideration.
The relations between the State and its municipal governments *402are now better understood in this State than when those decisions were made.
We no longer talk of municipal rights made secure by prescriptions or charter against legislative or constitutional interference.
Since Coyle vs. McIntyre, 7 Houst., 44 (1884), it has been understood to be settled in this State, that municipal corporations are State agencies for local government, and that notwithstanding the constitutional reservation of the rights, privileges, etc., of corporate bodies, the Legislature has the power, at any time, without their consent to alter, amend or abolish their charters.
If the Legislature deems any of the offices of a municipal corporation of sufficient importance to be made appointive by the » Governor, it may so provide, but, in my opinion, such appointments thereupon become subject to the provisions of said Section 9.
The limitation of the requirement of confirmation to offices where the salary, etc., exceeds $500 annually, will generally exclude from confirmation offices of a trivial character.
For the reasons above stated, I am of the opinion that the appointment by the Governor of Edwin R. Cochran, Jr., to the office of Judge of 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 judgment of the Court below should be affirmed.